Graffiti and murals decorating the Israel's separation wall (MaanImages/Jaclynn Ashly)
Al-Shabaka is an independent non-profit organization whose mission is to educate and foster public debate on Palestinian human rights and self-determination within the framework of international law. Part I of this commentary was published by Ma'an on Saturday, in which Nadia Hijab and Ingrid Jaradat Gassner compare different frameworks of analysis, highlighting the merits of the settler colonial framework in particular. Below, the authors conclude the anti-apartheid framework is, however, most strategic in furthering Palestinian goals in the absence of a near-term political settlement.
There are serious problems relating to the settler colonial framework that should preclude it from being the Palestinians’ overarching framework of analysis. For one, the state system considers colonialism to be an issue of the past, and the UN treats decolonization as largely accomplished. More importantly, international law itself also limits the strategic value of this analytical frame. There is no criminal responsibility because colonialism has not been criminalized.
Moreover, the prohibition of colonialism and the above legal obligations of all states and the UN are applicable only to Israel’s settler colonial enterprise in the occupied Palestinian territory (OPT). Experts at an international law conference held at Birzeit University in 2013 clarified this fact: Colonialism was not expressly prohibited by international law at the time Israel was established. The normative shift began only in the 1950s as result of anti-colonial liberation movements, and colonialism became expressly prohibited in 1960, when the UN adopted the Declaration on Granting Independence to Colonial Countries and Peoples.
Earlier settler colonial movements, including the Zionist movement, that had by then established themselves as nation states were thus de facto immunized and normalized by UN-led decolonization. The dominant legal opinion is that colonialism is not legally applicable within the borders of existing states.
Thus, for Palestinians who continue to struggle against Israeli settler colonialism in the 21st century, this anti-colonial framework is problematic: It risks creating contradictions between the core rights and goals we seek to achieve, and of promoting political solutions that deny the full set of these rights to many Palestinians.
The international legal and political consensus is that the right of Palestinians to liberate territory and establish a sovereign state is restricted to the OPT. The framework cannot incorporate the right of the refugees to return to homes and property in Israel or the right to nondiscrimination and equality of Palestinian citizens there. Moreover, for Palestinians and their allies in the movement for Palestinian rights, the anti-colonial approach has, because of its focus on two states and the 1967 borders, proven in practice to be divisive and to sideline the right of return of the refugees and the right to equality of Palestinian citizens of Israel. This is one of the lessons learned in particular since the 1990s from peace diplomacy based on the Oslo Accords.
By contrast, none of the above problems arise with the anti-apartheid framework. It should be noted that apartheid is not defined by similarities with the former racist regime in South Africa. Rather, it has a universal legal definition dating back to the Anti-Apartheid Convention of 1973 and updated in the Rome Statute of the ICC (2002) as “inhumane acts…committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” Inhumane acts of apartheid include forcible transfer of population, persecution, murder, imprisonment, and other severe deprivation of physical liberty and fundamental human rights.
We argue that the most strategic framework of analysis that should be applied to the Palestinian condition is the anti-apartheid framework. In the first place, it incorporates and builds on the analysis of settler colonialism: In the case of Palestine, apartheid began when the Zionist settler colonial society transformed into the state of Israel and incorporated its ideology of Jewish superiority and policy of ethnic cleansing into the laws and institutions of the state.
Contemporary Israeli apartheid is thus best defined as the institutionalized regime of racial discrimination whereby Israel, as state and occupying power, systematically privileges Jews and oppresses, fragments, and dominates the entire Palestinian people and colonizes the OPT, with the intent of maintaining and consolidating this regime in all of pre-1948 Palestine. Population transfer and ethnic cleansing of Palestinians, including denial of return, is an inhumane act of oppression and a pillar of Israeli apartheid.
Secondly, while it builds on the settler colonial analysis, the apartheid framework goes further, drawing on international law as a strategic asset. As a severe form of racial discrimination, apartheid has been prohibited and treated as a serious violation under customary law at least since the end of World War II. It is also criminalized by the Anti-Apartheid Convention and the Rome Statute of the ICC, constituting what is probably the second most serious crime against humanity after genocide.
For these reasons, the framework is applicable at least back to 1948 when Israeli apartheid formally began with the establishment of the state, and to all of former British Mandate Palestine since 1967. In the OPT the apartheid framework applies in addition to the international humanitarian law (IHL). As an apartheid regime, Israel bears legal responsibility for inhuman acts of apartheid against all Palestinians, including refugees, citizens of Israel, and those under occupation.
The state of Israel is responsible for restoring their rights through reparations, while individual criminal responsibility applies to those who carry out, aid, or abet the crime of apartheid. The responsibility of all other states and the UN is to ensure that those who are guilty are brought to justice. Neither states nor the UN must give recognition, aid, or assistance to Israeli apartheid, and all have a legal obligation to cooperate and adopt measures, including sanctions, to bring it to an end and ensure reparations.
