Ambos, Kai

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Apartheid in the Occupied PalestinianTerritory?Kai Ambos 2024-04-03T01:27:07The apartheid claim made against Israel because of its policy in the OccupiedPalestinian Territory (OPT) – most recently in the ongoing advisory proceedingsbefore the International Court of Justice (ICJ) – cannot be settled with the counter-claim of antisemitism, but calls for an objective, thorough and fact-based legalinquiry. Only such an approach with regard to this and other allegations againstIsraeli policy will strengthen Israel, understood as a liberal and democraticRechtsstaat, which guarantees, in line with its 1948 Declaration of Independence,“complete equality” to “all its inhabitants”. At the same time, recent developmentshave once again made clear that a solution to the Palestine question in line withinternational law is simply existential for the future safe existence of the State ofIsrael.Apartheid claim reloadedIn the most recent hearings in the ICJ advisory proceedings on the “Policies andPractices of Israel in the Occupied Palestinian Territory, including East Jerusalem”,20 (out of a total of 50 intervening) States as well as three international organizationshave invoked the apartheid claim (s. here p. 80 with references in fn. 100), includingthe apartheid victims South Africa (here, pp. 18-9) and Namibia (here, pp. 14 ff.)as well as the African Union representing 55 African States (here, p. 47). Even ifthere are no European or “Western” states among these States, it is noteworthythat respected European international lawyers have advocated the apartheid claimon behalf of those States (such as English Professor Philippa Webb for Belize[here, pp. 15-6] and Sir Michael Wood for Jordan [here, p. 63] and – en passant– German Professor Andreas Zimmermann and French Professor Alan Pellet,both for Palestine [see here p. 57 and here p. 97 and passim]). The apartheidclaim has, in the meantime, also found its way into the investigation into possiblecrimes in the “situation of Palestine” before the International Criminal Court (ICC)through a collective referral by five ICC State parties (pursuant to Art. 13(a), 14 ICCStatute), led by South Africa (and supported by Bangladesh, Bolivia and Djibouti andComoros).It should be recalled, however, that this claim is much older than the recent debate,triggered by the 2021 reports of Human Rights Watch, Amnesty International andthe Israeli NGO B’Tselem, seems to suggest. First claims of this kind can alreadybe found in the publications of some Palestinian intellectuals in the 1960s (seeWaxman). In the 1970s, racism and Zionism were given equal status in Resolutionsof the UN General Assembly (see e.g. Res. 3151 G (XXVIII) of December 14,1973). The apartheid claim was then made explicitly for the first time at the WorldConference against Racism in 2001 in Durban, South Africa. A draft final declaration- 1 -mentioned apartheid in relation to “the ethnic cleansing of the Arab population inhistoric Palestine” and described “foreign occupation based on settlements” as “anew kind of apartheid”. Yet, this reference disappeared in the final version of thedeclaration.Unbiased and nuanced analysisIn any case, the apartheid claim has now again taken center stage in theinternational legal discourse with the recent ICJ hearings. Yet, this time, the target isIsrael and the former apartheid victims South Africa and Namibia are among its mainadversaries. At the same time, the apartheid legacy of these two countries providesrelevant legal precedent with four ICJ advisory opinions (1950, 1955, 1956, 1971)and a contentious case (Ethiopia v. South Africa, 1960-1966), all concerning theformer South West Africa, now Namibia, back then controlled by (apartheid) SouthAfrica as mandatory power.In legal terms, apartheid essentially describes a specific wrong that encompassessystemic and structural forms of discrimination destroying equality and freedom,within the framework of an institutionalized system of oppression. The modernconcept of the international crime of apartheid, building on the definition of Art. II ofthe 1973 Apartheid Convention but emancipated from its South African precedent,can be found in Article 7 (2)(h) of the ICC Statute (as a crime against humanity)and is defined there by means of three (cumulative) elements: (i) “inhumane acts”“similar” to those mentioned in Article 7 (1) ICC Statute, i.e., ranging from deprivationof liberty to killings; (ii) existence of an “institutionalized regime of systematicoppression and domination of one racial group by another racial group or groups”and (iii) the (specific) “intent of maintaining” that regime.As outrageous as the apartheid claim may appear from the point of view of the