Confronting Apartheid Through Critical Discussion by Ana María Arbeláez Trujillo and Jeff Handmaker

The history of apartheid in South Africa is generally well-known. Yet, apartheid is not exclusive to that country. According to international law, and on various social grounds, Israel too may be viewed as maintaining an apartheid regime. What does apartheid mean and how has the international community confronted both South African and contemporary regimes of apartheid? This article takes up this discussion, reflecting on a recent event organised at the ISS.


On 11th April 2019, ISS hosted an event  to critically discuss the concept of apartheid and its application. Inspired by the work of known South African legal scholar Professor John Dugard, who addressed this event, he and other panellists went beyond the legal-historical origins of apartheid in South Africa and explored its relevance to the longstanding impasse between Israel and the Palestinians.[i]

Beyond the legal foundations of apartheid in South Africa and it becoming a crime in international law, the panelists explored the social impact of apartheid as separate development and how civic organizations and governments have resisted or maintained this situation.

Apartheid under international law

According to international law, the crime of apartheid, as defined by article 7 of the Rome Statute of the International Criminal Court, is a crime against humanity. It consists of:

inhumane acts (…) committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

The origins of this crime can be traced to the racialized legal regime established in South Africa from 1948 to 1990, although its definition is not restricted to that particular case. To the contrary, it is now an established position within academia, among civil society organizations, and UN agencies that the policies of Israel towards the Palestinian population also may be legally classified as an apartheid regime.

According to Dugard, Israel is more disrespectful of international law than South Africa was. He underscored that South Africa had accepted the importance of complying with norms of international law, yet argued that these norms were not applicable to the facts. By contrast, despite being party to several Human Rights Conventions that South Africa never was,[ii] Israel disregards the applicability of international law norms. This includes the Israeli government’s refusal to recognise the jurisdiction of the International Court of Justice, which in 2004 confirmed that the construction of the wall in the Occupied Palestinian Territory, the settlements and associated regime were contrary to international law.[iii]

So, how does one explain such a dismissive attitude towards international law? Both Dugard and Shawan Jabarin, who also spoke at the event, agreed that a combination of State complicity and lack of political will on the part of the United States and the European Union to ensure that Israel respected human rights and other sources of international law played a crucial role in perpetuating Israel’s domination of the Palestinian people.

As Jabarin further highlighted, although legally it is possible to argue that Israel’s occupation has many features of apartheid and colonialism, when assessing how the concept of apartheid applies in the Israel-Palestine territory, a purely legal analysis is insufficient. It is critical to consider political factors and the daily conditions that people face under the regime.

How nationality works in Israel-Palestine

Israel does not legally-recognise Israeli nationality. Instead, Israelis and Palestinians experience profoundly different conditions and enjoy different privileges, depending on their legally-mandated, privileged nationality as Jewish, or in accordance with more than 130 other officially-recognised nationalities. By disassociating the concepts of nationality and citizenship, Israel enforces a particularly strict regime of separate development. Ronnie Barkan, who also addressed the event, argued strongly that apartheid went beyond its application to Israel’s occupation of Palestinian territories, noting that not every Israeli citizen enjoys the same rights. In other words, the dual-layered legal framework of Israel privileges Jewish nationality, while excluding and/or neglecting the rights of everyone else.

Moreover, Barkan argued that Israel was built upon this sophisticated dual-layered framework that on the surface seemed like a democracy, but only protected the rights of a privileged national group. For example, although Palestinians are allowed to vote, only candidates who recognize Israel as a Jewish state are permitted to participate in elections. In this sense, the participation of Palestinians in the political system is only apparent in so far as it does not have the potential to modify power structures, or their living conditions.

Nationality also determines who gets access to land and who is allowed to live in certain areas. The blockade of the Gaza Strip and the West Bank, the establishment of settlements and the forced displacement of Palestinians from their villages are further examples of inhuman practices, through which Israel exercises its control.

All panelists agreed that the issue went beyond domination. The long term goal of Israel’s apartheid regime is not merely to exercise control over Palestinians, but to expel them from the land.

Responses to challenge apartheid

In July 2018, Israel issued the “Nation-State Law”.[iv] Among other measures, the law declares that Israel is a Jewish state, and that the only official language is Hebrew, whereas previously the second official language was Arabic. The law is by no means the first, but possibly the most blatant effort to entrench apartheid. Protests from civil society have been considerable, including a stepping-up of the Palestinian-led Movement for Boycott, Divestment and Sanctions (the BDS Movement) until Israel respects Palestinian rights.

As observed by the third panelist, Nieuwhof, the BDS Movement offers an action perspective, a tool to mobilize citizens to pressure governments and companies to support the Palestinian people. One of the early achievements of the movement, she noted, was a decision by the Dutch Bank ASN to divest from Veolia, one of many companies that has generated profits from the illegal occupation of the territory of Palestine.

All in all, the event was both timely and highly-relevant to the ISS research agenda on social justice. Regardless of one’s views, it is important to preserve spaces for discussions like this, which allow us to explore a critical perspective regarding one of the most relevant social justice issues of our time.

[i] In addition to Dugard, Ronnie Barkan, an Israeli human rights activist and founder of the movement Boycott From Within shared his perspectives, together with Adri Nieuwhof, a long-standing human rights advocate who worked from the late 1970s with the Holland Committee for Southern Africa and Shawan Jabarin, a Palestinian human rights advocate, Commissioner of the International Commission of Jurists (ICJ) and General Director of the Al-Haq.
[ii] Israel is signatory of the International Convention on the Suppression and Punishment of the Crime of Apartheid (ratified on 1973), the International Convention on the Elimination of All Forms of Racial Discrimination (ratified on 1979), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (ratified on 1991), and the International Covenant on Civil and Political Rights (ratified on 1991).
[iii] Israel’s Supreme Court only partially recognised the ICJ’s ruling. See Susan Akram and Michael Lynk (2006) ‘The Wall and The Law: A Tale of Two Judgements’, Netherlands Quarterly of Human Rights 24(1): 61-106.
[iv] This was the subject of an earlier event, also organized at ISS.

Image Credit: © 2007 George Latuff. Wikicommons. Nelson Mandela, who spent 27 years in prison for fighting apartheid in South Africa, said that “our freedom is incomplete without the freedom of the Palestinians”.


About the authors:

Ana Maria ArbelaezAna María Arbeláez Trujillo is a recent graduate from the Erasmus Mundus Program in Public Policy. She is a lawyer and a specialist in Environmental Law. Her research interests are the political economy of extractivist industries, environmental conflicts, and rural development.

JeffHandmakerISSJeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

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