The Apartheid Paradigm

E.E. Martz
15 min readAug 27, 2019

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Photo by Yang Jing on Unsplash

Almost immediately after the apartheid government in South Africa was dismantled and segregation repealed, comparisons in academic political literature — as well as in popular common discourse — between the experience of South Africans and the experience of Palestinians exploded into prominence. Is Palestine an “apartheid state”? Does the comparison serve the interests of peace activists, or does it instrumentalize the South African struggle to inflame political divides? In this article, I’ll attempt to briefly characterize “apartheid” as a concept before exploring the historic use of Apartheid as a metaphor to illustrate the Israeli occupation of Palestine, as well as engage with the comparisons in the literature today before arguing myself that Palestine is an “apartheid state”.

Defining Apartheid

“Apartheid” is a tricky concept, one which essentially and “instantly conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and… emancipation”. Literally translated as “separateness”, defining such can take a number of different forms: defining apartheid as it applied strictly in South Africa during the 1948–1994 tenure of the Afrikaner nationalist National Party, defining apartheid as it appears in international humanitarian law, defining apartheid as a normative, figurative claim regarding racial discrimination or oppression broadly, and so forth. While the lines between these disparate definitions are obviously not always clear, I’ll attempt to focus on the definition I find to best balance concision and applicability — the definition which appears in international humanitarian law, in the form of the UN’s “Apartheid Convention” and the Rome Statute of the ICC.

Article 2 of the UN’s International Convention on the Suppression and Punishment of the Crime of Apartheid, or the Apartheid Convention, defines “the crime of apartheid” as “similar policies and practices of racial segregation and discrimination as practised in southern Africa… 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…”. Following this, a number of specific qualifiers such as arbitrary arrest and imprisonment (2.a.iii), deliberate imposition of living conditions meant to cause destruction, in whole or in part (2.b), or any measures designed to divide the population along racial lines by creating separate reserves or expropriating land (2.d). This definition gets us half of the way towards an international humanitarian definition as opposed to a definition aimed specifically at 1948–1994 South Africa, as opposed to the international resolutions of the 60s and early 70s.

Article 7(2)(h) of the ICC’s Rome Statute gets us the rest of the way there, defining apartheid as a criminal act “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”. Here, as in the Apartheid Convention, attention is drawn to the institutional nature of the racial oppression. This, according to Dugard and Reynolds, is what “distinguishes the practice of apartheid from other forms of prohibited discrimination” — the fact that it is so utterly and completely state-sponsored. Through direct application of “law, policy, and institutions” are different groups divided along racial lines wherein one group is enforces and maintains a system of oppression along said lines. A simple understanding of apartheid, then, would look something like this: a particular system of racial discrimination which enjoys an acute degree of state-sponsorship, aimed at maintaining a sociopolitical status quo within a given regime.

Comparisons in the Literature

Academic literature surrounding the topic of apartheid in occupied Palestine is relatively abundant, substantiated by international reports such as the 2007 report by UN special rapporteur for Palestine John Dugard and 2011 report by special rapporteur for Palestine Richard Falk. Comparisons between apartheid South Africa and Palestine “emerged with vigor in the mid-1990s and early 2000s”, almost immediately following the collapse of South Africa’s institutional policies of segregation and Afrikaner dominance. This is no coincidence: following the collapse of apartheid in South Africa, the very act of comparison anywhere would be loaded with normative meaning. An implication is made that just as it was abolished there, it ought be abolished here. In this section, I’ll provide an overview of how some recent prominent studies have gone about the task of comparing apartheid South Africa with occupied Palestine.