Thirdly, apartheid is a framework that mobilizes solidarity and support among people worldwide. Due to the legacy of the international campaign that brought down apartheid in South Africa, many people also know that apartheid regimes are to be boycotted and isolated. It is also a framework that has already become popularized as part of the Palestinian struggle because of such events as Israeli Apartheid Week, which since 2005 has been held every spring in a growing number of cities around the globe. Moreover, there is increasing international support of the apartheid analysis. Since 2006 at least, independent legal scholars and UN human rights experts have held Israel responsible for apartheid against Palestinians and called for international measures, including sanctions. The recent report by the Economic and Social Commission for Western Asia (ESCWA), Israeli Practices towards the Palestinian People and the Question of Apartheid, remains in the public sphere as an authoritative legal study even though the UN secretary general has ordered the report withdrawn, leading to the resignation of its Executive Secretary Rima Khalaf, whose powerful resignation letter is also being widely circulated.
Indeed, the coalition of Palestinian human rights organizations in the OPT -- the Palestinian Human Rights Organizations Councils (PHROC) --sent a letter to the UN secretary general condemning the withdrawal of the ESCWA report and saying it will adopt the apartheid framework as laid out in that report.
Finally, the 2013 international law conference at Birzeit clarified that apartheid does not necessarily end with a “one-state solution” in the entire territory that is controlled by an apartheid system. The post-apartheid system can have a two-state solution. This is illustrated by the example of Namibia, whose people achieved self-determination through independence as a result of their struggle against the South African apartheid regime that had controlled and colonized their country. Based on international law, the solution to apartheid is ending institutionalized racial discrimination in order to allow exercise of the full set of human rights by the oppressed group, including the right to self-determination of oppressed peoples. It does not proscribe a political solution.
Equally importantly, and as the ESCWA report emphasized, there is no basis for the claim that describing the actions of the state of Israel as apartheid would be anti-Semitic. The very preface of the report refutes this claim, noting that findings on Israeli apartheid are based on the same body of international law that also prohibits anti-Semitism.
A Common Frame for Our Goals and Messages
We have sought to set out the way in which the challenges that face the Palestinian people are compounded by confusion over a common framework of analysis and an agreed set of goals. We have pointed out how the common use of the word “goal” to describe the ultimate political settlement muddies the water. Whatever the ultimate political settlement, it should enable the Palestinians to finally be free from colonization, to enjoy equal rights, and to have rights in and to their homeland, including the right of return to their homes and lands and compensation for what has been lost.
We believe that the multiplicity of frameworks of analysis that have been applied -- and indeed are applicable -- to the case of Palestine obscures both our goals and our messages. There is a pressing need for the adoption of a single framework of analysis that is strategic, that would enable us to crystallize our demands around our goals and to communicate these through clear and compelling messages. We argue that the anti-apartheid framework of analysis is the most strategic.
The anti-apartheid framework will enable the Palestinians to craft messages that clearly communicate what has happened to the Palestinian people as well as the goals of the Palestinian struggle. It helps to clarify that this is a struggle for decolonization and reparations, and not merely a struggle for a state. The powerful message must be that the Palestinian struggle is for freedom, justice, and equality in the homeland, whether in a single secular democratic state or in two sovereign states side by side, in which all citizens enjoy all human rights.
Once there is agreement on this framework, existing strategies can be honed and new strategies can be developed. As messages are refined, it is important to avoid the temptation to use other frameworks of analysis beyond the academic sphere. The term apartheid needs to again become common parlance as it was during the time of the South African struggle for freedom. Moreover, an education and awareness-raising campaign is badly needed to build consensus around this framework of analysis as is investment in the knowledge and skills of the Palestinian and solidarity activists working to advance it.
Furthermore, those working to disseminate messages about Palestinian rights through the media should go beyond such rhetoric as “time for one state” or “the two-state solution is dead.” If they truly want to advance Palestinian freedom and rights, then they should focus on the process of decolonization and reparations that must be realized whatever the political settlement. Otherwise there is a risk of doing more harm than good by leapfrogging that process and the heavy lifting that remains to be done. This is not to say that the message must focus only on the horrors on the ground. On the contrary, messages should also be forward looking and focus on a future where all can live freely and enjoy justice and equality.
At this stage of the Palestinian struggle for self-determination, when the ultimate political solution cannot be defined, the concept of apartheid provides a clear analytical framework for a struggle for decolonization and self-determination that can isolate and weaken the oppressive practices of the Israeli state and -- at the same time -- preserve and strengthen the fundamental Palestinian rights that are not negotiable: The right to freedom from occupation and colonization, the right to full equality of Palestinian citizens of Israel, and the right of the refugees to return to their homes and properties.
The views expressed in this article are the authors’ and do not necessarily reflect Ma'an News Agency's editorial policy.