The use of apartheid to describe Israel or Israeli policies has become common place in certain liberal and leftist circles. The wall in the West Bank has become an “apartheid wall”, Israel an “apartheid regime” and Israel’s “apartheid policies” are regularly denounced. The evocation of apartheid in the Israeli-Palestinian conflict is thought to advance the cause of Palestinian in de-legitimizing the State of Israel and in linking Palestinians to the great triumph in South Africa over the racist regime in 1994. In this article (1), I (2) suggest that the use of the apartheid analogy is casual, unhistorical, and ultimately unhelpful.
The Palestinian’s greatest legal victory in the recent past was the International Court of Justice’s Advisory Opinion on the status of the West Bank wall (3). In its reasoning that the wall was illegal the Court provides useful review of the legal status of Palestine and Israel and in so reminds us that the international community’s response to apartheid has been very different. Beneath the forth of political rhetoric the more considered legal discourse is instructive.
In narrating the international legal responses to apartheid, Israel and occupied territories I want to suggest that these offer an essential point of departure for resolving the conflict. In revisiting the legal history of the two conflicts it becomes clear that the proponents of the apartheid analogy have forgotten or never knew the characteristics of South African apartheid – a system now dead for over a decade.
The election of the Hamas-led government in the Palestinian National Authority and the formation of the new Olmert government in Israel offer a new situation in which the politics of both Palestine and Israel have entered a new and fluid phase. In Israel a whole section of the political rights has now accepted the creation of a Palestinian state.
In Palestine, Hamas and Fatah are now forced debate the existence of Israel both internally and between their parties. The fixed positions of the past are being shaken. The politics of both societies have become less predictable while the existence of the status quo less tenable. In this situation sensitivity and openness to new moods as well as to new policies has become vital. The old ideological framework inherited in the main from the Cold War imperils our ability to understand what is needed to shape a new future in the Middle East. The apartheid analogy is such an inheritance.
The refrain that “Zionism is apartheid” has been part of the discourse of the Palestinian-Israeli conflict since the 1967. It emerged first from the Soviet Union as it attempted to position itself as the champion of anti-Imperialism and at the same time deal with potentially “disloyal” ethnic groups at home. However, with the demise of the USSR – and the decline of the politics it spawned – and the emergence of the Oslo peace process, the analogy become the property of fringe groups or movements still clinging to the corpse of communism. As the peace process appeared to collapse with the disaster of the 2000 Camp David talks leading to the outbreak of the second intifada and the Israeli response, the analogy gained fresh impetus.
The proposers of the academic boycott of Israel recalled it and increasingly the imagery of Israel as a racist regime seeped into the media and popular consciousness; the 10,000 words essay by Chris Mcgreal in the British Guardian newspaper scored a major propaganda victory for stale Soviet politics (4). This article will argue that not only is the Zionism/apartheid analogy inaccurate, but as references to key legal texts will show, the international community in reflective mood has never constructed the conflict in that framework. Excessive ideological rhetoric on both sides with a parallel tendency to attempt to de-legitimize the other fuels the conflict. This article is based on the assumption that both Israel and Palestine are equally legitimate and both must be equally free to determine their destinies.
May 1948
There are many coincidences in the history of the Palestinian-Israeli conflict and South Africa – the creation of the State of Israel and the electoral victory of the apartheid National Party both took place in May 1948. As curious is the fact that the then defeated South African Prime Minister, Jan Smuts had been an architect of the Mandate system of the League of Nations and was a staunch supporter of Zionism. However, this apparent intertwining of destinies is perhaps superficial.
In offering a comparative analysis of how the international legal community has reacted to apartheid and to Israel and the occupied Palestinian territories, it becomes clear that the radically different historical circumstances have constituted major differences in the legal discourses – and legal doctrine. In the context of this paper, the international legal community will be defined as the United Nations General Assembly, the Security Council and the International Court of Justice.
International law, it needs to be stressed, is created by the states of the international community. As the Statute of the International Court of Justice specifies, treaties, customs and major legal systems are sources of international law. Each of these sources is produced by state action. Additional ways of determining sources of law are through judicial decisions of international courts and scholarly writing, although these sources are described as “subsidiary”. (5)
In the United Nations age, the UN charter has become what Judge Bedjaou called a “primary source of international law” and decisions of the Security Council (6) and certain resolutions of the General Assembly can give rise to legal norms.(7)
However, the United Nations is a membership body for states and thus the norms of the Charter and the resolutions of the principal bodies are ultimately the collective will of states. International law therefore does not arise outside the international community but is a product of it. International law as we know it today has its roots in European colonialism and its doctrines and institutions bear the hall-mark of this heritage. (8)
The international legal community must therefore be handled with care especially by those who have high expectations of it. Of particular concern to this paper is the doctrine of self-determination of peoples, which developed into a legal norm in response to European colonialism in the 1960’s and 1970’s.(9) The right finds its application in the rejection of colonial regimes but in the acceptance of the territories originally created in imperial determined boundaries. The doctrine thus recognizes the delimitations of colonial conquest and guarantees self-government within those boundaries. The doctrine thus both recognizes the rights of peoples to freedom from colonial rule while not disturbing many of the consequences of conquest. (10) The legal doctrine of self-determination bears more of the hallmark of the colonial past than many appreciate.
The article will address first the framework of the discussion and then in turn discuss the legal responses to the occupied territories and apartheid.
A Necessary Framework
While I am going to focus on apartheid and the Post-1967 Israeli occupation, I am aware that behind this discussion is a broader ideological narrative of the comparison of apartheid and Zionism. (11) This discourse became widespread in the period after the 1967 War and was sustained in particular within the then socialist countries and much of the non-aligned movement. It argued that there was an essentialist colonialist and racist core to Zionism that had been cultivated in the interest of Imperialism – first by Britain and then by the United States. This policy was in particular pursued by the Soviet Union, which was also associated with an anti-Semitic campaign against its Jewish citizens. (12) However, this was not the consistent view of the Soviet Union towards Zionism which had in 1947 supported the United Nations General Assembly resolution 181 which proposed the creation of a Jewish State, by arguing that as a result of the war, the Jews as a people have suffered more than any other people. The total number of the Jewish population who perished at the hands of the Nazi executioners is estimated at approximately six million. The Jewish people are therefore striving to create a state of their own, and it would be unjust to deny them that right. (13)
Not only was the Soviet Union the first major power to recognize the State of Israel de jure (the United States at first only gave de facto recognition), but it also permitted significant arms sales to the Zionist movement and the newly created state through Czechoslovakia. (14) Nor was the view that Zionists were agents of Imperialism always the view of Palestinians opposed to Zionism. In the early 1920’s, objections to Jewish immigration were often posed in terms of opposition to the spread of communism – on account of the Russian origin of many Jews and the widespread support for socialist and communist politics. (15)
The history of ideological opposition to Zionism has been highly contradictory. In the wake of the 1967 war a coalition between the Soviet Union (and its allies) and the non-aligned movement created a majority in the UN General Assembly in favor of the 1975 resolution 3379 (XXX), which defined Zionism as a form of racism.(17) This one line resolution attached no consequences to the definition. It was rescinded by the General Assembly in 1991. That decision represented a widespread view that the resolution was not only highly ideological but also inaccurate.
The Palestine Liberation Organization (PLO) Covenant (1968) and the policy of the organization had proposed a Democratic Secular State in Palestine which sought the expulsion of Jews when had arrived after what was designated as the “Zionist invasion.” (17) The latter phrase attempted to conjure up the image of outside settlers arriving in a foreign land and imposing by force their rule upon the local inhabitants. Undoubtedly this imagery sought to make a link between the position of Palestinians and others who were victims of colonialism. However, the creation of the State of Israel had not been effected by an invasion. The Jewish population of Palestine was in place at the time and regarded itself as having a historical connection of the land – a position that had received the support of the international legal community in League of Nations Mandate for Palestine, which stated in the preamble that, “recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”.