Wintemute (2017) argues that a comparison between Palestine and apartheid South Africa is appropriate insofar as “it is accurate and promotes better public understanding of the situation in Israel-Palestine, through comparison with a well-known example of racial discrimination in another part of the world”, and that referring to the current situation as an occupation “is itself an analogy… misleading, because almost every occupation one can think of is or was of much shorter duration”. Wintemute asserts that the Israeli concept of hafrada, Hebrew for ‘separation’, serves an almost exactly identical role as ‘apartheid’, and rejects the assertion that there are no similarities between the two systems as absurd. He further argues that “apartheid serves as a useful… shorthand for the universally applicable human rights violation that can be found at its core: racial discrimination in access to citizenship and the right to vote”, due to its wide recognizability internationally. I find Wintemute’s analysis to be well situated in a broad academic context, drawing from both sides of this “debate” as well as tracking decades of international humanitarian law and resolutions regarding Israel-Palestine. Drawing as well from anti-discrimination law rather than a purely humanitarian perspective, Wintemute makes the point that regardless of analogy, the treatment of Palestinians is clearly and convincingly a policy of racial discrimination. Were Israel beholden to European international law such as the European Convention on Human Rights, Wintemute concludes, “there now exists ample case law of the [European Courts of Human Rights] that would allow Palestinians to seek relief from Israel’s racial discrimination against them”.

Oren Yiftachel, geographer at Ben Gurion University, evaluates the apartheid paradigm in terms of how it “[reorders] the politics and geography of the country”, wherein the Zionist consensus is to continue work of “Judaizing” the land of Palestine. An immediate parallel could be drawn with the bantustans of apartheid-era South Africa, where land was carved out for black South Africans before their forced migration out of “Afrikaner” spaces. A defining aspect of apartheid in both the Apartheid Convention and Yiftachel’s work is how space and land is balkanized in order to maintain racial balkanization — not only are victims of apartheid policies segregated politically, they are segregated physically into spaces which themselves take on the character of the oppression the victims face. Yiftachel quotes Ehud Olmert of the Kadima party as saying “failure to reach a peace agreement and create a viable Palestinian state could plunge Israel into a South-African apartheid struggle”, which further evidences the connection between apartheid — or, at very least, the possibility of such — and the balkanization of land, space, and peoples. It is this “Zionist territorial project” which Yiftachel suggests amounts to a “process of creeping apartheid”. Attention is drawn to the ethnocratic nature of Israel-Palestine, and Yiftachel connects this fact to our working definition of apartheid, which involves maintenance of a sociopolitical status quo, by contending that “apartheid conditions always develop on the basis of existing political and cultural foundations. In Israel, these foundations are the state’s longstanding ethnocratic regime and the associated racist treatment of Palestinians who stand in the way of the state’s program of Judaization”.

Apartheid has similarly been discussed as relying on the “pillar” of territorial fragmentation by Dugard & Reynolds. In their work Apartheid, International Law, and the Occupied Palestinian Territory, they define for themselves ‘apartheid’ before exploring its essential qualities in practice. Looking specifically at South Africa at first, attention is turned to Palestine. Their work, similarly to Wintemute’s, engages with specific international humanitarian law defining and forbidding the crime of apartheid. Rather than making their comparison along the territorial fragmentation line as Yiftachel did, however, they grapple with the question of hierarchy and oppression on the basis of race. Do Jewish people constitute a ‘race’? They clarify that “the idea of race itself has long been shown as social construct rather than scientific reality… race has [since the mid-20th century] been understood as signifying socially constructed identities in a given local setting, with the term ‘race’ falling out of technical usage except in the context of racial discrimination”, and illustrate how — as a general trend — international anti-discrimination law fails to adequately define “race” in a concise and applicable way. This question became especially pertinent in the civil wars of Rwanda and the former Yugoslavia, where the international courts found that “no clear scientific or impartial method exists for determining whether any group is a racial group, and that the question rests to a large extent on local perceptions”. As a result of this void of information in the wake of clear genocides, the Rwanda tribunal established their own criteria for four categories which could be the victims of genocide: national groups, ethnic groups, racial groups, and religious groups. In the Jean-Paul Akayesu judgment, they are defined as such, respectively: “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties”; “a group whose members share a common language or culture”; “[conventionally] based on hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors”; and “one whose member share the same religion, denomination, or mode of worship”. In this context, Dugard & Reynolds argue, there’s substantial evidence that Jews and Palestinians are “perceived both by themselves and by external actors” as distinct racial groups. At very least, as evidenced by the Akayesu judgment, Palestinians could certainly be the victims of a genocide on a basis other than their race — however, genocide is a vastly different concept than apartheid. Apartheid, as we’ve defined it, requires dominance on a racial basis.

