Correspondent’s misapplication of law does struggle for human rights a disservice

IN the annual search for a silver bullet solution to the Middle East problem, activists are rushed into reductionist conclusions. In the process open intellectual inquiry, debate and analysis about the conflict closes down. The resulting dogma and political correctness undermines the struggle for human rights.

In a recent piece, published by IOL, correspondent Azad Essa claims: “Not everyone agrees with the Israeli apartheid terminology, despite its rising legitimacy among many academics and scholars in the field. As a contentious analogy, the UN had never – until last week – officially called it apartheid.”

The statement by Essa is only partially true, since in 1975 the UN did in fact issue a resolution 3379 equating Zionism with racism. However after the end of the Cold War, the same UN general assembly issued a resolution 46/86, (adopted on 16 December 1991), reversing its earlier resolution. Thus in 1991 “the United Nations General Assembly voted overwhelmingly … to revoke the bitterly contested statement it approved in 1975 that said: “Zionism is a form of racism and racial discrimination.””

The official count found 111 nations in favor of repealing the statement and 25 nations, mostly Islamic and hard-line Communists, voting against. Thirteen nations abstained. Seventeen other countries, including Egypt, which recognizes Israel, and Kuwait and China, did not take part in the voting.”

That news-hounds can’t be bothered to do their homework, verifying the facts, can be seen by the persistent belief amongst many activists that resolution 3379 is still in force. A 2015 piece by Ben Norton of Mondoweiss, for example, a news outlet exposed as a purveyor of ‘alternative facts’, (i.e. facts which are not true), proceeded to ignore the revocation, and myopically accuses both the United States and Israel of wanting to rewrite history of a resolution which in any event, is null and void.

Until last week, the equation of Israel’s existence with ‘racism and racial domination’, was considered a foregone conclusion, an emerging fact of international law. This week, things were no longer so certain. The problem arose when a controversial report by a UN agency, the Economic and Social Commission for Western Asia (ESCWA) equating Zionism with apartheid, and touted by IOL as definitive of the problem, was suddenly shelved, albeit from intense political pressure.

Rima Khalaf, the executive secretary of the United Nations agency which had released the report, accusing Israel of implementing “an apartheid regime,” was thus moved to resign from her post on Friday, while editors who had treated the announcement by the press agency Reuters as a sure sign of truth from on high, suddenly appeared to have egg on their faces.

It turned out that none other than U.N. Secretary-General Antonio Guterres had requested Khalaf to withdraw the report. Guterres through a spokesperson, said that the report, released by ESCWA, “does not reflect the views of the secretary-general” and it was thus published without consultation with the UN secretariat, nor it seems, the UN leader. It was an awkward and embarrassing defeat for the Palestinian lobby.

Palestine does not have full UN status

Palestine as an entity, itself does not have full status at the UN and only gained Non-Member Observer State’ Status in 2012. It is not the purpose of this piece to argue the merits of the UN secretary-general’s decision, nor whether or not Palestine should be accorded full status as a member state, nor consequently whether Israel should even exist — ( nor whether or not both parties, should be superseded by a binational state incorporating Palestinians and Israelis under a common constitution). So far as this writer is concerned, oppression in any form, whether state-sponsored, or on an individual basis should end. How we got here and how we arrive there is unfortunately not up to us individuals to decide, but rather a matter for all the parties to the conflict.

The question immediately raised at the outset, is whether the misapplication of law,  the equation of our country’s experience in apartheid, with what is happening in the conflict, is absolutely necessary and helpful? That the use of the ‘apartheid analogy’ (and thus a phrase gradually being stripped of any meaning ) was turning out to be merely that, ‘an analogy’ — useful in some respects for political analysis, but awkward as a method of general application impacting on strategy – surely necessitates a return to the drawing board for all activists, even if this means conducting new research?

To find out why this eventuality, presents a serious predicament, the ESCWA report débâcle risks providing a blank cheque to those in office, to once again do nothing about the problem, one has merely to read the Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter Apartheid Convention), which had it roots in the opposition of the United Nations to the discriminatory racial policies of the South African Government – known as apartheid.

Controversial history of the Apartheid Convention

For many years Apartheid, was annually condemned by the General Assembly ‘as contrary to the Charter of the United Nations ; and was regularly condemned by the Security Council.’ In 1966, the General Assembly labelled apartheid a crime against humanity 1 and in 1984 the Security Council endorsed this determination 2. The Apartheid Convention was thus considered the ultimate step in international condemnation of the system, ‘as it not only declared that apartheid was unlawful because it violated the Charter of the United Nations, but in addition it declared apartheid to be criminal.’

However, when the Apartheid Convention was drafted, like today, there was a division of opinion over the exact scope of the Convention. According to the UN human rights high commission, ‘most delegates saw the Convention as an instrument to be employed only against South Africa. Others, however, warned that the Convention was wide enough to cover other States that practised racial discrimination’ 3.

At the face of it, the Apartheid Convention declares that apartheid is a crime against humanity and that “inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination” are international crimes. Article 2 of the Convention defines the crime of apartheid –“which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa” – as covering “inhuman 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”. (my emphasis)

It then lists those acts that fall within the ambit of the crime. These include ‘murder, torture, inhuman treatment and arbitrary arrest of members of a racial group; deliberate imposition on a racial group of living conditions calculated to cause its physical destruction; legislative measures that discriminate in the political, social, economic and cultural fields; measures that divide the population along racial lines by the creation of separate residential areas for racial groups; the prohibition of interracial marriages; and the persecution of persons opposed to apartheid.’ (my emphasis)

No-one ever prosecuted for crime of apartheid.

