‘An Illegitimate Regime’: How a Top Rights Group Shed Israeli Myths to Recognize Apartheid

PALESTINE - ISRAEL, 20 Jul 2020

Amjad Iraqi | +972 Magazine - TRANSCEND Media Service

In an exclusive interview, human rights lawyer Michael Sfard explains what led Yesh Din to charge Israel with the crime of apartheid in the West Bank.

9 Jul 2020 – When he was a rising human rights lawyer two decades ago, Michael Sfard vehemently rejected the word “apartheid” to describe Israel’s military rule over the West Bank and Gaza Strip. Despite being a fierce critic of the occupation and dedicating his career to defending Palestinian rights, he told himself that “words matter,” and that the occupation, while gravely unjust, was still a temporary structure that could be overturned with the help of international law.

Years later, Sfard — now a renowned advocate — has drastically changed his tune.

In what may go down as a significant moment in Israeli public discourse, human rights NGO Yesh Din released a detailed legal opinion on Thursday, chiefly authored by Sfard, who serves as the organization’s legal counsel, arguing that Israel’s 53-year occupation of the West Bank constitutes an “apartheid regime.”

Reviewing its development from white-minority rule in South Africa to its definition under the ICC’s Rome Statute, the opinion asserts that Israel is committing the international crime of apartheid by carrying out the “systematic oppression and domination” of one group over another in the territory “with the intention of maintaining that regime.”

“Up until now, Yesh Din would say that specific policies are illegal or are even war crimes, but now we are talking about the regime being illegitimate,” Sfard told +972 in an exclusive interview. The goal of the legal opinion, he says, “is to change the internal Israeli discourse, and no longer talk about our presence in the West Bank as an occupation that is temporary, but as an illegitimate crime.”

While the analysis focuses on the West Bank, Yesh Din emphasizes that this by no means excludes the argument that “the crime of apartheid is not committed only in the West Bank. That the Israeli regime in its entirety is an apartheid regime. That Israel is an apartheid state.”

Israeli troops take position around the Cave of the Patriarchs, also known as the Ibrahimi mosque, in the old city of Hebron in the West Bank, October 30, 2019.
(Wisam Hashlamoun/Flash90)

This radical shift is emblematic of a growing reckoning among Jewish-Israeli critics of what Palestinians have long diagnosed about their oppression. Although the Israeli government’s recent push toward formal annexation has bolstered global discussions about Israeli apartheid, Sfard said that the legal opinion was part of a longer process of recognizing that “the beast we are confronting has to be described for what it is,” regardless of annexation.

The interview was edited and shortened for clarity.

Let’s start with the obvious questions: Why now? What was the thought process that led to the legal opinion?

My personal reflection on the topic began a few years ago when I left for New York to write my book. One of the things I was struggling with was the feeling that the paradigm of “occupation” could not carry the full weight of the reality on the ground. While an occupation of course exists, and the legal concept of belligerent occupation does explain some of the things we see, there is much more that it does not explain.

Yesh Din has been operating in the West Bank for 15 years, and has gotten to know very intimately the character of the government in the West Bank in all its dimensions — the legal framework, the policies, the practices, the things that are not said but done.

Our feeling was that it needed a name, that the beast we are confronting has to be described for what it is. For obvious reasons, apartheid as a legal concept was a primary candidate, though it took a while before we had the time and resources to do the analysis. This is a discussion that we have neither started nor ended, but it’s one more voice to hopefully say things that will enrich the conversation.

Personally, I first heard the notion of “apartheid” in reference to Israel’s presence in the West Bank, and to the general conflict, in the early 2000s during the Second Intifada and the construction of the separation barrier. I have to say that my initial reaction was complete objection to the word. I told myself that words matter — that not every murder is a genocide, and not every institutional discrimination is apartheid.

But deep inside, I wasn’t sure of myself; the fascination with the concept’s suitability was eating me inside. So I set out to learn about apartheid through different discourses including law, and by visiting South Africa.

Yesh Din appears to be taking a different approach from the NGO B’Tselem: in 2016, B’Tselem declared that it would stop filing complaints to Israeli military authorities for investigations, which seemed to give it relatively more freedom to be more outspoken about the occupation’s nature.

While Yesh Din echoes many of B’Tselem’s criticisms, you still have pending cases before Israeli courts, and will not be dropping your litigation. What does Yesh Din’s position on apartheid mean for its legal work? Do you expect any ramifications from the authorities, including the courts?

