By Richard Falk
3 May 2021 – Questions from Rodrigo Craveiro from Correio Braziliense, 27 Apr 2021, in response to Report of Human Rights Watch on Israeli Apartheid; it is followed by my responses to questions of Zahra Mirzafarjouyan on behalf of Mehr News Agency in Tehran, addressing some of the underlying causes of Palestinian grievances.
1- In the 213-page report, HRW accuses the Israeli authorities of crimes against humanity of apartheid and of persecuting the Palestinians. What do you have to say about it?
For a mainstream and highly respected NGO such HRW to make such accusations, backed by extensive documentation, is a major development, almost unthinkable a few years ago. There will certainly be hostile reactions from Israeli sources and governments supporting in Israel but many consequences will follow adverse to Israel. It is notable that this HRW Report came just months after the principal Israeli human rights NGO B’Tselem issued a similar bombshell report that also concluded that Israel was guilty of the crime of apartheid.
Although apartheid originated with the racist regime in South Africa the international crime of apartheid need not resemble those structures of white supremacy. It stands on its own.
It is also highly significant that the finding of apartheid pertains not just to occupied Palestine, but to Israel itself, or to the entirety of Palestine as it existed under the British mandate, that is, from the Jordan River to the Mediterranean Sea. This extended scope of criminality is explained not only by references to the similarity of discriminatory practices, but also by Israel annexationist moves against Jerusalem and the West Bank.
2- How do you see the use of the term “apartheid” for the situation in the Palestinian territories?
It is has been increasingly recognized by independent expert observers that the interplay of the Israeli state and the Palestinian people satisfies the core features of the crime of apartheid. The Israel Basic Law of 2018 made explicit the claim of Jewish supremacy by vesting the right of self-determination exclusively in the Jewish people.
It should be understood that the allegation of apartheid is based on the core feature of the crime, which is domination, systemic discrimination, and victimization so as to sustain Jewish supremacy over the Palestinians under their control. Apartheid is defined in the HRW Report by reference to comprehensive racial domination of Jews over Palestinians and in Article 7(j) of Rome Statute governing the International Criminal Court as one type of Crime Against Humanity. The most authoritative definition of apartheid from the perspective of international law is to be found in Article II of the 1973 International Convention on the Suppression of the Crime of Apartheid, which is reprinted in full because of its importance:
For the purpose of the present Convention, the term “the crime of apartheid”, which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:
(a) Denial to a member or members of a racial group or groups of the right to life and liberty of person:
(i) By murder of members of a racial group or groups;
(ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;
(iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
(c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
d) Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
(e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
(f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
It is clear that there is no legal requirement that Israeli apartheid resemble South African apartheid. The policies and practices may vary with national conditions, but it makes no difference so long as the core reliance on discriminatory practices to maintain racial or ethnic supremacy is present.
The HRW Report specifies the kinds of systemic discrimination that has been undertaken by Israeli apartheid to maintain Jewish domination and to secure Palestinian subordination. Among the principal policies and practices constituting Israeli apartheid are as follows: confiscation of Palestinian land; discriminatory issuance of building permits; restrictions on movement; manipulation of residency rights; discriminatory budgeting of public services; closure of Gaza; 99.7% conviction rate in Israeli military courts prosecuting Palestinians living under occupation.
3- The report recommends the prosecution of the International Criminal Court to open an investigation against the State of Israel for crimes against humanity and apartheid. How do you analyze this?
It is a simple matter. The HRW Report found overwhelming evidence of discriminatory practices based on the dual identities of Jew and Palestinian that seemed to establish a strong case for alleging apartheid as a Crime against Humanity under the Rome Statute. Israel is not a Party of the Rome Statute, and hence crimes on its territory are not within the jurisdictional reach of the ICC. However, Palestine is a Party, and as a result the ICC has legal authority to inquiry into alleged crimes committed on occupied Palestinian territories since Palestine became a Party,, which covers the West Bank, East Jerusalem, and Gaza. As it happens, the ICC decided earlier in 2021 that it possesses this authority to conduct criminal investigations of occupied Palestine with respect to Israeli crimes in violation of the law of war arising out of its military operations in Gaza back in 2014, its uses of excessive force in responding to Great March of Return in 2018, and its unlawful settlement activity in the West Bank and East Jerusalem.
Whether this will actually happen is problematic. The United States not only backs Israel in the contention that the ICC lacks authority to proceed against non-Parties, but has its own complaint arising from an investigation of its crimes in Afghanistan and some secret black sites in Europe where torture is alleged to have occurred of Afghan detainees. The ICC is a fragile international institutional with severe funding challenges that partly reflect the geopolitical
pressure it has come under in recent years since it began challenging the impunity of Western states. Whether the UN follows the recommendation of HRW to set up a commission of inquiry is more uncertain. It could happen despite furious opposition by Israel and its supporters, but if as is likely the findings and recommendations were similar to those of the HRW, it seems almost certain that their implementation will be effectively blocked, This has been the fate of the several UN formal inquiries into Israeli wrongdoing, most prominently the Goldstone Commission investigating the violations of the law of war during the Israeli attack on Gaza in 2008-2009. All these reports confirmed Israeli wrongdoing, yet all were blocked when it came to carrying out the policy recommendations.