Jewish immigration to Palestine had been slow after the adoption of the Mandate and the Jewish population grew from 80,000 in 1917 to 175,000 by 1931. The major increase in Jewish immigration took place as a result to Hitler’s assumption of power in Germany in January 1933. It is at that point that there is a steep growth in immigration bringing the Jewish community to about 475,000 by 1939. (18) Far from an invasion by the Zionists, Jews by and large, arrived as refugees fleeing persecution. It should also be stressed that Jewish acquisition of land in this pre-1948 period was quite unlike that of settlement colonies where land was normally allocated at nominal prices to the settlers. As Kimmerling has demonstrated the price of good agricultural land in Palestine in 1944 was $1050 per acre whereas it was only $45 an acre in the United States in the same year. (19)
Jews, despite amounting to about a third of the population of Palestine in 1948, only owned between 5.7 to 7% of the land. (20) It is worth pointing out that the term “Zionist invasion” does have a colonial origin in that it was first coined by Lord Delamere in 1903 who, as the leader of the British Settlers in Kenya, objected to Joseph Chamberlain’s suggestion of a Jewish settlement in that country. (23)
The Peace Process
The politics of Cold War gave way with the opening of direct and public Israeli-Palestinian talks. The process of negotiations initiated by the Madrid conference in 1991, and especially the Oslo Agreements 1993-1995 offered a new framework based on mutual recognition. However, the high expectations of the “peace process” waned as Israeli governments led by Benjamin Netanyahu and then Ehud Barak, slowed the negotiations and offered no realistic deal. When the Camp David conference broke down in September 2000 (22) so did faith amongst many Palestinians that a peaceful and viable two states solution was possible.
The PLO and the Palestinian National Authority, however, remained committed to negotiations with the aim of creating a sovereign Palestinian state in the West Bank and Gaza with its capital in East Jerusalem. Palestinian cynicism at the establishment of a genuine Palestinian state was underscored by the way in which Israeli governments, both Labor and Likud, had dramatically increased the number of settlers living in the West Bank – roughly doubling their number to 240,000 since 1992. (23) The increase in settlers was accompanied by the vast new road system linking the settlements which led to increased land expropriations. After September 2000 Israeli armed forces began to re-conquer the areas of the West Bank from which it has redeployed under the Oslo Agreements (about 22% was designated as area “A” which under the 1995 Interim Agreement which was designated as under exclusive Palestinian control.) (24)
In 2000 and 2001 the situation deteriorated as Palestinians were increasingly confined in their cities, towns and villages sometimes under curfew and always at the mercy of the Israeli checkpoints. The Israeli government, by February 2001 lead by Ariel Sharon, argued that it was responding to the intifada which had included attacks not only on the Israeli military but also on civilians especially through the terror attacks by suicide bombing. Counter-attacks by Israel, including “targeted assassinations”, the siege of the Mukata, President Arafat’s compound in Ramallah and the massive destruction of parts of Jenin appeared to confirm the view that peaceful negotiations were unviable. The Sharon government’s decision to build the wall in the West Bank on the grounds that it would be a “security barrier” to prevent suicide attacks ushered in a new round of land appropriations and increased restrictions for Palestinians.
These developments all saw a tendency for Palestinian discourses to return to the familiar themes of the 1970’s, and in particular to the analogy between Zionism and apartheid. This was driven by three realities on the ground. The first was the increased dependency of Palestinians in acquiring passes in order to travel beyond areas of formal Palestinian control. This recalled the pass laws of the apartheid regime. The second was the sense since the Camp David talks (July 2000/February2001) it appeared that the Palestinian state as envisaged in the Clinton parameters would be so hedged around with limitations on its sovereignty and geography that it would have the character of a Bantustan.
This analogy had been made in 1995 when the map of the interim agreement has been published, which had divided the West Bank into small discontinuous areas of Palestinian control that looked like the maps of apartheid’s Bantustans. The building of the wall was seen as the logical result of the process and rhetorically became known as the “apartheid wall”. The apartheid analogy, however, was not only rooted in these experiences but drew on the older discourse. This in turn meshed with the rise in interest amongst some Palestinian and other intellectuals in a one state solution as due to Israeli settlement activity in the West Bank, a Palestinian state seemed territorially compromised.
This “one-state solution” differed from the original PLO position in that it envisaged either a bi-national state or a unitary democratic state incorporating both the Israeli and Palestinian populations. However, the way in which the “one-state solution” was posed recycled much of the old discourses on Zionism which constructed it as an essentially racist ideology comparable to apartheid. At the core of the argument is the position that as Israel defines itself as a Jewish state this is an ethnic state based on a racial hierarchy. In this account Jews become the South African white population and the Palestinians the non-whites. The racist content of the state was seen in many laws which discriminate against non-Jews and in favor of Jews. (25) Any discriminatory laws are seen as proof of a racist regime a position which if systematically argued would find almost all states as mainly characterized by racism. However, some apparently discriminatory laws, such as the 1950 Law of Return should perhaps be seen as affirmative action in that it turned the Nazi discrimination and definition of a Jew into the basis for citizenship in Israel. Israel does have laws which in various ways discriminate against non-Jews. It does particularly in the area of land rights and immigration policy in relationship to Palestinian refugees. Interesting such laws are increasingly seen by the Israeli courts as inconsistent with Israeli basic laws on human rights.
The view that Israeli as a state based on ethnic-nationalism is inevitably racist is a highly problematic. First most European states defined themselves as nation-states and ethnicity has played a major role in sustaining nationalism. Within the Middle East the relationship between ethnicity and state formation is clearly at work in Turkey where constitution defines a citizen as a Turk (despite the 30% of the population who are Kurdish), and Egypt’s official title is the “Arab Republic of Egypt” (and yet it contains large Coptic, Nubian and Berber minorities). It is not the case that supporters of the Kurdish right to self determination are denounced as racist who seek establish an exclusive ethnic state. Nor is it the case that states not based on ethnic-nationalism are consequently accommodating to the indigenous populations as the example of the United States and the position of First Nation American graphically demonstrates.
The view that suggests that the attempt to create an ethnic-national state is either motivated by racism or unique is thus highly problematic given any serious study of nationalism. (26) Zionism is a form of nationalism which along with other all other nationalisms is necessarily based on the privilege of inclusion and the discrimination of exclusion. Indeed this is the (problematic) basis of citizenship in any state. Again as with other nationalisms there are various narratives. Zionism cannot be seen as a singular category given the vast range of trends within it, ranging through secular socialism, religious Zionism, communism, bi-nationalism, liberalism and racist nationalism.
In the essentialist argument also sees Zionism as inevitably territorially expansionist, the 1967 war and the subsequent settlement policy, are used as conclusive proof. (27) However, this would also suggest that the Israeli occupation of the West Bank and Gaza has been a unique instance of prolonged occupation. Unfortunately this is not the case as examples of China in Tibet, Turkey in Northern Cyprus and Morocco in Western Sahara demonstrate. In each of these cases the occupying power has also moved settlers into the territories with the aim of changing the ethnic balance in their favor – and also in defiance of international law.
The construction of Israel as aberrant in the international community has the purpose of making the case for its illegitimate existence. Dismantling Zionism is then put on a par with apartheid and the only solution is to rid the world of another racist state by applying the same solution as in South Africa. (28) There is another dimension of the analogy which is the view that if the tale of Israel’s racial character can be embedded in the international conscience then a movement similar to the scope of the anti-apartheid movement could be built in solidarity with the Palestinian people. It is against this background the purpose of the argument is clearly seen. First establish Israel’s illegitimacy and then act towards as apartheid South Africa, attempt to isolate it economically, culturally and diplomatically. In this account the issue is not an illegal occupation but and illegal regime. It was however, Edward Said who questioned this approach when he wrote:
Unquestionably the moral dilemma faced by anyone trying to come to terms with the Palestinian-Israeli conflict is a deep one. Israeli Jews are not the white settlers of the stripe that colonized Algeria or South Africa though they have used similar methods. They are correctly seen as the victims of a long history of Western, largely Christian, ant-Semitic persecution that culminated in the Holocaust. To Palestinians, however, their own role is that of victims of the victims. That is why Western liberals who openly espoused the anti-apartheid movement… and many other causes of that kind have shied away from openly endorsing Palestinian self-determination. (29)
Said did write a great deal about the comparisons between South Africa and the Palestinian-Israeli conflict. However, the mian comparison was not between apartheid and Zionism but between the politics of the African National Congress and the PLO. Said constantly took the PLO to task for its failure to project the moral case for the Palestinians and to embrace the inclusive approach of the ANC. He also constantly criticized the PLO for lacking the initiative in proposing a future dispensation, as ANC had done, as he put it:
This is the great lesson of the South African struggle: It proposed a vision of a multicultural society from which neither individuals not groups and leaders were ever deflected. The only vision coming out of Israel today is violence, forcible separation, and the continued subordination of Palestinians to an idea of Jewish supremacy. Not every Israeli believes in these things, of course, but it must be up to us to project the idea of coexistence in two states that have natural relations with on the basis of sovereignty and equality. (30)
Said’s argument in favor of two state-solution in this context can clearly be distinguished from the necessity to dismantle apartheid.