The Israeli authorities don’t need us to say radical things to impose a backlash on us — it’s something that’s done even when we lower our tone. I actually feel the opposite is true: we are saying what we feel is the truth in a reasoned way with an extensive report. You can agree or disagree, but it lays down the argument and makes the case based on data, precedents, and legal analysis.

While some parts of the legal system will be offended, there is still some respect for the professional way that we conduct our struggle. I don’t think that an individual legal case [represented by Yesh Din] will be affected by the fact we are saying things that are uncomfortable to hear. If there are officials and judges whose decisions are affected by this, they’ll be minor criticisms. So that wasn’t a consideration.

Let’s not forget, this is not a report on the judiciary or the judges; it’s about the system that was created throughout the years. The “music” of the report is that we [Israelis] are all responsible for apartheid, that I am responsible. This is an important nuance. I’m not looking at it from the outside, and my counterparts in the Attorney General’s office, or the Justice Ministry, or on the bench, all know that this is my identity, and those with integrity will respect that.

Having said that, we’re arguing something that has huge implications. Up until now, Yesh Din would say that specific policies are illegal or are even war crimes, but now we are talking about the regime being illegitimate.

So the question that comes back to bite us is: what do you do if it is an apartheid regime? Do you continue to be in “opposition” — someone who opposes the policies of the regime — or do you become a “dissident” — someone who objects to the regime itself? And do you go through the path of “justice” that the illegitimate regime offers you?

To answer this, I have to refer to my “forefathers” in South Africa. Lawyers in apartheid South Africa never stopped going to the courts, because Black people asked them to go. The decision whether to go to court or to boycott it does not rest with me, but with Palestinians. As long as Palestinians want us to act on their behalf, we don’t have the privilege of declining based on the claim that “we know better.”

It’s certainly good to acknowledge that lawyers and NGOs can’t dictate the struggle. That said, there is still a dilemma that even Palestinian organizations face, which is that they can sometimes feel culpable for telling Palestinian clients that there’s a chance, however small, that they can win.

How do you find that line between identifying the occupation as an apartheid regime and therefore can’t expect to achieve everything you hope, while still going forward?

Nothing changed the prospects of victory or success (which are two different things) since I wrote the report. It was the same regime beforehand. In my dealings with my clients, I try to make clear the high mountain we’re climbing, and what can and cannot be expected.

At the same time, one has to recognize the fact that Palestinians are not leaving the court completely empty-handed. The courts are an institution in which Palestinians sometimes get remedies — mostly it’s not in fabulous rulings, but rather in the process that turns them from completely transparent, weightless individuals into subjects of negotiation. Only when they “lawyer up” and go to court do they become “somebodies” [in the eyes of the authorities].

There are also victories, such as the recent case challenging the Regularization Law [which sought to legalize scores of Israeli settlement “outposts”, but was struck down by the Supreme Court last month].

There was a big dilemma when we filed the case a few years ago. There were some people who told us: “Don’t file any petitions… let the government suffer the consequences.” But for me, there were tens of thousands of people who were going to lose their land, and they wanted us to act on their behalf. So if I have a chance to win it for them, I’m not going to say no because of a speculative benefit. And with the world as it is today, I’m not sure what kind of backlash the government would have gotten for implementing the Regularization Law.

It’s not “business as usual” after our conclusion that this is an apartheid regime. The apartheid analysis will find its way into our briefs and our litigation. Our intention is to change the internal Israeli discourse and no longer talk about our presence in the West Bank as an occupation that is temporary, but as an illegitimate crime.

This reflects the debate around using the “law of the oppressor,” a debate that South Africans also had. What other lessons have you taken from South African lawyers about how to challenge apartheid?

We [in Israel-Palestine] are in a lousier position than the anti-apartheid movement in South Africa.

First and foremost, we have two separate movements here to end Israeli apartheid: one Israeli, the other Palestinian. In South Africa it was one movement, and it was led by the oppressed. That’s a big problem, because the Israelis have more power, more privileges, more rights, and are much less vulnerable compared to the Palestinians.

