Does the U.S. Support an Apartheid State?

Washington Report on Middle East Affairs, May 2018, pp. 11-15

Dr. Virginia Tilley 

Janet McMahon: Hello. I’m Janet McMahon, managing editor of the Washington Report on Middle East Affairs. Since April 5, 1982, when we published our first issue, we have been covering all the activities of AIPAC and the Greater Israel lobby. So it’s great to see such a wonderful turnout for our fifth conference on the Israel lobby. As you all know, there’s a very strong wind outside today. Thank you for braving that wind. It’s a wind that I do think is blowing in our direction.

As a result of the last century’s two world wars, the majority of the world’s countries committed themselves to the principle of international law, which was embodied in the United Nations. But adherence to that principle and to the institution has not been guaranteed, and in some cases has been outright undermined.

Our first speaker, Dr. Virginia Tilley, is a professor of political science at Southern Illinois University. She earned her MA and Ph.D. from the University of Wisconsin−Madison, and an MA from the Georgetown Center for Contemporary Arab Studies. She has conducted research in Central America, Israel-Palestine, post-apartheid South Africa, and Oceana. She is the author of The One State Solution, a pragmatic analysis of the two-state solution in Israel-Palestine; and editor of Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories.

Dr. Tilley is also the co-author, with Prof. Richard Falk, of a 2017 report commissioned by the U.N.’s Economic and Social Commission for Western Asia titled “Israeli Practices towards the Palestinian People and the Question of Apartheid.” Despite intense pressure from Israel and the U.S., the commission’s chair, Rima Khalaf, refused to withdraw the report and resigned in protest. The U.N. subsequently deleted the report from its website. Fortunately, however, we are about to benefit from the expertise which informed that report’s findings. Please join me in welcoming Dr. Virginia Tilley.

Virginia Tilley: Thank you very much. It’s a distinct privilege to be here, especially in the somewhat daunting position of first speaker, who has to set the tone. 

In this presentation, I’m not actually going to talk too much about the findings of the report. We really did write that report for a broad informed audience of concerned people and it is not hard to read, I think. You don’t have to be a legal scholar to do it. So I’m going to briefly summarize the report itself, and then talk about what I think is much more engaging at this point to me, which is the implications of the report—implications for diplomacy and conflict resolution in Israel-Palestine.

I was asked first to address the question of: Is the U.S. supporting an apartheid state in Israel-Palestine? Well, yes, it is. In short, Israel is an apartheid state. By the way, there is no such thing in international law as apartheid state, but Israel’s practices are consistent with apartheid, and I’ll come to that in a moment. But the deeper answer here is yes, the U.S. is supporting an apartheid state—and so are a lot of other people, including people who wouldn’t think they are. That’s what I wanted to come to in regard to the implications of this finding for questions such as the two-state solution.

Essentially, those seeking partition are endorsing an apartheid state, and that is a bit startling, so I want to get to that. It raises this dilemma that if apartheid anywhere is inadmissible and destabilizing, it cannot comprise the basis for a just and stable peace. Now, this realization lifts us out of the question of whether you’re pro anybody and simply if you’re concerned about international peace and security, which apartheid is considered to threaten. So in this talk, again, I’m going to talk briefly about the analysis, the legal definition of apartheid, how it works, and why it requires Israel to sustain the occupation—there’s a particular point I’d like to bring forth here—and then move on to the implications and why it brings us directly to the question of reunification as the only viable mode of conflict resolution.

This analysis is based on three sources. The first is my own book that I wrote narrowly on the question of whether Israel could be expected to withdraw from the occupied territories to allow a two-state solution. The second one was this really extraordinary experience of coordinating the team of international lawyers—I’m a political scientist, I’m not an international lawyer—through a project supported by the South African government. I believe this is on the desk out there. It is a legal analysis. Any of you who are familiar with international law should find it rewarding. Others of you might find it a bit dense.

The third one, of course, is this wonderful experience I had—the privilege of working with Dr. Richard Falk on the U.N. report which was mentioned already. A lot of what I’m going to say here came out of that report, but a lot of what’s in that report relied on the previous one—“Beyond Occupation.” So the deeper legal analysis for the U.N. report is to be found there.