Israel is thus lacks the features of an apartheid state. The Palestinian, Druze and other minorities in Israel are guaranteed equal rights under the Basic Laws. All citizens of Israel vote in elections on an equal basis. There are no legal restrictions on movement, employment or sexual or marital relations. The universities are integrated. Opponents of Zionism have free speech and assembly and may form political organizations.
South African apartheid denied non-whites the right to vote, decreed where they could live and work, made sex and marriage across the racial divide illegal, forbad opponents of the regime to express their views, banned the liberation movements and maintained segregated universities. This is not to say that there are not laws in Israel – particularly in the area of land rights – that are not discriminatory. There are. There are many contradictions between rights guaranteed in the Israeli Declaration of Independence and the Basic laws and other areas of the law and indeed social practices. As has been mentioned these are often glaring ones. (31)
The Israeli human rights movement has been active in attempting to transform the rhetoric of the basic laws into a legally guaranteed reality. This is not unlike, for example, the role of the American civil rights movement in the 1960’s and 1970’s, which campaign against discriminatory laws and did not call for the destruction of the United States. Essentialist critiques of Israel do tend to assume that other states are bastions of healthy, almost natural, nationalisms and havens of non-discrimination.
The Legal Status of Israel, the West Bank, Gaza and East Jerusalem
The International Court of Justice’s Advisory Opinion on the Wall is the latest authoritative legal statement on the status of Israel, the West Bank, Gaza and East Jerusalem. (32) The opinion is important not only in establishing the illegality of the construction of the wall but in the arguments that it uses to reach this conclusion – which recalls the legal history of the Palestinian-Israeli conflict. In establishing the issue the court began from the origin of Palestine as part of Ottoman Empire and how at the end of the First World War the League of Nations Covenant article 22 provided for the Mandate system for former Ottoman possessions and that Palestine was subject to such a mandate. It also pointed out that the boundaries of Palestine were established through the provisions of the Mandate through the 1922 British memorandum and the Anglo-Transjordanian Treaty of 1928 (see paragraph 70).
It is important to note the Mandate is regarded by the Court as a relevant source of law and therefore we should assume that the terms of the Mandate which included the “establishment in Palestine of a national home for the Jewish people” must also be part of the positive law in assessing the legal status of the territories we are discussing.
The Palestinian Arab community comprised some 88% of the population in 1922 when the Mandate was adopted. Through its representatives it objected to the inclusion of the terms of the Balfour Declaration. However, these representations, made at international conferences and directly to the British Colonial office failed. Indeed the final text went further than the Declaration and, as we have seen, gave recognition to the “historical connection of the Jewish People with Palestine and the grounds for the reconstruction of their national home in that country.”
This creates or confirms an international legal norm that that has three significant implications: (a) the Jewish people are granted a degree of international legal personality; (b) that an aspect of that personality is derived from a historical connection with Palestine, and (c) that the national home in Palestine will be reconstituted rather than established afresh.
The concept of a national home was novel and the choice of term clearly sought to avoid the use of state – which was studiously avoided during the drafting of the Balfour Declaration. (33) Not only did the Palestinian Arab community object to the Mandate but sought to argue it was illegal. (34) This view that any action to recognize the Jewish People as a legal entity or that it has some degree of legitimacy in Palestine has been a common thread in the Palestinian legal narrative. (35)
It has also been argued by non-Palestinian international lawyers believing that it assists the Palestinian cause. (36) This position, however, is highly problematic, as, in this argument, international law is constructed as a system of norms unrelated to the discourse arising from its sources, doctrines and institutions. The suggestion that the Mandate was in some senses illegal and invalid would involve a challenge not to its validity per se but to the entire legal order that created it.
The international legal order that produced the Mandate system was undoubtedly the product of a colonial order, just as the United Nations system was a product of the Great Power realities of the end of the Second World War. While we might have ethical and ideological critiques of the resultant legal orders it does not mean that such critiques themselves assume a legal character.
The International Court of Justice also referred to the United Nations partition plan (General Assembly resolution 181 (II), 1947). This resolution was the result of the majority recommendation of the United Nations Special Commission for Palestine (UNSCOP) which was established when the British announced that they would withdraw from Palestine in 1948. The Committee’s report envisaged the creation of a Jewish State and an Arab State in Palestine with an international regime for Jerusalem and the Bethlehem area – although within an economic union. The plan rejected any forced movement of populations and Jews and Arabs who found themselves on either side of the boundary were guaranteed their property rights. (37)
The Palestinian Arab representatives and the Arab world as a whole had boycotted the committee and announced in advance they would reject any decision of the United Nations General Assembly unless it favored a unitary state of all of Palestine. Before the adoption of the resolution the Political Committee of the Arab League issued a statement:
The Committee will regard the implementation of these recommendations as a certain danger menacing security in the Palestine, and security and peace all over the Arab countries. Therefore it has determined by all practical and effective means to resist the implementation of these recommendations. They – the Palestinian Arabs – will launch a relentless war to repel this attack on their country especially so as they know that all Arab countries will back them and assist them, supplying them with men, funds and ammunitions” (38)
After the resolution was adopted Adul Rahman Azzam, the Secretary-General of the League formally announced on its behalf that, “This war will be a war of extermination and a momentous massacre which will be spoken of like the Mongol massacres and the Crusades.” (39) Thus it is clear that the Arab League not merely opposed the partition plan but which sought to use force to prevent its implementation. Such action was specifically contrary to article 2(4) of the United Nations Charter which states that “members must refrain from the threat or the use of force against the territorial integrity or political independence of any state: or in any other matter inconsistent with the purposes of the United Nations”. The latter article would apply to both threatening and then using force to attempt to frustrate the General Assembly resolution.
There have been various arguments deployed to suggest that the UN resolution is also illegal. The first is that the character of General Assembly resolutions is that they are merely “recommendations”. (40) However, the partition resolution was addressed in part to the Mandatory power as the ICJ reminds us (in paragraph 71) in its formulation that it “recommends to the United Kingdom…and to all other Members of the United Nations the adoption and implementation… of the plan of partition”.
The intention is clear that the plan should be implemented by the members of the United Nations. The British response was clearly expressed in the British House of Commons by the Colonial Secretary Creech-Jones:
The decision of the Assembly is regarded by His Majesty’s Government as the decision of a court of international opinion. This is not a grudging acceptance…we wish our authority to be transferred to our successors in an orderly manner. We can only express our hope…that the greatest respect will be shown for this decision of the international authority. (41)
The fact that the resolution may not be mandatory does not make it invalid to comply with it. States complying with this permissive resolution could hardly bee seen as in breach of the Charter or international law. It is also the case that as the United Nations has evolved, some resolutions of the General Assembly have, in any event been regarded as creating legal norms and obligations as evidenced by the International Court of Justice’s discussion of this resolution in the case. (42)
The second argument for the illegality of the resolution is based on a view that the United Nations lacked the power to partition Palestine and that it could not act unless the people of Palestinian as a whole gave their assent, on the grounds that the people possessed sovereignty. Cattan expresses the view that:
the UN possessed no power to decide the partition of Palestine, or to assign any part of the country to a religious minority of alien immigrants in order that they might establish a state of their own. The UN could not give what it did not possess. Neither individually, nor collectively could the members of the UN alienate, reduce, or impair the sovereignty of the people of Palestine, or dispose of their territory, or destroy by partition the territorial integrity of their country. (43)
However, while in democratic theory the people might be endowed with sovereignty, in international law only states are. As the peoples of Palestine had been living under a mandate created by the League of Nations and administered by the British Colonial Office – with the full approval of the League of Nations Permanent Mandates Commission – Palestine was not a state and did not posses sovereignty.