Mourners at a funeral ceremony for those killed by South African police on the International Day for the Elimination of Racial Discrimination, at Langa Township in Uitenhage, March 1, 1985. (UN Photo)

Mourners at a funeral ceremony for those killed by South African police on the International Day for the Elimination of Racial Discrimination, at Langa Township in Uitenhage, March 1, 1985.
(UN Photo)

Second is Israel’s international position compared to South Africa. But in the last decade, we can see an almost tectonic change in international civil society regarding the conflict. Even in the United States, even in the American Jewish community, you can see this change. Our report and advocacy campaign aims to accelerate that shift, to help understand that the international community must put pressure on Israel to stop apartheid.

For years many Palestinian lawyers, NGOs, and activists have provided extensive, professional, legal analysis charging Israel with the crime of apartheid, including in recent submissions to the International Criminal Court.

However, it is likely that Yesh Din’s opinion will receive far more attention, and perhaps will be taken more seriously in influential circles abroad because it is an Israeli organization. This is challenging for Palestinians because, while we are often glad that such reports are coming out, there’s also the strange feeling that comes with seeing our work viewed so differently.

You talked earlier about your initial denial of the term apartheid: do you think this issue was the same for other Jewish-Israeli lawyers and organizations? Why else do you think it has taken so long for them to concur with what many Palestinians have said?

It is denial. But it’s also important to note that we Israelis live under extreme brainwashing from the Israeli discourse, leadership, and media. And while we [Israeli leftists] question many things and have a self-identity as critics, we were still born in this context.

I myself was born in West Jerusalem in 1972 with Hebrew as my mother tongue. I was raised in the Israeli education system and went to the army until I became a refusenik. I absorbed the Israel narrative throughout my life, and so did my friends and colleagues.

We’ve been blinded by the Israeli narrative, and it took time to realize that the arguments every Israeli repeats — such as “we don’t want to control the Palestinians,” or “we want them to be the masters of their own fate,” or “we will strike a deal when we have a partner in negotiations” — are all a lie. The myth was especially strong during the Oslo years that Israelis intended to end our “undesired domination” of the Palestinians. It takes time to realize that this is not true — that this is all one enterprise of domination, and to internalize our supremacy.

The Israeli left, as small as it is, has also changed, in part because it includes many Palestinians today. I was a left-wing activist in high school, but I never acted shoulder to shoulder with Palestinians, not even Israeli Palestinians [citizens].

Today, there is no such thing as acting on this issue without Palestinians. Their understanding of the conflict has enriched us Jewish activists, including in groups like Yesh Din and B’Tselem. I will never see the reality the same way as you do, I can only try to understand better what you see — and vice versa.

The opinion doesn’t close off the possibility of identifying other parts of Israel’s one-state reality as apartheid. Still, it asserts that the regimes in the West Bank and inside Israel can still be seen as distinct, and perhaps undergoing a “process of unification.”

However, the foundations of the occupation not only derive from core Israeli laws, but were first constructed inside the state as a military government on Palestinian citizens of Israel from 1948 to 1966. How does this make the ’67 regime separate from the ’48 one, rather than an extension or continuation?

When I first studied the international crime of apartheid, it immediately struck me that it is a regime-based crime. But international law doesn’t define what a regime is, so you have to turn to other disciplines to find out.

To my amazement, “regime” is a notion that has flexibility. It is the totality of public authorities that have powers, normative laws and bylaws, policies, practices, and so on. You can look at a certain geographic area through different lenses, and using different resolutions can find different regimes.

For example, we can look at the whole area between the Jordan River and the Mediterranean Sea in a low resolution and say that there is one political power that creates and carries out its decisions. But you can also look at it in a high resolution, and find that there are distinct baskets of public authorities, policies, and practices in different areas inside that territory.

When you look through that closer lens, the military occupation in the West Bank is a distinct regime. It does not exclude a different analysis from a higher vantage point, but there are complexities [inside Israel] that you don’t have in the West Bank.

For example, can the regime be classified as apartheid when the inferior group has the political right to vote and run for government [like Palestinian citizens of Israel]? I think it can if those rights are completely diluted and made meaningless. I don’t know if they are meaningless in Israel, but there are many legitimate opinions about that question.

We as Yesh Din have made a choice to focus on the West Bank as our area of expertise and mandate. But it’s important for us to say that it does not exclude other analyses that can be done in parallel. We understand that there is a price or risk of looking at one segment of the Israeli polity, so the way to deal with that risk is to acknowledge and spell it out.

There is an argument in the opinion that says: “although [apartheid’s] origin is historically linked to the racist regime in South Africa, it is now an independent legal concept with a life of its own, which can exist without being founded on racist ideology.”