Despite its UN pedigree, no one was ever prosecuted for the crime of apartheid under the apartheid convention, while apartheid lasted in South Africa. And no one has ever since been prosecuted for this crime. The ongoing difficulty in attaining justice for the victims and survivors of the apartheid system, points to the dilemma faced by anybody wishing to simply legislate away the many problems faced. In any event, if one was to merely rely on the Apartheid Convention and its allied legislation, for guidance, one would surely miss out on the greater lessons in strategy to be learnt, that of peaceful conflict resolution via dialogue, and restorative justice between all the parties? Dialogue which inevitably leads to compromise positions on both sides, and which are assuredly necessary in the Middle East of today?

“The weight of the evidence supports beyond a reasonable doubt the proposition that Israel is guilty of imposing an apartheid regime on the Palestinian people, which amounts to the commission of a crime against humanity,” wrote ESCWA in the controversial report it released on March 15

Aside from being an indictment of the status quo, the ESCWA report itself has serious flaws in defining its subject matter. There are far better analytical and intellectual tools available than the use of open analogy instead of first principles. One has merely to locate the very, real experience of hegemony and oppression within the conflict to see why this is so.

Again, analysis of the problematic issue of the existence of the state of Israel, is not the purpose of this piece. Rather, as a person affected by legal definitions based upon discredited race science, one has got to take issue with the reiteration of race science by any report, UN sponsored or otherwise, especially one which argues that in the geopolitical context of Palestine, “Jews and Palestinians can be considered “racial groups”.”

ESCWA report deploys racism

One would not expect that the controversial ESCWA report, touted by activists, should perversely resort to a form of racist dogma of its own, considered anathema in modern South Africa itself? An inversion of the Apartheid Convention, in which race categories are imposed, instead of described according to phenomena on the ground, presumably as an intellectual means to solve the problem?

The same error appears in a controversial 2009 HSRC report commissioned to test the apartheid hypothesis of UN special rapporteur John Dugard, and thus the report describes a ‘socially constructed race identity’ that does not exist in law, in order to meet the definition of apartheid, and thus facts based upon conclusions instead of the other way around.

Occam’s razor would suggest the simplest solution to the problem is that of incompatible nationalism, not race per se. Incompatible nationalism which begats injustice vs injustice. On the one hand, Israel, the purported Jewish State. On the other, a narrow ethnic Arab state, the Palestinian Authority, and Gaza, an Islamic State.

Consider the purported facts, may or may not be true, but rather, as one critic would have it, the result of ‘a shibboleth of race’, an untrue statement about race resulting from an Anti-Semitic canard’, a thesis which if misapplied, undermines the entire struggle for human rights in the Middle East, along with the peace process?

What is certainly objectionable here, aside from the imposition of apartheid-like race categorisation by activists and social scientists in grouping persons according to race for the purposes of meeting legal conventions, is the delineation of race science, albeit via an unproven hypothesis — the authors insistence, as did Adolf Hitler and German eugenicists — that all Jews comprise a distinct race (or are all Zionists now a race?), and hence the necessity to also attribute a race to Palestinians.

The failure to provide any empirical evidence in support of such assertions, aside from a description of abusive power relations, and myopic tinkering with legal definitions, places those defending the report in the terrain of public opinion instead of fact. Are we now expected to simply believe in the apartheid analogy for whatever reason, perhaps on faith alone? As the troublesome founder of modern Israel, Theodor Herzl attempted to point out, “No nation has uniformity of race” — “My associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.”

It is thus better to remind those parties to the conflict that even the founder of Israel would have disagreed with what is taking place in Israel and the Palestinian territories today.

The problem of legal exclusion

According to the ESCWA: “Although the term “apartheid” was originally associated with the specific instance of South Africa, it now represents a species of crime against humanity under customary international law and the Rome Statute of the International Criminal Court, according to which: “The crime of apartheid” means inhumane acts… 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.”

If readers wish to read the actual Rome Statute it also contains words such as “context” and ‘racial group’. The problem arises when the report dodges its own definitions, in cherry picking from statutes, by stating:

“This report accepts the definition of the International Convention on the Elimination of All Forms of Racial Discrimination of “racial discrimination” as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

In adopting this definition, the same report falls into absurdity by failing to cite the very exclusions of the statutes to which it relies upon:

“This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.”

Why this would be problematic, can be seen in the simple case of nation-statism. Every nation-state discriminates on the basis of nationality. Thus in leaving the report open to the logic of other statutes, a serious flaw is introduced.

Arguably, this exception is exactly what the authors of the apartheid bantustans wished to exploit, and what the Israeli government, itself arguably a UN-sponsored bantustan for Jews, has consistently exploited, in approaching the primary problem with regard to the de jure denationalisation of persons considered undesirable by the regime. Bare in mind, no physical wall was ever built by the apartheid state.  Bantustan leaders were puppets of Pretoria at best. None of the bantustans ever waged war against the central government.

It is therefore important that we state in conclusion: Nations are not races, and people should be free to practice their religion, whatever the national circumstance or geographical location. One can only hope for an end to hegemony and oppression on both sides, and for a peaceful resolution to the conflict.

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