It is also worth stressing that despite this the UN did attempt to consult both peoples of Palestine through the UNSCOP but the Palestinian Arab’s representatives refused to recognize it. In addition the United Nations Charter in article 103 creates a hierarchy of sources of international law as it states that “in the event of a conflict between an obligation under the Charter and another international obligation, the obligation under the Charter shall prevail”. Resolutions adopted by the United Nations principal organs are such obligations under the Charter as the Lockerbie Case (1992) clarified. (44)
When the British withdrew from Palestine on May 14 1948 the State of Israel was proclaimed. The neighboring Arab states together with irregular forces attacked the new state and in the course of the war Israel extended the areas of its control from the 54% intended by the partition resolution to 78% of Mandate Palestine including West Jerusalem. During the war 700,000 Palestinians fled or were expelled by Israeli forces from this territory. (45) At the end of hostilities a general armistice agreement provided for clear lines of demarcation between the parties (the ICJ highlights the Rhodes agreement between Israel and Jordan, April 3 1949) (46) which became known as the Green Line. (47)
In 1967 during the Six Day War Israel conquered the West Bank, Gaza and East Jerusalem. Again the ICJ refers to the key Security Council resolution passed in November of that year, resolution 242 (48) which in the Court’s summary, “emphasized the inadmissibility of acquisition of territory by force and called for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict”, and “termination of all claims or states of Belligerency” (paragraph 74).
As a consequence of the norms contained in this resolution the Security Council has regularly adopted resolutions which define as null and void acts that Israel has taken in the West Bank, Gaza and East Jerusalem to treat the territory as their own, demonstrated by the building of settlements and the purported annexation of East Jerusalem and some adjacent West Bank areas. After the latter act the Security Council adopted resolution 478 (1980) which states that, “All legislative and administrative measures and actions taken by Israel, the Occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem… are null and void”.
Taking the key three legal texts together, which the ICJ refers to, the Mandate, the Partition resolution and Security Council resolution 242, the status of the West Bank, Gaza and East Jerusalem are seen as occupied territories under international law. The significance of this is that the regime of protection for peoples under occupation contained in the Geneva Convention IV applies. Significantly the ICJ regards the area to the west of the Green Line as “the territory of Israel itself” (paragraph 67)”.
The Court’s clarification makes a clear legal distinction between the area west of the Green Line (Israel) and the area to the east (Palestinian territory). The occupation is the characterized as contrary to the right of self-determination of the Palestinian people which means that the building of the wall on occupied territory is illegal. The Court does not regard the building of the wall on Israeli territory as illegal (again see paragraph 67).
Thus, it is worth underlining the jurisprudence of the court that the area that was until 1948 Mandate Palestine is designated as two distinct territories, Israel and Occupied Palestinian Territory. This reflects the international community’s view of the Palestinian-Israeli conflict since 1922 at least, that there are two legitimate peoples in the country. In 1947 the view was that the best way of dealing with this recognition was the creation of two states on the basis of territorial division.
This position has been quite persistent and surfaced again in the international support for the Oslo Agreements in 1993, which implicitly promoted a two state solution and in the Performance Related Roadmap for Peace, 2003 which envisages a “Palestinian state living alongside Israel”. (49) The roadmap was preceded by Security Council resolution 1397 (2002) that also puts the Council’s imprimatur on this option.
In outlining its opinion the International Court of Justice at no time makes an analogy with apartheid. The critical areas of law that the Court discusses are, self-determination, international humanitarian law, human rights law and the doctrine of self-defense. The references to human rights law are not framed in the context of apartheid or racism. Palestinian Occupied Territory is the victim of a colonial occupation that has now lasted for nearly four decades.
The wall symbolizes not a record of the application of apartheid but attempts at the annexation of territory as the route of wall is dictated by the Israeli government’s attempt to incorporate the many of the illegally built settlements on the western side of the wall alongside Israel.
In addition the wall represents the super-security colonial regime. Beyond the wall on its eastern side Palestinians are intimately regulated through a system of checkpoints and passes. The attempt to change the ethnic population balance through settlements together with the massive land appropriations (for the settlements, the wall and the road system) are all contrary to the provisions of Geneva Convention IV (1949). These actions are also contrary to the United Nations General Assembly resolution 2625 of 1970 which states that colonial regimes are not permitted to treat a colony as if it is its own territory.
The Court took the view thus, that the legal issue at stake is the occupation of Palestinian territory which constitutes a denial of the right to self-determination. In doing so quite clearly it turns to the next legal sources which are the texts of the Oslo peace process. (51) As the Opinion states,
as regards the principle of the right to self-determination, the Court observes that the existence of a “Palestinian people” is no longer in doubt. Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PL) and Mr. Yitzhak Rabin, the Israeli Prime Minister. In that correspondence, the President of the PLO recognized “the right of the State of Israel to exist in peace and security” and made other commitments. In reply, the Israeli prime Minister informed him that, in the light of those commitments, “the government of Israel has decided to recognize the PLO as the representative of the Palestinian people”. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its “legitimate rights” (Preamble, paras 4,7, 8; Article II, para 3; Article III, paras 1 and 3; Article XXII, para 2). The Court considers that these rights include the right to self-determination, as the General Assembly has recognized on a number of occasions (see for example, resolution 58/163 of 22 December 2003).(51)
In concluding this section of the opinion the Court it says “that construction [of the wall] along with other measures taken previously, [settlements] seriously impedes the right to self-determination, and is therefore a breach of Israel’s obligations to respect that right”. (52)
The Court’s Opinion has great significance in establishing the sources of law that determines the status of the territories on each side of the Green Line. Through its reading of the Mandate, the partition resolution, Security Council resolution 242, the Oslo peace agreements and the Roadmap the court develops the basis of the current legal status of Israel and Palestine. Many legal arguments that have challenged the validity of some or all of these sources are rejected by the Court. Its position is that we are dealing with two peoples, both of which have international legal personality and both of which are endowed with the right of self-determination.
While all Israeli activity in Palestinian territory is confirmed as illegal and null and void – including the construction of the wall – the legitimacy of the State of Israel is also re-affirmed. The opinion also represents a development of legal doctrine in the conflict by talking of the territory to the west of the Green Line “as the territory of Israel itself” (paragraph 67). This has two important implications. The first is that the Green Line originally demarcated as an armistice boundary appears to have acquired the status of an international boundary. The second is that the status of Jerusalem which has been regarded since 1947 as indeterminate (due to its assigned international status under the partition resolution) has been altered. Under this new formulation, West Jerusalem is part of Israel and East Jerusalem part of Palestine – albeit occupied Palestine.
The Court’s concluding paragraph outlines the international legal community’s support for a two state solution which it stresses has to be seen within the framework of this legal lineage.
The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law….The Court considers itself bound to add that the construction must be placed in a more general context. Since 1947, the year when the General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory. The Court would emphasize how both Israel and Palestine are under an obligation to scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life. Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through the application in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The “roadmap” approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end. The Court considers that it has a duty to draw the attention of the attention of the General Assembly, to which the present Opinion is addressed, to the needs for this efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region. (53)
The Opinion of the Court constitutes an authoritative clarification of the law on the status of Israel and Palestine. Both are regarded as legitimate. The absence of any reference to the jurisprudence of the Court where apartheid was an issue such as in the South West Africa cases (1966) (54) and the Namibia case (1971) (55) was in striking. In those cases one of the issues at stake was the application of apartheid to a former mandated territory. The Court makes no comparisons with that situation, not does it suggest the character of Israeli occupation of Palestine constitutes a racist regime.
