Fruit of the poisonous tree: Israel as 'apartheid state'
Jeremy Gordin - James Myburgh |
19 June 2022
Jeremy Gordin & James Myburgh on the noxious origins and purposes of the 1973 convention underpinning this debate
A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit. – Matthew 7: 18 (KJV).
On 27 July 1656, the elders of the Jewish congregation of Amsterdam excommunicated 23-year-old Baruch Spinoza, owner of one of humanity’s most outstanding and influential minds. This sanction – which still, by the way, remains in force – has reverberated throughout history for some 366 years.
It doesn’t seem though that the recent expulsion of the SA Jewish Report from the Press Council of SA will have the same effect. Looks as though the SAJR will soldier on, as will the PCSA, and we’ll all turn our attention, as most people already have, to more “important matters” – such as cogitating on why the president of the beloved country allegedly stashed millions of US dollars in a couch in the lounge of his Limpopo farm.
Additionally, it’s not entirely clear how significant, in terms of realpolitik, the actions and rhetoric of the SA BDS coalition and allied organizations are. A well-informed Israeli journalist – a supporter of the BDS’s overall cause, though not of its various types of rhetoric or propaganda – has written: “The bottom line re BDS, however, is that Israel doesn’t give a f--- for BDS in SA or anywhere else except the US. I’m sure [the Israeli government] doesn’t like what BDS SA does or says, but the only place that really matters is America, which, of course, keeps Israel afloat”.
In any case, it seems to us that the argument around the Clover cartoon[i] is a sideshow and that the more important issue relates to the SA BDS coalition’s long running campaign to have Israel declared guilty of crimes against humanity, on the basis that its restrictive and repressive policies towards the Palestinians violate the 1973 UN Convention on the Suppression and Punishment of the Crime of Apartheid.[ii]
This convention, as the SA BDS Coalition SA regularly points out, defines the “crime of apartheid” to be “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,” and declares this to be a “crime against humanity”.
People tend to accept this convention as authoritative, with the debate revolving around whether certain Israeli policies and practices are, or are not, analogous to those of apartheid-era South Africa. Proponents of the analogy claim that several core elements of what they call “a system of control” in the occupied Palestinian territories are similar to those that prevailed under the apartheid regime.[iii]
They point to issues such as the ID system (for individuals), the pattern of Israeli settlements, separate roads for Israeli and Palestinian inhabitants, military checkpoints, marriage law, the West Bank barrier, the “use” of Palestinians for cheaper labour, the West Bank exclaves, inequities in infrastructure, legal rights [iv], disparities of access to land and resources between Palestinians and Israeli settlers, and of course the actions of the Israeli security forces.
Opponents of the analogy – many of whom, please remember, are themselves critics of the occupation – say that the apartheid comparison is factually and morally inaccurate and simply aimed at delegitimizing Israel itself. For example, former SA journalist Benjamin Pogrund, who lives in Israel, said this at a relatively recent (February 2022) Palestine-Israel Journal (PIJ) editorial board discussion on “Apartheid and the Future” [v].
“What is the purpose of going to all this trouble to use the apartheid label? ... Talking about apartheid is a diversion from the main goal [which should be] exploring how to end the occupation. ... “Apartheid,” Pogrund continues, “is not just a word to be glibly tossed around.
“... In 2001, I was at the Durban anti-racism conference. Since then, I have watched and monitored the political manipulation of the apartheid word around the world. Some have gone along with it out of cynicism. Others have been drawn along, perhaps with the best intentions, not really knowing what they are subscribing to. The word has become a slogan. ... Those who say it the loudest know the least.”
Here are some words from Walter Benjamin’s 1940 Theses on the Philosophy of History (Über den Begriff der Geschichte), written just a few months before he committed suicide on the French-Spanish border rather than fall into the hands of the Nazis [vi].
Benjamin wrote in Thesis vii: “There is no document of civilization which is not at the same time a document of barbarism. And just as such a document is not free of barbarism, barbarism taints also the manner in which it was transmitted from one owner to another.”
One glosses this to mean, among other things, that we seriously imperil our understanding of what is (historically) influencing us and our world if we forget – or misinterpret – historical conditions and circumstances, especially in relation to major documents and suchlike.