And yet this report, and the trend to acknowledge credibly on the basis of evidence and legal analysis that Israel is an apartheid state is of lasting importance. It will spread and intensify the solidarity efforts of pro-Palestinian groups throughout the world. It will make it hard to smear such efforts as anti-Semitism. It will strengthen the resolve of Palestinian resistance. In years to come we may look back on this day when HRW issued its report as the turning point in the struggle. It is time to declare Palestine as the victor in the Legitimacy War for the control of the legal and moral discourse, the symbolic battlefield where many of the prolonged struggles of the last 75 years have been won and lost.
Questions from Zahra Mirzafarjouyan, Mehr News Agency (May 1, 2021), on Failures to Protect the Basic Rights of the Palestinian People
Have international organizations been successful in addressing the human rights situation in Palestine? If so, why are Israel’s human rights abuses still continuing?
International organizations, particularly the United Nations, has a mixed record when it comes to dealing with human rights violations in Palestine. The UN, especially the Human Rights Council, has a generally good record in identifying violations and recommending remedies. Such delimitations of Israeli behavior are important in validating Palestinian grievances and justifying international solidarity efforts. Unfortunately, this symbolic verification of wrongdoing with respect to human rights is not substantively implemented. All efforts to enforce human rights are
blocked by geopolitics, and particularly the United States. This interference takes various forms, including shielding Israel from accountability by the use of the veto power entrusted to the five Permanent Members of the Security Council.
In addition, Israel has defied the findings and recommendations of international organizations that have found it responsible for serious violations of international human rights standards and the norms of international humanitarian law without suffering from adverse consequences. Israel defends itself not by substantive claims that it has been falsely accused, but by contending falsely that its critics are guilty of antisemitism.
2. Why are most UN Security Council resolutions against the Israeli regime vetoed by the United States?
The United States has interpreted its ‘special relationship’ as obliging it to shield Israel from criticism at the UN and to block the implementation of any moves to hold Israel accountable. Partly the US Government takes such a position because of its strategic interests in the region and partly as a reflection of well-organized pro-Israeli lobbying,
which has been very effective with the US Congress. The UK and France, and the EU generally, have also supported Israel at the international level, although not as strongly as the US.
3. Which governments do you think play the biggest role in violating Palestinian rights?
It seems obvious that the US and the EU countries are most responsible. This reflects in part the broader conflict patterns in the Middle East, which focus on Iran. It is generally believed in the West that Iran seeks the destruction of the Jewish state, and this partly accounts for the strong backing of Israel as the last European colonial venture. It is my understanding that Iran opposes the Zionist Project so far as it seeks to extend Jewish supremacy over the non-Jewish residents of Israel and the Occupied Palestinian Territories. This supremacy has been recently determined to be an instance of the international crime of apartheid by the influential and politically independent human rights organization, Human Rights Watch, as well as by the leading human rights NGO in Israel, B’Tselem.
4. What is the mission of world public opinion, especially Europe and the United States, in dealing with such inhuman behavior?
There is an encouraging increase is solidarity support in Europe and the US for the Palestinian struggle to achieve basic rights. The BDS campaign is exerting pressure from without and below upon Israel in a manner similar to anti-apartheid campaign waged successfully against South Africa more than 25 years ago. Israel is losing the Legitimacy War to the Palestinian movement, and the history of anti-colonial movements has demonstrated that what happens with respect to the control of the legitimacy discourse is generally more important over time than what happens on the battlefield in terms of the ultimate political outcome of political struggles in the period since World War II.
5. How do you assess the internal situation in Israel, given the growing economic pressures and identity challenges in this society?
I think the electoral impasse in Israel is a clear indication that all is not well. Israel has drifted politically steadily to the right as to the pursuit of a diplomatic solution of the conflict with Palestine, and feels no current security pressure to scale back the ambitions of the Zionist movement. At the same time there are internal identity challenges evident in the tensions between the secular character of the Israeli state and the increasing leverage of extreme Orthodox Judaism. Whether the economic effects of the boycott and divestment efforts supporting Palestinian goals is being offset by the normalization agreements concluded with Arab governments at the end of 2020 remains to be seen.
6. Why have peace projects in the region, which are more in the interests of Israel, failed to move forward?
Israel relies on alleged security threats from Iran to keep its citizens mobilized and unified around this central challenge, although it is Israel that commits aggression against Iran and tries its best to prevent the revitalization of the JCPOA Nuclear Agreement, which will have the effect of eliminating US sanctions on Iran. There has been a shift in Israeli foreign policy priorities from the Palestinian/Arab threat, which has been neutralized at present, to the primacy of the Iranian threat. Iran is seen as threatening Israel’s nuclear weapons regional monopoly and as supporting groups throughout the region that are perceived as hostile to Israel’s interests, including Hamas, Hezbollah, and the Houthis. Israel is aware that the regional balance could shift quickly against it by future political developments, as well as by the deployment and development of weaponry that could challenge its security at home and throughout the region. So long as the Islamic Republic Tehran exists, Israel will base its foreign policy on aggressive military actions toward Iran. Israel has always felt that its regional security depends on opposing the consolidation of any strong regional actor that is sympathetic with the Palestinian struggle, such as Iran, Turkey, and Syria.
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB, author, co-author or editor of 60 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to two three-year terms as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and associated with the local campus of the University of California, and for several years chaired the Board of the Nuclear Age Peace Foundation. His most recent book is On Nuclear Weapons, Denuclearization, Demilitarization, and Disarmament (2019).
10 May 2021