So what is apartheid? Very briefly, the report gets into this in detail. We use apartheid very broadly—anything that strikes us as racist or segregationist may elicit this term. That’s perfectly fine as far as I’m concerned, that we use terms any way that are suggestive or useful for a particular analysis. But if we are going to argue that states are accountable under international law to act to end apartheid, then we must refer to the law which prescribes that obligation. That means we are brought to the relevant international law, and that is found in two major instruments—the International Convention on the Suppression and Punishment of the Crime of Apartheid, and the Rome Statute of the International Criminal Court.

The first definition is far larger and much more detailed. It lists a series of acts, including segregation and reserves, that I’ll come to. But it says these are only acts of apartheid under certain conditions. They have to fit certain overarching conditions, and those conditions include, and may be similar to, practices in South Africa. The Convention is a universal instrument. Practices do not have to be exactly the same. The point is whether they have these other qualities of the law, that these are acts committed for the purpose of establishing and maintaining domination. I call that the purpose clause. [It is] that it involves racial groups and a system of oppression—that it is not just a random collection of discrete laws, but a comprehensive institutionalized system—that distinguishes apartheid.

The Rome Statute picks up on that by bringing in a new term, which is institutionalized regime. Political scientists get all flushed with pleasure when you talk about regimes, because we have loads of theory about regimes. We start to feel a little bit more on familiar land. All these elements of the definition are satisfied in the report. I’ll refer you to the report on this. Israel’s system is an institutionalized regime. It’s a comprehensive system of laws that ensures Jewish-national privileges. I want to stress that hyphenated construction here, the idea that Jews are a nation, that as a people or a nation, that they have certain privileges. Those include policy similar to South Africa—but any policy variation there would not disqualify them, necessarily, but it’s nonetheless quite suggestive that they are similar.

It is a racial conflict, according to international law defining what is racial discrimination, which includes groups defined by descent. In this case, the local construction of “Jewishness” and “Palestinianess” or “Arabness” is as descent groups. The key quality here which conveys special privileges to one group over another is postulations about their descent and, therefore, their rights to the land dating from antiquity, expressed particularly in the Declaration of the Establishment of the State of Israel, which has the status of constitutional law in Israeli law. {I’m speaking kind of fast here about law, so if you’re getting a little like the wind outside, not to worry, it’s clarified in the report.) 

Crucially, the purpose clause is satisfied. There is this aim, this formal aim, to maintain Israel as a Jewish and democratic state. We have a cluster of laws and policies on the books to look at and to confirm that Israel has that purpose, if anyone was in doubt about it. So from a legal perspective, that is satisfied as well.

What was more interesting to me when figuring out how Israel was pursuing its apartheid regime was the way it works, which is these crucial policy variations among four interwoven domains. Domain referring here to a territorial or geographic entity and a cluster of expectations, norms, rules, practices within that geographically defined ambit.

The first domain being Palestinian citizens of Israel. Now, what matters here most is the right to vote, because if you are going to have a Jewish and a democratic state, then it becomes important not to allow non-Jews to vote those laws out. That means that you have to constrain the vote. You can allow people to vote, but you can’t allow them to vote to change that point. In order to do that, you have to make sure that the non-Jewish vote is never large enough to threaten those laws. So Palestinian citizens of Israel famously do have the vote—which is often cited as the crucial difference with South Africa—but they are not allowed to vote against their own minority status. They are not allowed to vote against the Jewish-national character of Israel.

Palestinian residents of Jerusalem, about 300,000 people, have no national vote. They can vote for the municipal government, but not for the national government. So they are carefully excised from that potential body of voters who could challenge the Jewish-national character of Israel.

Palestinians in the occupied territories, of course, have no vote. They are not citizens. They can vote for the Palestinian Authority under the terms of Oslo, but they are carefully sequestered. Five-plus million people are carefully pushed out of any possibility of joining an electoral block that could challenge the state.

Domain four is the Palestinian refugees outside of the country, outside of the territory under Israeli control, who clearly, obviously, don’t have a vote.

Another way to think of this is as a system, one regime that is effectively composed of four tailored sets of laws covering each population to achieve the same goal, which is to ensure that Israel remains a Jewish and democratic state. All kinds of arguments about whether you can be a Jewish and democratic state or a white and democratic state, I recognize that, but we don’t have time to get into that now.