The “Apartheid Paradigm”

The debate seems to have shifted over the past couple decades away from whether or not Israel-Palestine is an apartheid state, and more towards whether it’s useful as a comparison at all. As discussed in the prior sections, ‘apartheid’ as a concept necessarily has an immense negative affect. It’s this big lump of ‘racist’, ‘murderer’, ‘colonizer’, ‘thief’ that can’t really be received positively. Is it offensive? Does that matter? Whether Israel commits apartheid gets at the heart of the debate over Israel’s legitimacy in the first place. If it is committing apartheid, what does that mean for the peace process, especially the concept of a two-state solution? In this section, I’ll attempt to map a debate in the literature regarding the accuracy and utility of the “apartheid paradigm” in discussions regarding Israel-Palestine.

As early as 1995, there were open calls to discuss occupied Palestine academically in terms of apartheid. By the mid-2000s and early 2010s, it had reached a kind of fever pitch and began warranting responses. The Jerusalem Center for Public Affairs, in their report titled The Campaign to Delegitimize Israel with the False Charge of Apartheid, points to the details of South African apartheid, such as their prohibition of intermarriage and radical political disenfranchisement and argue that Israel demonstrably does not have the same policies. Goldstone in 2011 and Pogrund in 2017 write op-eds in the New York Times arguing against the comparison, arguing along somewhat distinct lines. Goldstone largely argues that Palestinian terrorism represents too great a security threat, and that those circumstances provide Israel a kind of exceptional status. Pogrund argues similarly to the JCPA, that specific policies such as a lack of suffrage or entirely segregated medical care were apparent in apartheid South Africa but not occupied Palestine.

Dugard & Reynolds directly faced a challenge to their work cited heavily in the previous sections. Yaffa Zilbershats, professor of Law at Bar-Ilan University, contends in his 2013 response to Dugard & Reynolds that they attempt to hold Israel to the laws of a sovereign state rather than an occupying state — that is, they disregard the fact that Israel is at war. Further, Zilbershats agrees with Goldstone’s argument that Palestinians represent a unique security threat, and that Israel’s unique security position allows them a kind of exceptional consideration in regards to accusations of apartheid. Dugard & Reynolds responded in 2013 that “Zilbershats fails to address the deep structural entanglement of the regimes of occupation, colonialism, and apartheid that we describe in the Palestinian territories, clinging instead to the superficial image of mutually exclusive types of fruit [apples and oranges]”. Further, the “Israeli exceptionalist” idea of a unique security position is tantamount to a “terrorism smokescreen” that has been similarly argued by other colonial powers in order to justify oppressing a given population. Dugard & Reynolds suggest that “the presence of Nelson Mandela on a number of US terrorist watch lists until 2008 is testament to the vacuousness of the term”.

The Anti-Defamation League, a non-profit aimed at eliminating hate crimes with a focus on anti-semitism as well as “[advocating] for a safe and secure democratic Jewish State of Israel and [combatting] efforts to delegitimize it”, has itself responded to allegations of apartheid in Israel. They argue along motivational lines, drawing on prior arguments in regards to terrorism-mitigation and suggesting further that “Israel’s [participation in the peace process] belies accusations that Israel’s goal is the persecution of Palestinians. To be sure, Palestinians… do encounter hardships as a result of Israeli policies… However, these procedures and structures have been developed to promote security and thwart potential terrorist action, not to persecute or segregate”. It’s not that the terrorism threat puts Israel in an exceptional position where laws don’t apply, it’s that the terrorism threat suggests the oppression is motivated by something other than racial superiority: security.