South Africa and Apartheid
South Africa was a founding member of the United Nations and although the policy of apartheid was as yet to be adopted the Union of South Africa was based on a racist constitution which denied equality in terms of the vote and the right to own land. The South African 1910 Constitution (a 1909 Act of the British Parliament) provided for some representation of the non-white majority providing the candidate elected where white. The election of the National Party in May 1948 ushered in the new policy of apartheid. Apartheid sought to make consistent the political and legal realities of the deeply racist and segregated South African society. Racial oppression had begin with the arrival in the Cape of Dutch in 1652. When the Dutch ceded to the British in the early nineteenth century there was a sizable Dutch-speaking white population. The new British colonial regime, and the new English speaking settlers, while racist were more paternalistic towards the non-white populations than the Dutch. As a result of conflicts between the British and the Dutch populations the Great Trek took place (beginning in 1836) where the latter moved into what is today KwaZulu Natal and then into the interior. (56)
They eventually established two independent racist republics, the Transvaal and the Orange Free State. The African population was assigned the status of slaves or servants and their land was seized from them and allocated to white framers. With the discovery of gold in the Transvaal British interest in the area increased which lead to the Anglo-South African war of 1899-1902 (sometimes referred to the as the Boer War in English accounts). The vicious conflict saw the British use concentration camps in an attempt to separate the civilian population – mainly women, children and aged – from the Afrikaner militia fighters, where 26,000 of them died. After the war the British adopted a policy of reconciliation between two white populations. This resulted in the creation of the Union of South Africa. (57)
This history has many resonances in the discussion of apartheid and Zionism. In the 1970’s as the attempt to build the comparison was being made in the disciplines of history, political science and sociology a link was made between the Britain’s policy in Africa at the beginning of the twentieth century and Zionism, long before apartheid. In 1902 after the end of the Anglo-South African war the British Colonial Secretary, Joseph Chamberlain, approached Theodor Herzl and the Zionist movement with a proposal to create a Jewish colony in East Africa. (58) Richard Stevens in various pieces, for example attempts to build the case that this was proof of along term association of Jews and Zionism with racism. (59) In one article he argues the connections thus:
A recent visitor to South Africa, Chamberlain realized that the ultimate success of his white conciliation policy in the post-Boer War era might turn on whether he received Jewish support. Faced with crushing financial burdens in the war’s aftermath, the Colonial Secretary was aware that only the great industrial and mineral wealth of the Rand could bring about the reconstruction of South Africa. Yet of all the British Dominions, South Africa was the one in which Jews and Jewish capital were the most deeply interested. As Julian Amery, Chamberlain’s biographer noted, “the Rand, in particular, was mainly in Jewish hands, and …it was upon its prosperity that Chamberlain and Milner countered for the reconstruction and future progress of South Africa.” (60)
This is indicative of the type of argument that is being advanced. Jews are portrayed as powerfully positioned and wealthy. However, any research on Jewish connections with the Rand in early twentieth century will yield the name of only one Industrialist of Jewish origin (Max Mangermann). The idea that the creation of the racist Union of South Africa turned on Jewish support must be part of the realm of conspiracy theory at its crudest. It is also significant that the source of Stevens “Jewish connection” comes from the arch-Imperialist British politician Julian Amery.
This footnote in the history of the analogy between apartheid and Zionism is significant I think, as it suggest the lengths to which its proponents will go in constructing fake foundational moments – although passed of as fact. It is also interesting how the alleged connection is made between Jews, and Zionists in and the creation of racist South Africa. Stevens even claims that later, under apartheid, “Afrikaaner Settler ideology could thus bend in favor of pragmatic gains (as witnessed in 1947-8 by shedding its anti-Semitic character and adoption of its pro-Israel policy to win the Jewish vote).” (61)
Historically of course during the critical months of this period – November 1947-May 14 1948 – it was Smuts’ United Party and not the apartheid National Party that was in power. Thus by the time that National Party assumed office Israel had already been recognized by South Africa. As for the point about winning the Jewish vote, the National Party leadership was even in the 1960’s castigating Jewish voters for backing the anti-Apartheid Progressive Party, who’s sole Member of Parliament was the Jewish politician, Helen Suzman. (62)
In 1948 the National Party government of F.D. Malan sought to transform the previous three centuries of racist colonial regimes it into a systematic institutional framework on a permanent basis. The pillars of the apartheid system took the form of two laws, the Population Registration Act, 1950 and the Group Areas Act 1950. The first classified all South Africa’s population into White, African Colored and Indian. This was to be done at birth and all arguments as to which racial group a person belonged to would be decided by a Racial Classification Board.
The Second zoned South Africa into areas in which the different races would then be compelled to live. Apartheid was thus based a rigid separation of the racial groups. This was underlined by the Prohibition of Mixed Marriages Act 1949, and the Immorality Amendment Act, 1950 (as amended in 1957) which made marriage and sexual relations across racial divisions illegal. Through employment and labor laws certain jobs were reserved for white people and wages for whites were fixed on a far higher scale than for non-whites. At the political level all non-white influence was eradicated from state institutions. The few non-whites who could vote for Parliament were removed from the electoral roll and all power was securely places in the hands of white people (Separate Representation of Voters Act 1951).
Land ownership for Africans was restricted to the 13.5% allocated by the Native Land Act 1913. These areas were eventually reconceived as Bantustans which were to become the so-called homelands for the 80% of the population who were African. The consequence of this policy was that all Africans living outside of these areas were treated as if they were outside of their own country and were deprived of their South African citizenship (Bantu Homelands Citizen Act 1970). This reinforced the system of internal visas known as the pass laws. These passes allowed Africans to live outside the homeland (to which many had never even been) provided they had a job and were of course restricted to living in African-only townships.
Failure to carry the pass was a criminal offense and tens of thousands of Africans who were held to be in contravention of the pass laws were effectively deported to the homelands. Education was strictly segregated. The syllabus was ideologically informed to provide “Bantu education” aimed to teach Africans their subordinate role (Bantu Education Act 1953). White “Christian-national” education taught the opposite, that whites were superior which was divinely ordained. Universities were segregated on racial lines through the misnamed “Extension of University Education Act of 1959”.
In addition to this grand racist design, many laws and by-laws were introduced to enforce what became known as “petty apartheid” which created racial segregation for public transport, entrances to public buildings, park benches, beaches and restaurants (Reservation of Separate Amenities Act, 1953). The widely drawn Suppression of Communism Act 1950 curtailed free speech and by 1960 the African National Congress and other liberation movements had been banned. (63)
The United Nations Response to Apartheid<
The National Party government policy to classify all people according to race and then to allocate all rights on that basis was in contradiction to the United Nations Charter which promotes human rights with discrimination on the basis of “race, sex and religion” (article 1(3) UN Charter). Despite this South Africa remained a member of the UN. However, as the United Nations matured especially with the admission of previous colonial territories the application of the Charter changed significantly especially with the adoption of the UN General Assembly resolution 1514 on the granting of independence to colonial peoples and territories in 1960.
In the early 1960’s there are a series of UN Security Council resolutions which condemned apartheid as being contrary to the United Nations Charter. (64) This collective view crystallized eventually into the International Convention on the Suppression and Punishment of the Crime of Apartheid (UN General Assembly resolution 3068 [XXVIII] in 1973 – it came into force in July 1976.) (65)
The Convention defined the crime of apartheid in article II as follows:
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
The Convention’s definition of the crime of apartheid is set in the context of making illegal the racial system that the apartheid government introduced. The seven different crimes are clearly mapped on to the South African legislation. While the convention is drafted in such a way that the crimes could be committed by any government carrying out these policies they are placed in the context of “similar policies and practices of racial segregation and discrimination as practised in southern Africa”.
At the time of the adoption of the Convention the other similar regime was Smith’s Rhodesia. The constitution of the crime of apartheid as a crime against humanity follows a long period in which the international community had opposed South African racist policies. It does need to be stressed, however, that despite over 100 ratifications, the Convention has never been used as the basis of the prosecution on any individuals or groups. (66)
The Bantustan policy was discussed by the General Assembly in 1976 when the South African government purported to recognize the independence of the Transkei, the United Nations declared it:
1. Strongly condemns the establishment of bantustans as designed to consolidate the inhuman policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights;
2. Rejects the declaration of ‘independence’ of the Transkei and declares it invalid;
3. Calls upon all Governments to deny any form of recognition to the so-called independent Transkei and to refrain from having any dealings with the so-called independent Transkei or other bantustans;
4. Requests all States to take effective measures to prohibit all individuals, corporations and other institutions under their jurisdiction from having any dealings with the so-called independent Transkei or other bantustans. (67)
This clear position was based on the rejection of the argument of the South African government that their policies were the application of the principle of self-determination. The Bantustan policy had been introduced into an attempt to foster a divide and rule environment through an attempt to sub-divide the African population into separate groups based on language and ethnicity. Far from being the free choice of the people concerned it was imposed upon them by government diktat. The principle of self-determination is described as the “right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”. (68) The Bantustan policy was the opposite of this.