Israeligovernment, it is in Israel’s own best interest to take it seriously. If it were successful,Israel would face – besides genocide1) and war crimes (based on violations of thelaw of armed conflict, ius in bello) – another charge of an international wrongful actand an international crime with similar restraining consequences for third Statessupporting Israel militarily (see generally here; less restrictively here; on Nicaraguav. Germany see here, here and here). Indeed, apart from domestic legislationprohibiting arms exports in the face of the commission of international crimes (onGerman law, see here, at 182 ff.; on Dutch law and the recent Hague AppealsCourt decision, see here, here, here), the UN Arms Trade Treaty (ATT) – albeitoften disregarded by major military powers – would equally apply in an apartheidcontext given the latter’s characterization as a crime against humanity. Accordingly,a State must not supply arms to a conflict party if this party uses them to commitinternational crimes (including apartheid as a crime against humanity) and thesupplying State “has knowledge” of this use “at the time of authorization” of the armssupply (Article 6(3) ATT).  In terms of the law of State responsibility (Article 16 ILCDraft), the supplying State would be complicit “in the commission of an internationalwrongful act” (i.e. apartheid) if it has the respective knowledge of the commissionof this act (for a previous debate on German complicity in war crimes in Yemen- 2 -by supplying weapons to Saudi Arabia see e.g. here and here). In addition, anti-apartheid monitoring mechanisms could be reactivated, especially the ApartheidConvention’s “Group of Three”.However, can we really speak of apartheid in legal terms with a view to Israelipolicies and practices in the OPT, especially the West Bank?2) If one undertakesa thorough and careful analysis, applying the above-mentioned three elements ofthe apartheid crime to the factual situation in the OPT, the answer to this questionturns out to be more complex than the hearings before the ICJ and the widespread(international law) discourse suggest. In fact, only one of the intervening States(namely Belize, pp. 15-6) undertook something close of a legal analysis, but apartfrom too brief and somewhat superficial, it mixed up the specific genocidal with theapartheid intent and ignored the tricky issue of the applicable standard of proof. In anutshell, the main take-aways from a more thorough analysis may be summarized asfollows (for a detailed treatment, see Ambos, Apartheid in Palestine? 2024, pp. 87 ff.and 47 Fordham Int’l L.J., forthcoming 2024):The existence of the first element of the apartheid crime is largely undisputedbecause Israeli occupation policy entails “inhumane acts”, e.g. unlawful killings,arbitrary arrests and violations of physical integrity, including torture, and theseacts – increasingly occurring in the form of settler violence (for a recent Germanradio report see here) – are attributable to the State of Israel. The second elementraises, however, significant problems of interpretation. While the existence of an“institutionalized regime of systematic oppression and domination” in the OPT islargely uncontroversial (see e.g. for a good overview of the discriminatory legislationhere), the oppression / domination of the local Palestinian population by Israel asthe occupying power and by Jewish settlers cannot easily be understood as theoppression of one racial group (Palestinians) by another racial group (Israeli Jews).While Israeli discriminatory policies and practices in the OPT have been qualifiedas “racial discrimination” within the meaning of Article 1 of the 1965 InternationalConvention on the Elimination of All Forms of Racial Discrimination (ICERD) by therespective Committee (here, para. 24 and here, para. 22-3), the requirement of aracial group oppression is arguably narrower since it presupposes that the respectivepopulations are to be understood as “racial groups”, i.e., there must be more thanjust discrimination of one group by the other (note that Article 7(2)(h) ICC Statutedoes not even contain the word ‘discrimination’). Also, the “racial group” elementseems to imply that the Israeli-Palestinian conflict is to be perceived in (purely)racial terms, but what if it is read primarily as a national conflict between Israelicitizens and Palestinian non-citizens (see e.g. here)? While the full controversycannot be recounted here, ultimately, the existence of a national conflict does notexclude a parallel discrimination with racial ingredients (convincingly here, 851-2),i.e., where the oppressed group is considered as inferior to the dominant group.Such racialised or race-based oppression may ultimately amount to a racial groupoppression within the meaning