A common response to accusations of apartheid, oppression, racism, genocide, or what-have-you in the Occupied Palestinian Territories — repeated in the ADL piece and elsewhere — is that Israel is being given special attention while other allegedly worse offenders are somehow ignored. While I believe this is an obfuscation of the argument at hand, it appears in enough of the literature on the topic that I believe it warrants a response — they aren’t. Other states who commit more egregious crimes — which are egregious, certainly — are granted attention. Bogeymen are made out of self-identified socialist states such as Venezuela, Cuba, the Democratic People’s Republic of Korea, and China. International sanctions, targeted executions, and CIA-backed coups materialize from their demonization. Israel has, writ large, faced none of that demonization. Further, many infamous abusers of human rights such as Saudi Arabia are often reviled internationally and only remain in stations of power and legitimacy through the statecraft of the United States; criticism of Israel does not contradict this fact, it instantiates it.

Apartheid State

From the brief examination of the literature in the section above, it seems those opposed to the paradigm base their argument on the premise that the detailed policies in apartheid South Africa differ from the detailed policies in occupied Palestine. However, as we’ve defined such in the sections prior, apartheid as a concept need not apply merely to specifics of policies. If comparison between disparate states was only possible if every single policy was identical, no comparisons could ever be made. No two states are identical, which is why ‘apartheid’ as a concept has so many viable definitions outside of the strictest, 1948–1994 South Africa definition. As we’ve defined apartheid in the beginning of this paper, those opposed to the paradigm haven’t adequately responded. The claims that terrorism uniquely justify their policies exhibits a parroting of the Western international norm for the past century, and frankly doesn’t meet the standard of justification. To suggest Palestinians deserve collective punishment for the actions of a minority is absurd. My argument that Israel-Palestine constitutes an apartheid state follows these general lines: that “apartheid” as a concept and international legal norm applies to Israel-Palestine and need not apply merely or specifically to the exact policies as Apartheid South Africa, and that Israel’s security situation, while unique, does not justify flagrant violation of international humanitarian law.

Critics of the “apartheid paradigm” often criticize it on either precision or functional grounds. Critics who argue along functional lines suggest that the comparison isn’t useful, whereas precision critics suggest that the comparison isn’t accurate. Whether the comparison is useful is a much larger question and would involve evaluating the average circumstances of the Palestinian people over time as comparisons grew more prevalent, which lies far outside the scope of this paper. I will merely respond to the precision critic, as my argument that Israel-Palestine constitutes an apartheid state makes no claim regarding the function of such, merely that it is the state-of-things. I, frankly, am convinced by the Rome Statute. It reads like a laundry list of ills committed against the Palestinians, knowingly and provably. Beyond that, however, the working definition we’ve established clearly includes Israel: the systems of ethno-nationalism endorsed and disseminated from the highest level of government, the fragmentation of land, the supremacy of one group over another, the literature we’ve explored suggests that this is very clearly the case in Israel-Palestine. Even as recently as the Oslo Accords, Palestine was further partitioned into different legal “Areas” and illegal settlement construction carries on to this day. To point at obscure specifics of Apartheid South African policy where no exact parallel exists in Israel and suggest that somehow “debunks” the apartheid claim is tantamount to pointing at the “No Africans” signs on water fountains and saying “Ha! Ours say ‘No Arabs!’” as if that mitigates it.