The pattern of the international legal community’s response is thus quite far reaching. Apartheid is not just a policy of a government that the international community disapproved of but is regarded as illegal in itself and seen as denying South Africans the right to self-determination. The regularity in which these norms are re-affirmed by the General Assembly and the Security Council indicates, that this is not an episodic or accidental view but one which is considered and constant. The Security Council formulated this forthrightly in its resolution 473 (1980) where it summed up the position that the Council:
3. Reaffirms that the policy of apartheid is a crime against the conscience and dignity of mankind and is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security;
4. Recognises the legitimacy of the struggle of the South African people for the elimination of apartheid and for the establishment of a democratic society in which all the people of South Africa as a whole, irrespective of race, colour, or creed, will enjoy equal and full political and other rights and participate freely in the determination of their destiny.
Israel and the Palestinian Occupied Territories
Many accounts of the comparison between Zionism and apartheid are long on rhetoric and short on detail. (69) This is especially the case with some legal discussions where injustices are often presented in an ahistorical manner and international law reduced to platitudes. In many of these accounts statements by politicians and academics far outweigh the references to legal or official texts. In this short review of this much debated issue I have attempted to demonstrate through an engagement with the legal sources that there are profound differences in the legal approaches to the Palestinian-Israeli conflict and apartheid South Africa. As I indicated in the opening paragraphs international law’s intimate connection with colonialism permeates its doctrines.
However, this also creates many contradictions. The right of self-determination of peoples is such an example. In the way in which the international legal community has applied the doctrine to the Palestinian-Israeli conflict Palestinian rights have become to a high degree intertwined with Israel’s legitimacy. The territorial areas to the east of the Green Line are seen as occupied and being colonized by Israel. Israel has no rights to these territories and as a state of the international community it can be held to account for its breaches of international law. (70)
The International Court of Justice can only hold Israel in breach of international law because it is a sovereign state and thus necessarily endowed with legal personality. Its presence and activity in the occupied territory is illegal whereas its presence and activity within Israel is lawful. This binary distinction is, ironically, at the center a major legal victory for the Palestinian cause. However, it comes to the cost of some versions of the Palestinian national narrative. (71) It does confirm the political and legal trajectory of the PLO since the Algiers’ Declaration of 1988, (72) the decision to sign the Oslo Agreements and support the roadmap.
However, this movement toward an accommodation with Israel has not been unaccompanied by a systematic shift in the Palestinian narrative of international law. The position expressed in the Algiers Declaration is symbolic of this. In referring to the General Assembly partition resolution is says:
despite the historical injustice done to the Palestinian Arab people in its displacement and in being deprived of the right to self-determination following the adoption of General Assembly resolution 181 (II) of 1947, which partitioned Palestine into an Arab and a Jewish State, the resolution nevertheless continues to attach conditions to international legitimacy that guarantee the Palestinian Arab people the right to sovereignty and national independence. (73)
In this narrative the partition resolution is both historically unjust and “attaches conditions of international legitimacy” to the Palestinians. It is difficult to see how both these positions can be maintained at the same time – or at least how, in the context of the resolution, what can be legitimate for the Palestinians is not equally legitimate for the Jews. (74) At the time, the 1988 Declaration, represented a major shift in political perspective and legal doctrine.
The Cold War was drawing to a close and the then Soviet Union was in the process of re-evaluating its attitude towards international law. (75) The move from the ideological division within international law (76) toward common values between the political blocs had significant implications for the, then Third World, including national liberation movements. Imperialism as a legal doctrinal category was removed from the lexicon. This meant that binary approaches to international legal narratives that had been characterized by constructing just norms within the anti-Imperialist camp and unjust ones in the Imperialist one were no longer tenable.
As a result previous accounts of legal issues that were drawn from this methodology also became problematic. With the evaporation of the Soviet Union and the Eastern European political systems so, these approaches to international law became even more anachronistic. The Palestinian-Israeli conflict has to some extent, however, been dogged by this experience. Nor is it only the Palestinian international legal narrative that has been constructed by it. Israel too has, in its dominant account of its legal basis has been as defensive. The Israeli government’s rejection of the opinion of the International Court of Justice has been illustrative of this approach. (77) The result has been the extremely grudging in the acceptance of any legitimacy accorded by both Israel and Palestine to each other. The legal discourse offers a secure framework for both recognizing the mutual legitimacy of both.
Conclusion
Ehud Olmert, the Israeli Prime Minister has offered the Palestinians six months to offer a proposal for solving the conflict and if none is forthcoming his government will unilaterally fix Israel’s permanent borders. Although there are no maps as yet, Olmert’s many speeches on the subject indicate that the route of wall is set to become the boundary, and so incorporating the main settlements and all of Jerusalem within Israel. In addition he refers frequently to the importance of maintaining a presence in the Jordan Valley. This a version of the “Allon Plan” drawn up by Yigal Allon after the 1967 war – there is one major difference the Palestinians can have Gaza as well. Palestinian President Abbas has spent a great deal of time attempting coax the Hamas-led government to accept a two state solution. In Hamas there is real debate on this issue and the paper produced by Fatah and Hamas prisoners in Israeli jails suggests that the idea is making progress. (78) Olmert’s plans are set against the background of former Israeli Prime Minister Ariel Sharon’s disengagement policy first executed in Gaza in August 2005. (79)
The removal of some Israeli settlements while annexing others has the intention of creating a small weak Palestinian state. While this result would be entirely unjust and unviable the discourse of removing settlements and creating a Palestinian state has transformed Israeli politics. We can observe that both societies are experiencing parallel processes of discussing national identity, borders and statehood. This discussion is taking place across all political trends which means that the Israeli right and the Islamic movement are thinking what was until recently unthinkable. This is not to say that there is an inevitability about a viable solution. It would be absurd not to take into account the difficulties. The unilateral instincts of Omert to impose a colonial-style “solution” on the Palestinians and anti-Semitic Hamas Charter cannot be ignored. (80) However, we cannot reduce these features to the sole characteristic of the Israeli right of the Islamic movement. They contain many political elements at the same time. It is important to grasp the possibilities that the debate offers.
The resurfacing of the apartheid analogy particularly cuts against this process as its purpose is to suggest that Israel like the apartheid regime should not exist. (81) It feeds the idea that negotiation with Israel is unnecessary as one day it will cease to exist. The notion that one side of a conflict ought not to exist or eventually will not inevitably prolongs conflicts. In the case of Palestine and Israel these existential questions have probed disastrous to the Palestinians. Non-recognition of Israel has resulted not in Israel’s disappearance but in a vanishing Palestine.
Essentialist arguments that construct Zionism as only colonialist and expansionist have a paralyzing impact on the effort needed in both scholarship and politics to change the current situation. (82) Suggestions, that the apartheid analogy can arm Palestinians with strong legal positions to their advantage are erroneous for two reasons. First as has been demonstrated the analogy has no resonance in the international law. Second it is based on an incorrect assumption that the South African liberation was able to use the doctrinal illegality of apartheid in a legal setting. This was not the case. Indeed with the end of apartheid far from pursuing this legal route the ANC was vigorous supporter of the peace and reconciliation process. (83) What the legal issue did offer the ANC in the struggle against the regime was a great deal of legitimacy both in motivating its own base and in building broad international support. This is perhaps the lesson for the Palestinian cause. The issue is then to address the most effective way to utilize the international legal characterization of occupied Palestinian Territory.
A Palestinian state in the West Bank, Gaza and East Jerusalem on the basis of Security Council 242 is still an attainable goal. Just because Israel has built settlements, the road system and the wall does not mean that these are either permanent or permanently assigned to Israeli control. Any plans that the present Israeli government have for further annexations need to be opposed through building on the arguments advanced at the International Court, rather than challenging them. Israeli’s legitimacy is bound up with Palestine’s right to exist. Israel’s colonial occupation is not the result of the creation of an apartheid regime or the logical result of Zionism any more than colonial Algeria was an essential result of French nationalism. Colonial regimes came to an end without the destruction of the states that created them. It is time Israel colonial adventure ended and the Palestinians can live their live free from occupation and interference in a sovereign state. It is also time to dump the politics of the cold war and along with it the wholly inaccurate analogy of Zionism with apartheid which was mobilized for Soviet Foreign policy interests and not in the interests of the Middle East.
John Strawson is Reader in Law at the University of East London where he teaches International law and Middle East Studies. He writes on law and postcolonialism with special references to Islam, the Middle East and International Law. His publications include, Editor, Law after Ground Zero (GlassHouse Press, 2002)
Notes
(1) This article is based on a paper which was delivered at a workshop entitled Legal Analysis of the Applicability of the Apartheid Analogy to Israel and the Occupied Territories, organized by Avocats Sans Frontieres, Al-Ram, December 15-16, 2005.