It’s also worth remembering that, although Spinoza, for example, was never physically harmed as a result of his excommunication[vii], words and documents can in many cases prove to be even more damaging than sticks and stones.
In this debate then the document that really deserves renewed scrutiny is the 1973 Convention itself – the authors and purposes of which seem to have long been lost in the mists of time.
The concept of “crimes against humanity” was originally formulated to address a practical legal problem that arose soon after the defeat of Nazi Germany by the allied forces. In April 1945 the US 2nd Infantry Division occupied the small German town of Hadamar in the state of Hessen. In the town there had long existed a small sanitorium that had, for many years before the war, taken care of the mentally ill.
American officials soon discovered that this facility had, during the war, been turned into a site for the Nazis’ Aktion T-4 involuntary euthanasia programme. Between January 1941 and August 1941, 10 072 mentally or physically disabled Germans were brought to the facility from institutions across the country and mostly gassed to death, their bodies disposed of through cremation. The operation was then temporarily halted before resuming the following year. Between 1942 and 1945 a further 4 400 victims had been put to death at the facility, mainly through lethal injections, though some were allowed to die through starvation and neglect.
When the American authorities had sought to try those directly responsible for murdering 15 000 German citizens, they found they had no jurisdiction to do so under international law. However, the senior staff of the facility could be, and were charged, convicted, and then hanged or sentenced to long prison sentences, for putting to death 476 forced labourers from the Soviet Union and Poland who had contracted tuberculosis and had been sent to the facility to be killed.
To deal with this legal lacuna, the Allied forces introduced the crime of “crimes against humanity” in Allied Control Council Law no. 10 of 20 December 1945.[viii] The worst of the Nazi war criminals (besides those who committed suicide or escaped) were then prosecuted for this and other crimes at the International Military Tribunal at Nuremberg.
To give just one example of the enormity of the crimes this concept sought to encompass, Paul Blobel, the organiser and executioner of the Babi Yar (or Babyn Yar) massacre in Kyiv was – along with 22 other commanders of Einsatzgruppen A to D – indicted in July 1947 for Crimes Against Humanity for this and other mass killings involving the death of approximately one million civilians and prisoners of war in areas under German occupation.
In its judgment, the Nuremberg Tribunal noted that “One inexperienced in the phenomena of which the human soul is capable [could, in] reading the reports of the Einsatzgruppen, well despair of the human race. Here are crimes that defy language in the depths and vastness of their brutality. Here pitilessness reaches its nadir and nothing in Dante’s imagined Inferno can equal the horror of what we have discovered happened in 1941, 1942, and 1943 in White Ruthenia, the Ukraine, Lithuania, Estonia, Latvia, and the Crimea.”
Nineteen of the accused were ultimately convicted on these charges and 14 were sentenced to death by hanging. Blobel himself was executed in June 1951.
In other words then, the concept of Crimes Against Humanity was introduced into international law to allow for the specific purpose of allowing for the prosecution of those responsible for the worst crimes human beings had ever committed.
Those guilty of them were, whatever your position on the death penalty, those criminals most deserving of the highest punishment. Note, too, that there is no statutory limitation that applies to the prosecution and punishment of such crimes.
Through the 1960s and early 1970s the Soviet Union and its allies had, in their diplomatic maneuverings at the UN, repeatedly sought to label apartheid as a crime against humanity, and to equate Zionism with racism and even Nazism.
In these efforts they enjoyed the enthusiastic support of Arab, Asian, and African nationalist regimes which – while no strangers to the horrendous maltreatment of their own racial or ethnic minorities, or even mass murder – saw both Israel and white South Africa as two of the last remaining holdouts of European colonial domination.
Apartheid was regarded as objectionable, but not because it was regarded as a great and new evil, as the Nuremberg Tribunal had viewed the actions of the Einsatzgruppen.
Truth be told, apartheid was an old and all too familiar evil. Many of the foundational segregationist practices and laws, particularly as they affected the black African majority, dated back decades, to a time when the Union of South Africa had been a British colony. And the implementation of apartheid itself post-1948 was both modelled on, and drew its legitimacy from, segregationist ideology and the laws prevalent in the USA at that time.