of the apartheid crime. Finally, the third elementof the specific apartheid intent is very difficult to prove, especially if one uses thevery high evidentiary threshold of the “only reasonable inference” (for a discussion,see here) required by both the ICJ (here, para. 148) and the International Criminal- 3 -Tribunal for the Former Yugoslavia (here, para. 10, 2598 ff., 5669, 5781, 5830) withregard to the crime of genocide.Anti-Semitism versus Fact-Based Legal Criticism ofIsraeli PolicyWhatever the result of an impartial examination of the apartheid claim – or, for thatmatter, the genocide claim brought against Israel by South Africa regarding theongoing Gaza war –, it cannot be settled with a counter-claim of antisemitism. Asrecently demonstrated, once again, in the context of an interdisciplinary researchproject, antisemitism is an extremely diverse and complex phenomenon that canhardly be captured by one comprehensive and convincing definition. This explainswhy three definitions of antisemitism – the one of the International HolocaustRemembrance Alliance (IHRA, 2016) and, in response, those of the so-calledJerusalem Declaration and the Nexus Document (both 2021) – are fighting forrecognition, with none of these definitions claiming to be legally or otherwisebinding, but only to serve as a basis for a more informed and rational discussion.In particular, the broad and vague IHRA definition, which was accepted as the onlybinding definition by the German Federal Government already in 2017 and later evenexpanded, has increasingly met with criticism (see here and here, p. 71 ff.) givenits tension with freedom of expression and science. Even Kenneth Stern, one of theauthors of the IHRA definition as former antisemitism commissioner of the “AmericanJewish Committee”, has echoed such criticism (here and recently here).Against this background, one should work with a minimal or core definition,according to which antisemitism represents, in the words of the German IndependentExpert Group on Antisemitism, a “collective term” for “all attitudes and behaviorsthat assume negative characteristics regarding individuals, groups or institutionsperceived as Jews due to their affiliation” (here, p. 24).3) More succinctly, onecan speak of “hostility towards Jews as Jews” (here, p. 122), of discrimination,persecution and other oppression of Jews (only) because they are Jews.At any rate, given the definitional uncertainty and the tension with freedom ofexpression, the antisemitism claim should not be made lightly. Rather, one mustdistinguish between antisemitism and legitimate criticism of Israeli governmentpolicy – in the sense of a human rights or international law-based criticism ofIsrael (for further distinctions, see here, pp. 293, 298 ff. ). If this criticism is fact-based, in particular focusing on the Israeli policies and practices in the OPT, theIsraeli-Palestinian “real conflict” (here, p. 86), it is, prima facie,4) not antisemiticand thus deserves an unbiased and rational discussion. In contrast, a too broadconcept of Israel-related antisemitism runs the risk of ignoring the underlyingfactors of the existing real conflict (here, p. 108)  and, ultimately, encourages theinstrumentalization of the antisemitism claim.- 4 -Taking Fact-Based Criticism Seriously in Orderto Preserve Israel as a Democratic and LiberalRechtsstaatWhat is even more important is that only an unbiased and factual analysis ofallegations against Israel and its policies will contribute to preserving, in the mediumand long term, Israel as a liberal and democratic Rechtsstaat. While such ananalysis may lead to criticism of Israeli policies (both within Israel and with regardto the OPT), it does not challenge its right of existence and is certainly not aboutcriticism of Jews as Jews. Thus, such criticism is not only non-antisemitic, but it is,in fact, pro-Israel, because it defends Israel understood both as a liberal Rechtsstaatand as the home of the Jews. Indeed, for the preservation of this State, a solutionto the Palestine question in line with international law is absolutely essential. BrianKlug already pointed this out in 2003 (p. 138): “The longer Israel persists in itscurrent policies towards the Palestinians, the more it will be excoriated, not only byanti-Semites but by people of goodwill. Almost no one will take Israel’s part exceptmainstream Jews.”The most recent proceedings before the ICJ make it clear how right Klug was evenback then. Today, Israel appears increasingly isolated on a global scale, a countrycaptured by “radical messianic” Jewish groups, with a more than 50 years lastingoccupation of Palestine aggravated by the ever-expanding settlement project andthe current Gaza war. Thus, the true friends of Israel prove more and more to