(2) Reader in Law, University of East London, john.strawson@virgin.net
(3) International Court of Justice, July 9 2004, General List 131, see here. (last visited October 10 2005).
(4) Chris McGreal, ‘World’s Apart’ and ‘Israel’s secret pact with Pretoria,’ The Guardian, February 6 and 7 2006..
(5) Statute of the International Court of Justice Article 38 (A).
(6) See: Stefan Talmon, The Security Council as a World Legislature, American Journal of International Law, Vol. 99, No. 1 (2005), 175-193.
(7) See: Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994).
(8) See for example: Antony Anghie, Francisco de Vitoria and the Colonial Origins on International Law in Eve Darian-Smith and Peter Fitzpatrick (eds.) Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999), 89-107.
(9) See: Higgins (1994), and also: Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995); Joshua Castellino, International Law and Self-Determination (Then Hague: Martinus Nijhoff, 2000).
(10) See: Western Sahara Case, 1975, here (last visited October 23 2005).
(11) Works which attempt to make this comparison in are for example: Uri Davis, Apartheid Israel: Possibilities for the Struggle Within (London: Zed Press, 2003); Marwan Bishara, Palestine/Israel: Peace or Apartheid – Occupation, Terrorism and the Future (London: Zed Press, 2003); Roane Carey (ed.) The New Intifada: Resisting Israel’s Apartheid (London: Verso, 2001) and, Uri Davis, Israel: An Apartheid State (London: Zed Press, 1987).
(12) See for example: Zionism: Instrument of Imperial Reaction: Soviet Opinion on Events in the Middle East and the Adventures of International Zionism (Moscow: Novosti Press Agency Publishing House, 1970). The tenor of this compilation can be sensed by statements such as, “In many ways the racist ideas of the Zionist resemble the racial “theory” of the Nazis.” (page 88). This discourse continues into the 1980’s. In a publication of the “Anti-Zionist Committee of Soviet Public Opinion,” Zionism Words and Deeds (Moscow 1987), the then General-Secretary of the Communist Party of the Soviet Union, Mikhail Gorbachev, is quoted as saying in 1986, “I believe that there is no place in civilized society for anti-Semitism, Zionism or any other manifestation of chauvinism. The problem of eradicating these evils on a global stage is an urgent one.” (page 5).
(13) Andrei Gromyko quoted in Martin Gilbert, Israel: A History (London: Black Swan, 1998), 150.
(14) Avi Shlaim, The Iron Wall: Israel and Arab World (London: Penguin, 2000), 35.
(15) See: Laurence Davidson, America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood (Gainesville: University of Florida Press, 2001), 48; see also: David Fromkin, A Peace to End All Peace: Creating the Modern Middle East 1914-1922 (London: Andrew Deutsch, 1989), 515-516.
(16) This period produced a great many books purporting to be an academic discussion of the issues, one, A. W. Kayyali (ed.) Zionism, Imperialism and Racism (London: Croom Helm, 1979) included a chapter by Fayez Sayegh, (A form Racism and Racial discrimination, 51-55) which amongst other claims argues, “This century has witnessed three perfect racisms: Aryan or Nazi Racism, Zionism Racism and Apartheid Racism” (page 53). A theme of this 1970’s genre is that Jewish History and Judaism are the foundations of this racism, writing in Ibrahim Abi-Lughod and Baha Abu-Laban (eds) Settler Regimes in Africa and the Arab World (Wilmette Il: The Medina University Press, 1974), Hassan Haddad, (The Biblical Bases of Zionist Colonization , 2-19) writes, “The Bible (the Old Testament) [sic]….This collection of myths, legends, historical narratives, poems, and prophetic and apocalyptic pronouncements is primarily responsible for the beliefs, conditions, and attitudes that produced Zionism and eventually led to the occupation and transformation of Palestine. We can summarize the beliefs as follows. (1) The Jews are separate and exclusive people chosen by God to fulfill a destiny; the Jews of the twentieth century have inherited the covenant of divine election and historical destiny from the Hebrew (4) tribes that existed more than three thousand years ago. (2) This covenant includes definite ownership of the Land of Canaan (Palestine) as a patrimony of the ancient Israelites to be passed on to the descendents for ever: no other people can rightfully claim that land. (3) The occupation and settlement of this land is the fulfillment of the duty collectively placed on Jews, to establish a state for the Jews; the purity of the Jewishness of the land is derived from a divine command and is thus a sacred mission” (Pages 3-4).
(17) See: Paul J.I.M. de Waart, Dynamics of Self-Determination: Protection of Peoples as a Human Right (Leiden, New York, Koln: E.J. Brill, 1994), 222-224.
(18) Jewish Agency statistics see: Ilana Shamir and Shlomo Shavit (eds.) Encyclopaedia of Jewish History (New York and Oxford: Facts on File Publications, 1986),148.
(19) Baruch Kimmerling, Zionism and Territory: The Socio-Territorial Dimensions of Zionist Politics (Berkeley: Institute of International Studies, University of California, 1983), 11.
(20) The first figure comes from Sami Hadawi who was a senior official in the British Mandate and latter is from the statistics of the United Nations Special Commission for Palestine. According to Hadawi, Jews owned 2% of the land before the British conquest in 1917. This means that level of Jewish ownership that can be attributed to the British Mandate period is between 3.7 and 5% of the total area, see: Michael R Fischbach, Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Conflict (New York: Columbia University Press, 2003) and Hanna Nakkara unpublished manuscript.
(21) See: Robert G. Weisbord, African Zion: The Attempt to establish a Jewish Colony in the East Africa Protectorate 1903-1905. (Philadelphia: The Jewish Publication of America, 5728-1968).
(22) See: Denis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Straus and Giroux, 2004
(23) See: Yossi Beilin, The Path to Geneva: The Quest for a Permanent Agreement 1996-2004 (New York: RDV Books, 2004), 278-279.
(24) See: Raja Shedadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories (London, The Hague, Boston: Kluwer Law International, 1997)
(25) This does create in Israel as in other states major contradictions in law and politics over the place of minorities see for example: Nadim Rouhana and As’ad Ghanem, The Crisis of Minorities in Ethnic States: The Case of Palestinian Citizens in Israel, International Journal of Middle East Studies, Vol. 30, No. 3 (1998), 321-346.
(26) See for example: Homi K Bhabha (ed.) Nation and Narration (London: Routledge, 1990); Benedict Anderson. Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1991) and Anthony D Smith, Chosen Peoples: Sacred Sources of National Identity (Oxford: Oxford University Press, 2003).
(27) See for example: Nur Masalha, The Politics of Denial: Israel and Palestinian Refugee Problem (London: Pluto Press, 2003)
(28) See for example: Virginia Tilley, The One State Solution: A Breakthrough for peace in the Israeli-Palestinian dreadlock (Manchester: Manchester University Press, 2005)
(29) Edward W Said, The End of the Peace Process: Oslo and After (2000), 271.
(30) Edward W Said, From Oslo to Iraq and the Roadmap (London: Bloomsbury, 2004) 186-187. The essay was originally published in June 2002.
(31) See for example: Hussein Abu Hussein and Fiona Mckay, Access Denied: Palestinian Land Rights in Israel (London and New York: Zed Press, 2003)
(32) For a scholarly discussion on the case see: Lori Fisler Damrosch and Bernard H Oxman (eds.) Agora: The ICJ Advisory Opinion on the Construction of a Wall in Occupied Palestinian Territory, American Journal of International Law, Vol. 99, No. 1 (2005), 1-141; see also: Israel Law Review, Vol. 38. Nos. 1-2 (2005) “Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier.” See also: Iain Scobbie. Unchart(er)ed Waters: Consequences of the Advisory Opinion of the Legal Consequences of the construction of a Wall in Palestine Occupied Territory, European Journal of International Law, Vol. 17, no. 5 (2005), 941-962.
(33) See: Leonard Stein, The Balfour Declaration (Jerusalem and London: Magnes Press, The Hebrew University and The Jewish Chronicle Publications, 1961, reprint 1983), 664.
(34) See for example: W.F. Boustany, Palestine Mandate: Invalid and Impracticable (Beirut: American Press, 1936).
(35) See for example: Henry Cattan, Palestine and International Law: Legal Aspects of the Arab-Israeli Conflict (London and New York: Longman, 1976).