The attitude of the Western powers meanwhile was that the concept of crimes against humanity had been precisely defined through the Nuremberg process and in terms of these definitions, apartheid, obnoxious as it may have been, “did not constitute a crime against humanity in the strictly legal sense”.
Be this as it may, the initial draft of the convention declaring apartheid to be a crime against humanity was formulated by the Soviet Union and submitted to the UN in October 1971 (Guinea was a co-sponsor.) Article II of this document applied the “crime of apartheid” to a series of acts committed for the purpose of “establishing and maintaining racial domination” by one racial group over another.
These covered the totality of the policies of apartheid and separate development, but also included the “exploitation” of the labour of members of the oppressed racial group, as well as the legislative and security measures the state had used to suppress the revolutionary challenge from the ANC, PAC and SACP.
But what, you might ask, or some people might ask, is the big deal? Apartheid needed to go, and what is wrong with the UN giving it a push in this way? The ANC/SACP was against apartheid, as all decent people were (and surely are), and was merely being assisted by its then allies, the USSR.
But the crucial point is that by declaring a whole political and economic system a crime against humanity, the Soviets were also “brand[ing] as criminal” (Article I), all organisations, institutions and individuals who pursued the “policy of apartheid”. Article III stated that the provisions of the Convention applied to “representatives of the State authority and private individuals who, as principals and accomplices, participate in or directly incite others to the commission of the crime of apartheid, or who conspire to commit that crime, and to representatives of the State authority who tolerate its crimes.”
Through the combination of these articles the net of guilt cast by the convention was both wide and finely meshed. It fell upon almost the entire white population and on any black person who sided with them against the “revolutionary struggle”.
Given that most whites participated in and supported the system in one way or another – from voting in whites-only elections, to serving as conscripts in the army, to working for the state or private business, to paying their taxes – it is difficult to discern who exactly among them (other than those who threw in their lot with the revolutionary forces) would have been able to slip through this net.
Thus, a legal concept that had been formulated to allow for the prosecution under international law of individuals who had personally ordered or executed mass murder was now being extended, through this convention, to millions of individuals who had committed no actual crimes and were guilty of no personal wrongdoing at all.
In terms of the Soviet’s 1971 draft such individuals were branded as guilty of the same “crime” for which Blobel and other Nazis had been convicted and hanged. State parties to the convention were furthermore empowered by Article IV of this draft to do whatever was necessary to “punish persons” responsible for the “crime of apartheid”.
Categorising whole classes of people as “criminal” in this way is self-evidently dehumanizing of them. And, if you put this draft of the convention in the political context of the time, this seems to have been very much the point of it.
For at the same time that they introduced this draft to the UN, the Soviets were covertly sponsoring and orchestrating an imminent effort by their proxies in the SACP and ANC to unleash a mass racial insurrection and “People’s War” against the white minority regime in South Africa.
This had involved, to begin with, the infiltration of incendiary racial propaganda into the country, calling on the “black youth” to prepare to rise up against the “white enemy” and black “sell-outs”. The fuse for this racial explosion, when it was finally lit, was to be provided through the infiltration, by ship, of a number of ANC guerillas and a huge quantity of armaments into the country (the botched “Aventura” expedition).
Had this operation not failed at the outset, but rather succeeded as the Zanzibar revolution had done (the probable model), the intention was that the victorious revolutionary forces would have then moved to “suppress and destroy” their historical opponents, to seize all the wealth “stolen” by the whites, and then to implement a Marxist-Leninist dictatorship to oversee the transition to a fully socialist system.
The authors of the convention, in other words, neither had clean hands nor was their goal a liberal, democratic society in South Africa – one in which the rights, liberties, and interests of all the country’s peoples would be protected. The reality was quite the opposite. This was a document intended to legitimate the revolutionary violence of the People’s War and, once power had been seized, the revolutionary agenda of the ANC/SACP and its Soviet sponsors.[ix]
From the outset apartheid had been opposed, and its injustices documented and exposed from within the “system,” by liberal white politicians, journalists, academics, and researchers.