What I would like to stress here is that this system requires that Israel maintain the occupation. Because if Israel does not keep the occupied territories under belligerent occupation, under military occupation, it faces the twin threat that a truly sovereign Palestinian state could form in those territories which would then threaten Israel’s capacity to prevent population mixing. Population mixing is the death knell for any racial state, because the neat division of populations begins to go away. When you have people mixing, they make babies and it all falls down.

On the other hand, annexation or full integration would require providing citizenship to the Palestinians. So that cannot be allowed either. Current talk about annexation is reflecting that dilemma, but it’s better for Israel not to annex it. So what is the solution? Well, military occupation. So people would say, well, we must put apartheid to one side in order to look at the occupation. No, I think you have that the other way around. The logic of occupation is following the logic of apartheid.

Speeding right along: Part 2, Implications for diplomacy. If apartheid, as it always does, destabilizes the whole region and threatens international peace and security, it must be stopped on those grounds alone. It is immoral. It’s morally untenable. It’s a crime against humanity, it must be stopped. But how?

The vision of two states is fatally flawed. My first book on the one-state solution got into this in some detail just from a pragmatic point of view. I really only address that one thing. What does it mean, that we cannot anticipate that Israel would withdraw? It’s become an Emperor’s New Clothes kind of fantasy to think that that will happen. I don’t think that’s acceptable anymore. It requires a great deal of defense, and that defense fails.

Sustaining Jewish statehood on part of the territory, this is the crucial thing. If you partition the land in order to allow Israel to remain Israel in one part of it and a Palestinian state to form in the other part of it, you are basically saying apartheid will continue in that part where Israel is now composed. So Israel will continue to be a Jewish and democratic state, it will continue to operate the way it is operating, it will continue to be an apartheid regime in a slightly different modified border, within different borders.

Now my thought experiment to transplant that idea to South Africa: it would have been okay for white South Africans to sustain apartheid in part of the country and turn over the rest of it to black South Africans? No one entertained such an idea. It was anathema. It is the same thing here. You can’t end apartheid by dividing the land and allowing it to continue on another part of the land. There are other aspects of this but, cutting to the chase, I would propose therefore that unification is the only way to end apartheid. Since there are so many reasons to do that, we have to take that very seriously.

For activism—by activism, I mean every kind of activism, from grassroots to legal activism and diplomatic activity, and so forth. I just wanted to focus again on this angle of “end the occupation.” “End the occupation” is a mantra. It’s a slogan. It’s a sign people carry in marches. It’s also a legal argument. But how? Again, Israel’s withdrawal from the OPT cannot be anticipated. At best, it would be very partial. 

This is the Olmert plan, by the way, that you’re looking at up here, where all the yellow would be Israel and the white would be Palestine, with a little umbilicus between the West Bank and Gaza. This is obviously an unviable state building. You couldn’t control water. You couldn’t control agriculture. You can’t build a road that connects one part to another—you can’t. It’s unworkable. It would not end apartheid.

Establish a state of Palestine to leverage withdrawal. Now, this is a very popular movement right now, a big diplomatic push in the United Nations to do this. However, my point here is that if we accept the apartheid analysis, that this is an apartheid regime, then such a state would be a Bantustan. It would lack the attributions of true sovereignty. Israel, as long as it is composed as an apartheid regime, cannot accept any Palestinian state that is not a Bantustan, because any truly sovereign state would threaten the Jewish-national character of Israel. This means that a Bantustan state, a state of Palestine formed under these conditions, would only secure Palestinian poverty, underdevelopment, frustration, insecurity and essentially sustain the conflict itself.

I’d like to just take an extra moment here. (I’m going to destroy my time constraint. I hope not, and I will pray.) That little bit of extra attention to Bantustan is worthwhile. I frankly encourage everyone here to Google the Bantustans and spend 15 minutes looking at the Bantustans a bit more than we sometimes do. I went to South Africa to study this material, because I realized I didn’t understand it, and I found it fascinating as a comparison of the Palestinian Authority and the territorial and institutional constraints that it’s operating under.

