In the last few years, Palestinians and the solidarity movements in support of Palestinian rights have been successful in drawing attention to Israel as an apartheid state deserving of the same treatment as apartheid South Africa. Prominent individuals such as former U.S. President Jimmy Carter, South African Archbishop Desmond Tutu, UN Special Rapporteur on Human Rights Richard Falk and many others, have used the term apartheid at various moments to refer to Israel’s regime of gross violations of international law. But what is apartheid and exactly why is Israel an apartheid state? Most importantly, why should conscientious people across the world join the boycott, divestment and sanctions (BDS) movement against Israel, which has been growing over the last six years? These questions become timely in light of the Palestine Papers that were released in January of this year, which unmasked Israel as an intransigent player in the Israeli-Palestinian peace negotiations, and exposed the Palestinian Authority for its impotence in defending Palestinian rights.
What Is Apartheid?
Apartheid is an Afrikaans term meaning separation or apartness. While it was first used in the South African context and took the form of clear institutionalized and legalized segregation by white settlers over the rest of the population, apartheid later took on an international legal dimension. As a result, the “crime of apartheid” no longer exists as a crime limited to a South African-style apartheid context. Rather, the crime has come to hold a specific legal definition that was adopted by the 2002 Rome Statute of the International Criminal Court (ICC) and that has its basis in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
Under the Convention, the crime of apartheid is defined as “a crime against humanity . . . inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law.” Article II of the Convention defines the crime as “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,” and also includes “similar policies and practices of racial segregation and discrimination as practiced in southern Africa.” While South African style apartheid is one benchmark, the real determinant of the crime of apartheid is whether or not policies and practices of oppression fall under the list of violations included in Article II of the Convention.
Of particular significance, the crime speaks in terms of oppressor and oppressed (not majorities and minorities), and prohibits the institutionalization of racist discrimination and oppression in which racism is legally enshrined through state institutions. Racial discrimination is defined in international law as any distinction based on race, color, descent, or national or ethnic origin.
Why Is Israel an Apartheid State?
Based upon the definition of apartheid under international law, it becomes clear how and why Israel qualifies as an apartheid state vis-à-vis the Palestinians. In the West Bank and Gaza, the Israeli occupation has developed into a pervasive system of apartheid, which includes checkpoints, the Wall, house demolitions, destruction of property, denial of access to education, arbitrary imprisonment, and Israeli-only roads. Israel’s apartheid policies also extend to the Palestinian refugee population expelled from their lands in 1948 to make room for the creation of the state of Israel – in refusing to permit the return of these refugees Israel is in violation of Article 2c of the apartheid convention adopted by the ICC, as well as of of its other obligation under international law including UN Resolution 194.
What is most often contested, and what will be dealt with here, is the use of the term apartheid to describe Israeli practices towards the Arab citizens of Israel, namely, those Palestinians who remained in Israel after the creation of the state and who now hold Israeli citizenship.
Palestinian Citizens of Israel
Adalah: The Legal Center for Arab Minority Rights in Israel has documented over 20 laws that discriminate against Palestinian citizens of Israel (For details see the recently released “Inequality Report”). Like South Africa’s notorious population registration act, Israel has its own Population Registry Law (1965) whereby every citizen must register his or her nationality as defined by the state. In Israel, much of life is organized on the basis of nationality, which is defined primarily as either Jewish or Arab (there are other categories as well such as Druze and Bedouin). “Israeli” nationality has no place within this system, as demonstrated by rulings from the country’s Supreme Court rejecting cases calling for citizens to be allowed to register as Israeli.
Based upon this division of nationality, the Israeli government has created a two-tier system of citizenship, which privileges Jewish nationality. Amongst the laws that disparately privilege Jewish individuals is the Law of Return (1950). Under this law, all Jews can immigrate to Israel and then claim citizenship under the Citizenship Law. By contrast, Israel denies Palestinians expelled from Israel in 1948 their Right of Return under international law. Moreover, Palestinians are not able to marry Jews, and it is made difficult, under a ban on family unification, for them to marry other Palestinians who are not already Israeli citizens, such as those in the Diaspora. The recently passed Loyalty Oath is the most recent example of discrimination based on nationality, mandating that all new non-Jewish citizens take an oath of allegiance to Israel as a “Jewish” and “democratic” state.
In terms of land policy, Israel is also comparable to South Africa, where the Group Areas Act (1950) legally reserved 87% of South African land to whites. In Israel, 93% of land is reserved for Israel’s Jewish citizens. A document released by the Boycott National Committee details the restrictions on Palestinian use of these lands. According to this report, 17% of the reserved land cannot under any circumstances be owned or leased by Palestinians. On the remaining lands, Palestinians face a number of discriminatory hurdles that make it difficult to lease these parcels. For example, while Jews are given 49-year term leases, Palestinians often will only receive leases for 2-3 years. This, of course, does not include the situation in East Jerusalem, where the Israeli government has and continues to actively confiscate land legally owned by Palestinians.