The wealth of evidence that we’re faced with, when confronted in good faith, has little but one serious response: that Israel’s unique security situation in regards to supposed Palestinian terrorism either justifies or nullifies their position as an apartheid state. Based off of the definitions we’ve examined and the working definition we’ve established, there is no exception for terrorism, so it cannot be nullified. The response that there’s a unique security threat could only serve as a justification. This is problematic on a number of grounds: it acknowledges the reality of the apartheid but suggests it’s somehow “worth it” or “necessary”, and endorses a kind of collective, summary punishment. Both collective and summary punishment are violations of the Fourth Geneva Convention, which makes them overwhelmingly difficult to justify ethically, if possible at all. Even according to the most sterile, frigid utilitarian analysis, one would need to demonstrate that harms against the entire Palestinian population are outweighed by the harms against Israel — to briefly illustrate the absurdity of that differential, one need only be reminded that there are millions of Palestinians, and Israel lost only 67 soldiers in Operation Protective Edge. The casualty gap between Israel and Palestine as their conflicts grow hotter is consistently stark in favor of Israel. Israel has not faced severe enough losses in terms of life or property from the Palestinians to justify collective, summary punishment; I would suggest, further, that no amount of losses would justify such. It’s purely and simply absurd and unethical, at face value, to punish individuals for crimes they did not commit. The only individuals that could justifiably face punishment or exclusion for the crimes of terrorists, are terrorists themselves.

Conclusion

In conclusion, answering the question of whether Israel-Palestine constitutes an “apartheid state” is a bigger undertaking than one might be led to believe initially. The comparison, while younger than one might believe — coming to prominence only during the collapse of Apartheid South Africa, and growing in recent years — has an incredible breadth in academic literature. Comparisons, disputes, responses and refutations abound and vary with incredible diversity. However, they all seem to distill down to one of only a few points: It is an apartheid state, it isn’t, or we shouldn’t really make the comparison to begin with. One gap of the work I’ve done here is a deep exploration of the lattermost point, that functional criticism. Future scholars or interested thinkers might grapple better with that dynamic, which seems like either a sisyphean task or a black hole of conjecture; either way, deeply outside the realm of what I’m capable of answering.

In engaging with the existing scholarship, and addressing common responses to the apartheid comparisons of the day, I believe I’ve sufficiently argued that Israel-Palestine constitutes an apartheid state of Israeli supremacy over Palestinian Arabs. Further, I’ve demonstrated — perhaps to my own discredit — that such a comparison is hardly novel in the academic literature and has a resounding and lively debate surrounding the nuances of how differing conceptualizations result in distinct analyses and how literalist or legalistic definitions might lead one to different conclusions. Much of the literature seems to speak past itself, failing to substantively debate the facts or conceptualizations at hand; I hope my contribution here illustrates that fact.

Works cited:

  1. Dugard, J. and Reynolds, J. “Apartheid, International Law, and the Occupied Palestinian Territory”. European Journal of International Law. Vol. 24 №3. August 2013.
  2. G.A. res. 3068. “International Convention on the suppression and Punishment of the Crime of Apartheid”. 1974. Entered into force July 18, 1976.
  3. Rome Statute of the International Criminal Court, 1998. (n.d.). Retrieved from http://legal.un.org/icc/statute/99_corr/cstatute.htm
  4. Peteet, Julie. “The Work of Comparison: Israel/Palestine and Apartheid”. Anthropological Quarterly. Vol. 24 №1. 2016. pp 247–281.
  5. Wintemute, Robert. “Israel-Palestine Through the Lens of Racial Discrimination Law: Is the South African Apartheid Analogy Accurate, and What if the European Convention Applied?”. King’s Law Journal. Vol 28 №1. 2017. pp 89–129.
  6. Marshall, Mark. “Rethinking the Palestine Question: The Apartheid Paradigm”. Journal of Palestine Studies. Vol 25 №1. 1995. pp 15–22.
  7. Yiftachel, Oren. “‘Creeping Apartheid’ in Israel-Palestine”. Middle East Report. №253. 2009. pp 7–15, 37.
  8. Zreik, Raef. “PALESTINE, APARTHEID, AND THE RIGHTS DISCOURSE”. Journal of Palestine Studies. Vol 34 №1. 2004. pp 68–80.
  9. G.A. res. 3068. “International Convention on the suppression and Punishment of the Crime of Apartheid”. 1974. Entered into force July 18, 1976.

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E.E. Martz

Writer based in Seattle, WA. Voted “2021 Writer to Watch Out For, in the Threatening Way”. http://redward.online