Let’s just think through the logic. Apartheid imperative—The imperative of apartheid, wherever it would appear, would be to prevent racial mixing. Otherwise, the whole logic begins to fall apart. If you can’t discreetly have different populations, there’s nothing to defend. In order to do that, you need strict geographic segregation. If you’re going to actually make this work, you need separate authorities within these territories. The South Africans interestingly called them black self-government authorities. Guess what Oslo called them? Palestinian self-government authority. A great deal of conversations between Israel and South Africa about the Bantustans, they took a lot of lessons from it. I learned that from the diplomats in South Africa, by the way.

This channels Palestinian or black or indigenous political aspirations to the local authority, rather than to the dominant state. It’s very convenient for an apartheid state to displace the frustrations and ambitions and the quest for rights of the populations being dominated to their own leadership—operating under very tight constraints, of course. The pictures you’re looking at on the top is a lineup of the Bantustan leaders in South Africa. There were ten Bantustans, but nine of these leaders were in this picture. There below is the Palestinian Authority. By the way, I don’t mean to impugn the integrity or political will of any of the Palestinian Authority people. My point here is a structural one, that they are put into a position where they are compelled to act like a Bantustan authority.

From the point of view of the dominant state, the main function of this authority is to repress dissent. In the top picture, you see the Bantustan armed forces. In the lower part you see the Palestinian armed forces doing exactly that, maintaining the Bantustan through proxy measures.

The Oslo accords—we don’t have time to get into this. I wrote a separate article about this because I found it fascinating—the Oslo accords established the Palestinian Authority on terms almost identical to the South African Bantustan constitutions blow-by-blow. If you put those next to each other, you’ll find almost exactly the same arrangements. And it’s interesting that the ANC perceived this as a trap, rejected it from the beginning and refused to have anything to do with it. In fact, I understand Nelson Mandela told Arafat: bad idea. Don’t go for this, this is not a good idea. And they went for it anyway.

In short, the PA is now locked into being this self-government authority, and it cannot act independently of that role. The alternative, therefore, is if the partition can only sustain apartheid, then we must rethink the conflict, using South Africa not as a model but as an inspiration or a kind of a thought experiment. South Africans called it “colonialism of a special type.” It involves agreeing and admitting that a large population of people has come in and indigenized, has settled, is not going to go away. This is called settler colonialism. Shift the model from a colonial to a settler colonial model, and that means that you do not end it by a partition—you can’t end settler colonialism and its power by partition. You have to end it by eliminating settler domination.

Treating Palestine as a multinational state on the basis of race would only perpetuate a settler discourse. Because it is Zionism that has proposed that there are these identities that can’t—if you recognize them and institutionalize them, you’re essentially perpetuating apartheid. Treat the whole country as one country. Palestine wrongly divided by race. This was the South Africa formula. One country wrongly divided by race speeds reunifying mandate Palestine.

There is a legal basis for doing this, if we turn back to the League of Nations mandate. It always proposed that it was one country for everyone who lived there, that it would not be a Jewish state or anybody’s state. It would be a secular democratic state. So there’s a nice fat legal argument to explore there. The hard part of this is that reunification does raise very serious questions of identity shifts to reconstruct the idea of the nation, reconstruct the idea of the groups.

In this case, Palestine would stop being a foggy mandate reference or a dreamy future, but it would be one state that belongs to all who live in it. It would not be the exclusive geographic heritage of any one part of the population. It would not require the departure or exclusion of anybody—which is tough for people who have lost a great deal to it. Jewish has to be re-conceived as an ethnic group with full civil, social, and cultural rights. Not a people with superior rights to the land. Not as a nation with rights to self-determination.

“Palestinian”—this is the toughest thing for me to say as a non-Palestinian—but returning to the idea that it is a multi-sectarian identity, it still is actually embracing everyone in the mandate territory. Not Arab in any sense that would exclude non-Arabs. This is one of the problems, that “Palestinian” became “Palestinian Arab state.” Under conditions of settler colonialism, you can’t do that without excluding non-Arabs. Therefore, unfortunately, that has to be re-thought deeply, not the racial ethnic construction affirmed by Zionism and imposed by apartheid.

So that’s why the apartheid finding recasts everything, that’s why so many people don’t want to tackle it. I think it is crucial. I think it illuminates where we are and what is going on. The more I look at it, the more powerful an analysis I think it is. I do hope you will consider it seriously as a model for rethinking the conflict. Thank you very much.

Janet McMahon: Thank you so much, Dr. Tilley.