I have to confess that my first thought when reading it was that it came off, at least unintentionally, as dissociating the political goal of Jewish supremacy — or to be frank, Zionism — from Israel’s institutional structures. Could you clarify the thinking behind that assertion?

One of the problems I’ve encountered when I run my ideas by Israelis is that apartheid, for those who know what it is, is seen as part of a racist ideology in the same way that the Nazis had a racist ideology: that people have biological or genetic traits that scientifically make them inferior to others.

Because the Apartheid Convention and the Rome Statute defined apartheid using the word “racial groups,” the interpretation is counterintuitive. It’s not about biological assumptions of race, but rather on social and political groups in which members of a certain nation have preferential group rights.

Simon KAPWEPWE (standing), Foreign Minister of Zambia, addressing the Seminar on Apartheid, Racial Discrimination and Colonialism. 4/Aug/1967 (UN Photo)

Simon KAPWEPWE (standing), Foreign Minister of Zambia, addressing the Seminar on Apartheid, Racial Discrimination and Colonialism. 4/Aug/1967 (UN Photo)

I wasn’t trying to say that there is no ideology of supremacy that puts the principle of Jewish preference over Palestinians; of course there is such a thing (and the report mentions that). What I meant was that there is not the same type of scientific argumentation that one race is better than the other.

In the end, the crime of apartheid can be committed no matter what the motivation is. Apartheid could, for example, be economical — that the whole project is about profit, and it would still be apartheid. In our case, we have a national conflict. In other places it could be about ethnicity, caste, or others; it doesn’t have to be based on racist ideology.

It sounds like you were trying to further universalize the framework of apartheid.

Absolutely. The prohibition of apartheid under international law represents the core value that the world has adopted after the Second World War: that we have a common humanity, and a regime that frontally and systematically violates that principle by claiming that there are those entitled more than others — that is the thing the crime is trying to prevent.

The international laws and conventions that identify the crime of apartheid, and their features in Israel-Palestine, have been around for decades. But unlike with South Africa, the world seems to be giving Israel an exception to apartheid. Why is this exception the case, and where do you think the conversation needs to go in order to end it?

First, we are only 70 years past the biggest crime against humanity ever known. I am the grandson of Holocaust survivors. There is an understandable but unacceptable reluctance to deal with the crimes of the “ultimate victims.”

You can see how European powers are walking on eggshells when it comes to Israel, and Israel has managed to mobilize this collective and justified guilt in the Western world to meet its own needs. If there is a lesson to be learned from the history of genocide and antisemitism, it is that you should not be silent in the face of evil and the persecution of groups.

Second, Israel is seen, sometimes rightly, in existential danger with its neighbors seeking to destroy it. Even if these statements mean very little or are shallow propaganda, and even with Israel being the strongest power in the Middle East and with a superpower as its ally, this discourse gives Israel a lot of room to maneuver. There’s also the issue of Israel’s place as a front base of America in the Middle East. But I think all this is changing.

As for what’s next: as I said before, I’m very careful with words. “Apartheid” carries a lot of weight, and I wouldn’t use it lightly. If that allegation will become something that is discussed more seriously — not as a curse word but as something that has merits — eventually, when you confront an apartheid regime, your obligation in any country is to bring an end to that regime.

That makes it very different from occupation. For example, Europe has reached the conclusion that it has to adhere to a policy of differentiation, to ensure that not a cent of its money goes to settlements. If it comes to the conclusion that Israel is an apartheid regime, that will have a huge impact on what it’s obliged to do by law, not only in refusing to assist that regime, but to put pressure to end it.

People should ultimately ask themselves what the end goal of Israel’s policy is. Twenty years ago, most people would say it was two states — but I’m sure that’s not their answer today. And if one democratic binational state is also not their answer, then they have no escape route from apartheid.

Basically, that “no solution” is by default an acceptance of apartheid.

Right. When I started writing the opinion, I had only Israel’s acts on the ground to prove its intention to perpetuate domination. For 50 years the Israeli government was saying the “right thing” — that the occupation is temporary until peace agreements will replace the ceasefire agreements.

But then the gap between the Israeli statements and the Israeli actions disappeared. With their own words, Israeli officials have shattered their own alibi — a very lousy alibi that couldn’t hide the deeds anyway. Today my work is much easier.


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