These policies are but a few examples of the many laws that demonstrate the myth that is Israeli democracy. These discriminatory laws have existed since the founding of the Israeli state, and have been supported by both liberal and conservative Israeli governments. The tension between laws, such as the Loyalty Oath and the Population Registry Law, and Israel’s professed commitment to democratic values, pervades many aspects of political life. For example, in order to field candidates in parliamentary elections, Palestinian political parties in Israel must agree to support Israel as a Jewish and democratic state. In this context, the electoral process has become little more than a cover for racial discrimination. While Israeli laws may provide protection for women and the queer community, Palestinians receive no comparable legal rights. For many observers, it is this institutionalized discrimination against Palestinians within Israel’s political, legal, and social systems that has raised parallels between the treatment of Israeli Palestinians and black South Africans.
The BDS Movement
A number of factors led to the fall of the South African apartheid regime, including the disintegration of the Soviet Union. Many, especially in South Africa, agree that BDS also played an important role in bringing an end to the South African regime. For the Palestinian BDS movement, the revolutions sweeping across the Arab world may represent a game changing moment similar to the fall of the Soviet system. Together with the growth of the BDS movement itself, the Palestinians’ South Africa moment may have indeed arrived, as Omar Barghouti, a founder of the movement, has consistently asserted.
In 2005, Palestinian civil society put out a public call in support of BDS, following a 2004 initiative by the Palestinian Campaign for Academic and Cultural Boycott of Israel (PACBI) for a specifically academic and cultural boycott. The 2005 BDS call was quickly endorsed by over 170 Palestinian civil society organizations. Currently, near consensus exists in Palestinian society in support of the movement. BDS can take on many different forms, including military, economic, cultural, academic, sport and tourism boycotts. Whatever its focus, BDS is a long-term tool, a fact demonstrated by the decades long BDS struggle in South Africa.
Taking its lead from the successes of the South African anti-apartheid struggle, Palestinian BDS is a rights-based movement rooted in international law and in principles of human rights, justice, freedom and equality. It is first and foremost focused on liberation and equal rights for Palestinians, rather than on statehood. For this reason, the BDS movement does not take a position on a one versus two state solution. Instead, the movement is concerned primarily with three demands: 1) ending the occupation of all Arab lands; 2) achieving equal rights for Palestinian citizens of Israel, and 3) realizing the right of return for Palestinian refugees.
For the movement, these demands are not ones that can be compromised, without sacrificing Palestinian dignity. For the last several months, as Arab citizens across the Middle East and North Africa have stood up against autocracy and oppression, a reassertion of Arab dignity has been at the center of their demands. Similarly, as Palestinians have been struggling for their dignity for over 60 years, the BDS movement represents a powerful form of non-violent and ethical resistance in the face of occupation, settler-colonialism and apartheid.
Academic and Cultural Boycott of Israel
The Academic and Cultural Boycott of Israel has perhaps been the most controversial iteration of the Palestinian BDS movement. The main principle at the heart of the academic and cultural boycott’s guidelines is its focus on institutions rather than individuals. This means BDS does not target individual singers, cultural representatives or academics, but the institutions with which they deal.
Most recently, the University of Johannesburg (UJ) in South Africa took the bold and historic move of severing its institutional ties with Ben Gurion University (BGU), citing BGU’s complicity in Israel’s violations of Palestinian rights, as well as the BGU’s own discriminatory practices against Palestinians. Notably, as the boycott is not against individuals, the UJ decision explicitly stated that personal collaborations between professors at each institution could continue. Similarly, the boycott would not preclude lectures by Israeli speakers at universities around the world, so long as Israeli institutions do not sponsor those lectures.
Academic and cultural boycotts are an important part of the struggle because of their role in changing perceptions and views. The Israeli government is aware of this and has dedicated enormous resources and an entire campaign called “Brand Israel” to improve the country’s international image and to whitewash its illegal activities by giving a liberal facade to the regime. The academic and cultural boycott aims to counter this, while developing deeper connections between people based on common principles and a shared opposition against apartheid.
Israel and its defenders abroad have realized the effectiveness and success of BDS and have begun to challenge the movement by allocating funds to anti-BDS activities, as well as passing laws in Israel that would effectively criminalize the work of BDS activists. In the face of this counter-movement, it is time for conscientious people around the world to do more than pay lip service to the Palestinian struggle for justice and freedom, and to advocate and implement comprehensive boycotts against Israel’s apartheid policies. As a more empowered and progressive Middle East appears to be emerging, the Palestinians deserve no less than the dignity for which they have so patiently waited and struggled for over the last 60 years.