Preface for French Translation of “Israeli Practices towards the Palestinian People and the Question of Apartheid”

Preface for French Translation by Richard Falk and Virginia Tilley

The release of this report by the UN Economic and Social Commission for Western Asia (ESCWA) on March 15, 2017 was not expected to be a tumultuous political occurrence. After all, this was an academic study written by two scholars, with its contents reviewed by three peer reviewers who were internationally renowned scholars. As authors we expected that there would be interest in our approach within universities and, hopefully, among civil society activists many of whom had long believed that Israel was guilty of ‘apartheid’ in its approach to the Palestinians, especially those living under occupation. What they did not possess was a detailed study supporting their impression with evidence and analysis, much less one with a UN imprimatur. We recognized that the sensitivity of the study would arouse protagonists on both sides of the conflict. Yet in the end we supposed that this attention would play out within UN forums, as many such controversies do..

Yet, happily in some respects, we were quite wrong. The release of the report almost immediately stirred up a global hornet’s net of responses. It all began with the American Ambassador at the UN, Nikki Haley, launching a harsh attack on the report and especially on its authors, coupled with the demand that the recently elected Secretary General, António Guterres, take steps to dismiss the report as unacceptable, being allegedly incompatible with position of the UN with regard to the Israeli approach to the Palestinians. With unusual rapidity, given the bureaucratic habits of the UN, the SG informed ESCWA that the report must be removed forthwith from its website. The Executive Director of ESCWA, Rima Khalaf, resigned rather than follow the directive from New York, giving her reasons in a moving letter to Guterres. It was this sequence of developments that gave our report ten times the international attention it might otherwise have received had it been handled in an appropriate and responsible manner, that is, as a serious contribution to the scholarly literature on a controversial international question that certainly deserves discussion and debate, and in our view, action.

The broader context that needs to be taken into account is the failure to find a solution for the conflict 70 years after the UN General Assembly proposed partition and 50 years after Israel gained control over the Palestinian territories of the West Bank, East Jerusalem, and Gaza. The Oslo diplomacy that had been put forward as the path to a peaceful outcome that would enable the two peoples to live in sustained peace proved to be a chimera, especially costly for the Palestinians. Israel continued to encroach on the land set aside for a Palestinian state, relentlessly expanding its unlawful archipelago of settlements in the West Bank and East Jerusalem, as well as constructing a network of ‘Israelis Only’ roads and an unlawful separation wall that created a variety of security enclaves. During these decades, the Palestinians suffered a variety of daily abuses, whether living under occupation, as residents of East Jerusalem, in refugee camps, as targets of periodic massive attacks in Gaza, and as a discriminated minority in Israel. The central contention of our report is that set of conditions legally qualifies as apartheid as this international crime is specified in the 1973 Convention on the Prevention and Punishment of the Crime of Apartheid and in Article 7 of the Rome Statute setting forth the legal framework of the International Criminal Court.

We believe our report does speak to the existing situation in which diplomacy seems frozen and the Palestinian ordeal shows no prospect of being overcome without new and militant forms of resistance by Palestinians and by the global solidarity movement that is growing ever stronger. In effect, we are saying, with the support of international law, that it has become a cruel deception to keep calling at this point for a ‘two state solution’ and wholly insufficient to demand an ‘end of the occupation.’ Instead we think the appropriate political posture within the UN, in civil society, and among people of good will everywhere is to demand ‘the end of apartheid.’

Only by dismantling this apartheid regime that is based on a structure of racial domination by Israel of the deliberately fragmented Palestinian people can the stage be set for credible diplomacy that aims at long last to achieve a sustainable peace for both peoples. Some say that our analysis calls for the end of the Israeli state. This misunderstands the implications arising from the apartheid conclusion. Just as South Africa persisted as a state despite dismantling apartheid, so Israel will persist, and nothing in our study threatens that existence. What our legal analysis insists upon is that Israel become a legitimate state by casting off the policy, practices and stigma of apartheid.

We are hopeful that European civil society will be receptive to our analysis, and do its part to implement the recommendations that we put forward. It would seem that Europe has an opportunity to exert pressure on its regional institutions and governments to adopt a more objective approach to the struggle of the Palestinian people who have been left far too long to languish in refugee camps and exile or to be utterly vulnerable targets of indiscriminate warfare in Gaza or to exist under an oppressive occupation or as third class residents of Jerusalem or as discriminate citizens of Israel. Recognition that the Palestinian people as a totality must be emancipated from apartheid gives coherence and a special significance to our assessment of Israeli policies and practices.

Finally, as authors we recognize that we possess only the capacity to put forward a legal analysis based on our interpretation of the evidence. This analysis is not the sort of authoritative legal judgment that can be provided by a duly constituted international judicial institution such as the International Court of Justice or the International Criminal Court. We would encourage the UN General Assembly to seek such an authoritative judgment at the earliest possible time. It is also feasible for national courts, acting on the basis of universal jurisdiction, to examine under appropriate circumstances whether Israel is guilty of the crime of apartheid if proper claims for legal relief are made by or on behalf of the Palestinian people.

We look forward to interacting with readers of the French translation of this report that may have questions or disagreements with our conceptual framework and legal analysis.

Richard Falk & Virginia Tilley