bethose who recall its Declaration of Independence of 1948, which spoke of “completeequality” of “all its inhabitants irrespective of religion, race or sex”, of “freedomof religion, conscience, language, education and culture” and made a “faithful”commitment to “the principles of the Charter of the United Nations”. In short, thoseJewish voices who, like the Israeli legal scholars Ofra Bloch and Barak Medina(here, p. 308), advocate complete equality and fight for the preservation of a “Jewishand democratic state” deserve our unconditional support. While this call primarilyapplies to mainland Israel, it goes hand in hand with a just and equal solution of thePalestine question, that is a solution in line with international law on the basis of the1947 UN partition plan (General Assembly Resolution 181) as further developed insubsequent negotiations affirming the 1967 borders  (Security Council Resolutions242/1967, 338/1973 and more recently, e.g. 2334/2016, para. 3).5) I am grateful for discussions with and comments by various colleagues from Israeland elsewhere. References• See regarding genocide also the most recent report of the Special Rapporteurfor the OPT of 25 March 2024 and the last order of the ICJ of 28 March 2024stressing, with a view to the plausible genocide claim, the “further risk ofirreparable prejudice” and the “urgency … that such prejudice will be caused- 5 -before” a “final decision in the case” (para. 40). Explicit references to the riskof genocide can also be found in the Declarations of President Salam (para.7, 9-10, 12), Judge Yusuf (especially para. 3 [finding “objective indicia” ofgenocide], 7 [“indicia of genocidal activity”], 12 [“indicators of genocidal activities… flashing red in Gaza”], Judge Nolte (para. 6 [“plausible risk of a violation ofrelevant rights under the Genocide Convention”]) and Joint Declaration JudgesXue, Nemer Caldeira Brant, Gómez Robledo and Tladi (para. 6); but see alsoSeparate Opinion (Israeli) Judge ad hoc Barak (para. 6 [“The Court’s reasoningtoday is far removed from the Genocide Convention and based primarily onhumanitarian considerations.”], 32 [“no indication of an intent”]).• I note in passing that the apartheid claim is unjustified with regard to mainlandIsrael although the latter’s legal regime is partly applied in the OPT and it entailsis a discrimination of Israeli Arabs. At any rate, one should distinguish betweenthe OPT and mainland Israel and Amnesty International’s failure to do so hasbeen rightly criticized. In addition, to extend the apartheid claim to Israel propermay be considered as an attack on Israel’s right to existence.• The original German version of the quote of the unabhängiger ExpertenkreisAntisemitismus reads: “Sammelbezeichnung für alle Einstellungen undVerhaltensweisen, die den als Juden wahrgenommenen Einzelpersonen,Gruppen oder Institutionen aufgrund dieser Zugehörigkeit negativeEigenschaften unterstellen.“ (translation K.A.).• This, of course, does not exclude underlying antisemitic motives of fact- or law-based Israel criticism but such motives are difficult to identify since they belongto the internal sphere of the actor. In addition, even if they existed, the factual orlegal basis of the criticism must still be addressed.• To be sure, the 1947 partition plan has been changed to the detriment of thePalestinians by the armistice (green) line resulting from the 1948 and 1967wars, see for a comparative map here https://de.wikipedia.org/wiki/Datei:1947-UN-Partition-Plan-1949-Armistice-Comparison.svg.  While this expansion ofIsraeli territory has, arguably, become effective with the above quoted SecurityCouncil Resolutions and has ultimately also been recognized by the PLO in theOslo Accords, it certainly goes too far to extend Israel’s legal claim to the WestBank and Jerusalem as a whole arguing (here) that with the end of Ottoman(Turkish) sovereignty (Treaty of Lausanne, Article 16) and the establishmentof the UK mandate over Palestine there was a kind of “sovereign-less” territorywhich could then be claimed (as a whole) by the newly created State of Israelin 1948. In fact, Palestine was a Mandate A territory under the Covenant ofthe League of Nations and as such “provisionally recognized” as “independentnation” (Article 22[4]). As a consequence, it could not be claimed withoutfurther ado and without taking into account the will of its (predominantly Arab)inhabitants (in more detail see here; response here; rejoinder here). For thisvery reason GA Resolution 181 was necessary to “legalize” the partition of theterritory.- 6 -

Apartheid in the Occupied Palestinian Territory?

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Apartheid in the Occupied Palestinian Territory?

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