(36) See for example: John Quigley, The Case for Palestine: An International Legal Perspective (Durham and London: Duke University Press, 2005). See also: W. Thomas Mallison and Sally V Mallison, The National Rights of the People of Palestine, Journal of Palestine Studies, Vol. IX, No.4 (1980), 119-130. In this article Mallison and Mallison argue that there is no legal conception of the Jewish People and suggest that the UN Partition plan (see below) is illegal so far as it affects Jews but legal in regard to the Palestinians. This highly contradictory argument is common in this genre. A further example is: Francis A Boyle, Palestine, Palestinians and International Law (Atlanta: Clarity Press, 2003).
(37) See: De Waart (1994), 112 – 143.
(38) Al-Ahram, September 21 1947, as quoted in: Jewish Agency for Palestine, Memorandum on Acts of Arab Aggression to alter by force the settlement of the future government of Palestine approved by the General Assembly of the United Nations, submitted to the United Nations Palestine Commission by the Jewish Agency for Palestine (Lake Success, New York, February 2 1948), page 3.
(39) Ahkbar al-Yom, October 11 1947, quoted in ibid.
(40) See: Cattan (1976)
(41) December 11 , 1947 quoted in: Jewish Agency for Palestine, Before the Security Council of the United Nations, Statements submitted by Moshe Shertok, Head of the Political Department and Dr Abba Hillel Silver, Chairman of the American Section, February 27 1948. Not all Palestinian lawyers disagree with this approach see: Musa W. Mazzawi, Palestine and the Law: Guidelines for the Resolution of the Arab-Israeli Conflict (Reading: Ithaca Press, 1997).
(42) See generally: Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994).
(43) Cattan, (1976), 75.
(44) See: Case Concerning the interpretation and application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahuriya v United Kingdom, General List 86 (1992) here (last visited December 9 2005).
(45) See: Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (Cambridge: Cambridge University Press, 1987).
(46) Paragraph 72.
(47) See: Avi Shlaim, The Iron Wall: Israel and the Arab World (London: Penguin, 2000), 29-53.
(48) This position was confirmed by the Security Council in resolution 338 (1973) after the October Israeli-Egyptian/Syrian war of that year.
(49) A Performance-based Roadmap to Permanent Two-State Solution to the Israeli-Palestinian Conflict, here (last visited, December 10 2005). The UN Security Council endorsed the roadmap in resolution 1515 (2003).
(50) For a discussion of the Oslo Agreements in a legal context see: Geoffrey R Wilson, The Oslo Agreements: International Law and Israeli-Palestinian Peace Agreements (Oxford: Oxford University Press, 2000).
(51) Paragraph 118.
(52) Paragraph 122,
(53) Paragraph 162.
(54) South-West Africa Cases (Ethiopia v South Africa, Liberia v South Africa), 1966 (last visited October 23 2005).
(55) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), June 1971 (last visited October 23 2005).
(56) See generally: Graham Leach, The Afrikaners: Their Last Great Trek (Johannesburg: Southern Books, 1990).
(57) See: Nigel Worder (ed.), The Making of Modern South Africa: Conquest, Segregation and Apartheid (Oxford: Blackwell, 1995).
(58) This is frequently referred t as the Uganda plan, although in fact the area that Chamberlain offered was in Kenya.
(59) See for example: Richard P Stevens, Weizmann and Smuts: A Study of Zionist-South African Cooperation (Beirut: Institute of Palestine Studies, 1975). The argument here is that as Jan Smuts, a former Boer general and then political leader and Prime Minister of South Africa was not only a Zionist but one of the architects of the Mandate system, this demonstrates the deep connection between apartheid and Zionism. As he was racist, the account goes, this demonstrates that the racist nature of Zionism. The dubious logic is also compounded by the fact that apartheid was only introduced after Smuts and his United Party were defeated by the National Party on May 27 1948.
(60) Richard P Stevens, The Settler-Colonial Phenomenon in Africa and the Middle East: The Passing of an Era? (Khartoum: University of Khartoum, n/d), 9-10.
(61) Ibid, 28.
(62) See: Brian Bunting, The Rise of the South African Reich (Harmmondswoth: Penguin, 1964).
(63) See generally: ibid.
(64) See: Boutros Boutros-Ghali, The United Nations and Apartheid (New York: United Nations, 1994) and Louis B Sohn, Rights in Conflict: The United Nations and South Africa (Ardsley: Transnational Publishers, 1994)
(65) See here(last visited December 10 2005).
(66) Although within South Africa attempts were made to use the law to oppose apartheid where possible, see: Richard Able, Politics by Other Means: Law and the Struggle against Apartheid (London: Routledge, 1995).
(67) UN General Assembly resolution 31/6 A, 1976.
(68) UN General Assembly resolution 2625 (XXV), 1970.
(69) See for example: Nafeez Mosaddeq Ahmed, “Apartheid in the Holy Land: Racism in the Zionist State of Israel,” a paper prepared for the United Nations Conference against Racism, Racial Discrimination, and Xenophobia and Related Intolerance, August 7, 2001 (last visited December 10 2005).
(70) See generally:: Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (New York: Times Books, 2006).
(71) See for example: Nur Masalha, Imperial Israel and the Palestinians (London: Pluto Press, 2000).
(72) Adopted November 15, 1988, see: Paul J.I.M. de Waart, Dynamics of Self-Determination in Palestine: Protection of Peoples as a Human Right (Leiden, New York, Koln: E.J. Brill, 1994), 225-230, and see also: Francis A Boyle, The Creation of a Palestinian State, European Journal of International Law, Vol. 1 Nos. 1-2 (1990), 301-306; James Crawford, The Creation of a Palestinian State: Too Much too Soon? European Journal of International Law, Vol. 1 Nos. 1-2 (1990), 307-313.
(73) De Waart (1994), 227.
(74) See for example: Walid Khalidi, Revisiting the UN Partition Resolution, Journal of Palestinian Studies, Vol. XXVII, No, 1 (1997), 5-21.These views are reliant on Cattan, however, one response to Cattan (Nathan Feinberg, On An Arab Jurist’s Approach to Zionism and the State of Israel (Jerusalem: Magnes Press, 1971) makes exactly the same point although the other way around. In this account the Jew’s gain legitimacy and Palestinians do not. For a similar view from an Israeli standpoint see: Yoram Dinstein, “The United Nations and the Arab-Israeli Conflict” in John Norton Moore (ed.) The Arab-Israeli Conflict (Princeton: Princeton University Press, 1977), 556-594.
(75) See: Mikhail Gorbachev, Address to the United Nations General Assembly (Moscow: Novesti Press, 1988). In this speech the Soviet President called for an end to ideology in international law and for “an accord within the framework of the United Nations of a uniform understanding of the principles and norms of international law.”
(76) See for example: G.I. Tunkin, Theory of International Law, translated by William E Butler (London: George Allen & Unwin, 1974)
(77) Unofficial Summary of State of Israel’s Response Regarding the Security Fence (last visited December 10 2005).
(78) Steven Erlanger, From Jail, Palestinians offer plan for their state, International Herald Tribune, May 12 2006 and Arnon Regular, Hamas’s Haniyah: Plan implicitly accepting Israel is important (May 13 2006). Then document has been drafted by Marwan Barghouti of Fahah and Sheikh Abdel Halek Natshe of Hamas and it appears that representatives of other Palestinian groups have also been involved. The 18 clause text calling for the formation of a Palestinian state in the Occupied Territories is intended to the basis of a national dialogue. It envisages the formation of a national unity government between Hamas and Fatah.
(79) See: Israel Ministry of Foreign Affairs, Israel’s Disengagement Plan: Renewing the Peace Process, April 20, 2005 (last visited December 10 2005)
(80) See in particular article 22 of the Covenant of the Islamic Resistance Movement (Hamas), 1988.
(81) This is clearly expressed in the proposal of resolution 198C at the 2006 NATHFE conference, see: Jon Pike, Chuck out 198C (last visited May 13 2006).
(82) See for example: John Rose, The Myths of Zionism (London and Ann Arbor: Pluto Press, 2004), and for an account of personal nature see also: Susan Nathan, The Other Side of Israel (London: HarperCollins, 2005).
(83) See: Richard A Wilson, The Politics of Truth and Reconciliation: Legitimizing the Post-Apartheid State (Cambridge: Cambridge University Press, 2001).
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