And apartheid was for the most part first reformed and then eventually dismantled by the National Party and the Afrikaner establishment itself – albeit acting under huge pressure from inside and outside of the country – in a process that began in the late 1970s and culminated in the first non-racial democratic elections of 1994, which brought the ANC to power. This was also the period with the greatest levels of state, revolutionary and counter-revolutionary violence, which ultimately claimed some 30 000 lives within the country.
The 1973 Convention has had implications that have extended long after the end of the apartheid system. In its report issued in December 1998 South Africa’s Truth & Reconciliation Commission approved the 1973 Convention, declaring the “apartheid system” to be “a crime against humanity”. It added, “For the international community, indeed, this is no longer a point of debate.”
With this critical endorsement now in hand ANC government leaders were able to unleash a barrage of vitriol – in the parliamentary debate on the TRC report in February 1999 – against their political opponents in the NP, the liberal Democratic Party, and the white minority as a whole.
In his speech the Minister of Justice Dullah Omar stated that the “white political parties” present in the chamber symbolized the “erstwhile rulers, oppressors and perpetrators” and suggested that they had no right to be there but had been “generously permitted to participate in the new democracy without recrimination”. He then accused them of refusing to “acknowledge that they need to cleanse their hands, which for decades have been dripping with the blood and tears of millions of victims.”
In her speech the then Minister of Health Nkosazana Zuma asked rhetorically, “Do we adopt an eye-for-an-eye or a tooth-for-a- tooth attitude? Do we use our painfully won liberation to enslave yesterday’s masters? Do we conduct Nuremberg-style trials and hunt the perpetrators 50 years on?”
She suggested that the ANC certainly still had the right (as originally intended in the 1970s) to “order the arrests of those who were perpetrators and dispossess those who used the crime against humanity to amass wealth,” to take the “wealth away from those who exploited and bled the workers of this country to death, using apartheid laws,” to sack the “public servants who served the apartheid state and did not voice their indignation against it,” and to get “rid of judges who presided over the judiciary and became part and parcel of the perpetrators of crime against humanity.”
But, she went on, the ANC had out of the depths of its humanity, chosen not to do any of these things, but instead had gone down the Truth and Reconciliation route.
If the liberal opposition was still under any illusion that the net of guilt cast by the 1973 Convention was not meant to fall upon them as well, this was well and truly dispelled by ANC Deputy Minister of Environmental Affairs and Tourism, Peter Mokaba. Speaking on behalf of the ANC in response to DP leader Tony Leon’s speech in the debate Mokaba stated:
“The one thing that we must accept if we want to talk about reconciliation is that, except for a few white democrats [i.e. revolutionaries], the entire white political, social, economic and cultural establishment, including white business, white labour, the media, the churches, the schools, the universities, the judges, the magistrates, etc., has blood on its hands. That is why it is very disconcerting that some of them, like the DP, think that blacks are so stupid as to believe the lie that their hands are clean. The fact is they are as guilty as the whole white apartheid establishment.”
To sum up then, the 1973 Convention, as introduced by the Soviets in 1971, expanded the definition of crimes against humanity from the Nuremberg one, to include the economic and political system of apartheid that prevailed in South Africa at the time.
It thereby branded as “criminal” practically the entire white population, and many black South Africans as well. The convention condemned, in other words, not just supporters of apartheid, but even those individuals and organisations that opposed the system from within but sought its reform, rather than its revolutionary overthrow.
The intention was to “legitimate” the deprivation of this “criminal” population of their property, their positions, and of their basic political and human rights, from top to bottom.
Since there is no statute of limitations on crimes of humanity, by the way, there can be no expiation. The Afrikaners qua people – if one can put it this way – or white South Africans, if you prefer – did everything “that was asked of them”; all forms of apartheid ended almost three decades ago. And yet “they” remain as “guilty” as they were the day apartheid ended.
What are some of the practical consequences of this? Here’s an ostensibly “small” one. In a case currently before the courts various parties, including the government, are seeking to have displays of the old South African national flag outlawed on the basis that it is a symbol of the apartheid “crime against humanity,” and this overrides the right to freedom of expression.
Lawyers for the Minister of Justice told the Supreme Court of Appeal that displaying the “image of the old South African flag” is akin “to the use of the German swastika.”
There is also a major push for functionaries of the old South African state, even those guilty of no actual crime, to be prosecuted on “crimes against humanity” charges. In the prosecutions of former policemen for murders committed in the 1970s and 1980s the National Prosecuting Authority has introduced crimes against humanity charges into the indictments.
What is the relevance of this history for the debate around Israel-as-an-apartheid state?
When BDS members from the liberation movement tradition declare Israel to be guilty of the apartheid “crime against humanity,” we must assume they know what they are doing.
They know the origins of the 1973 Convention, its intentions, and its ultimate implications (even if very few others do). What is essentially being done is to equate the repressive policies of the Israelis towards the Palestinians with the atrocities committed by Nazi leaders and functionaries against the Jews and others during World War Two. They are suggesting, in effect, that both have committed the same “crime”.
Besides being self-evidently false, this comparison is morally obscene – and if it were made directly and clearly there would be huge blowback against it. What makes it possible however is the 1973 Convention, which serves as a sort of “cut out” between the two elements of the comparison.
By citing this convention, the same point can be (and is) more slyly made and given that certain previous practices of “apartheid” lie closer to the Israeli side of the river than the Nazi German one, it is possible to make the comparison with some degree of plausibility.
Palestinians in the occupied territories can (and do) have an appalling time – and this is an understatement – as a result of many things. In the circumstances, it is tempting, to use the term “a crime against humanity” as a sort of moral thunderbolt to condemn such injustices and jolt people out of their moral torpor.
There are thus some in Israel (and the West) who seek to make the apartheid analogy in a good faith effort to curtail or to end those real wrongs that Palestinians do suffer.
Yet they are doing so seemingly unaware of the Convention’s original purposes and its implications, including the criminalization of a total system and all the people participating in it, thus dehumanizing the people as a group, and branding such people guilty of the most heinous crimes known to mankind – ones for which there is no expiation.
However appealing this tack may appear, this is the fruit of a poisonous tree, and people bite on it at their peril.
[i] Which has been well dealt with by Paul Trewhela; see here.
[ii]One of the issues that comes up in this discussionis theRome Statute of the International Criminal Court (1998-2002). To clarify: the Rome Statute adopts the definition of the “crime of apartheid” from the UN Convention on the Suppression and Punishment of the Crime of Apartheid – word for word.
The 1973 convention was never ratified by any Western liberal democracy, for reasons touched on above. However, the effect of this inclusion in the Rome Statute has been to lend considerable new legitimacy to the 1973 convention, especially as its origins have been increasingly forgotten.
[v]The Palestine-Israel Journal is a non-profit organization founded in 1994 by two prominent Palestinian and Israeli journalists, to encourage dialogue between civil societies on both sides and broaden the base of support “for the peace process”.
[vi] It should be noted that Benjamin was also “tormented” by concerns besides the Nazis; see Walter Benjamin: A Critical Life by Howard Eiland and Michael Jennings, Harvard University Press, 2014.
[vii] Roger Scruton has written that Spinoza “was later attacked on the steps of the synagogue by a knife-wielding assailant shouting ‘Heretic,’ and was apparently quite shaken by this attack and for years kept (and wore) his torn cloak, unmended, as a souvenir”.
[viii] Allied Control Council Law no. 10 of 20 December 1945 recognised the “crime” of “crimes against humanity” as “Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.”
Those found guilty of this (or the other listed) crimes could be punished through one or more of the following: “(a) Death. (b) Imprisonment for life or a term of years, with or without hard labor. (c) Fine, and imprisonment with or without hard labour, in lieu thereof. (d) Forfeiture of property. (e) Restitution of property wrongfully acquired. (f) Deprivation of some or all civil rights.”
[ix] For further information, see inter aliaA death warrant for the Afrikaner, Politicsweb(referred to above); External Mission: The ANC in Exile, 1960-1990 by (the late) Stephen Ellis, 2012, of which a fresh edition will be published next month by Jonathan Ball Publishers; and also Terreur en Bevryding: Die ANC/SAKP, die Kommunisme en geweld(1961-1990) by Leopold Scholtz, JBP 2022; and much else besides.