Not poisoned fruit

Roy Isacowitz replies to Jeremy Gordin and James Myburgh's article on BDS, Israel and the apartheid analogy

Over the past 18 months, three major human rights NGOs have published studies purporting to prove that Israel is an apartheid state – i.e., that it’s structures and activities in both Israel proper and the occupied territories meet the international definition of apartheid.

Publication of the studies by Amnesty International, Human Rights Watch and B’Tselem, a leading Israeli NGO, has been something of a landmark in the perennial debate over whether an analogy can be drawn between the policies of Israel, including those of its military apparatus in the West Bank, and the racist system of apartheid which originated in South Africa.

Anti-Zionist organizations like BDS and individual journalists and commentators, myself included, have been drawing the analogy for years; it has been rejected for just as long by Israel, its supporters and even critics of Israel who believe the apartheid analogy to be a bridge too far. For the most part, their objections rested on the obvious differences between apartheid as practised in South Africa and current conditions in Israel (Arab judges on the High Court, no “Whites Only” park benches, and so on).

It has taken the intervention of the human rights heavyweights to shift the debate. That is mainly due to their prominence and respectability, but also to the fact that they anchor their arguments firmly in international law. Apartheid has been on the international agenda since the Sixties; today there is a substantial body of international resolutions, conventions and jurisprudence that establishes apartheid as a crime in its own right, irrespective of its origin in South Africa.

It is no longer sufficient to dismiss the Israel-apartheid analogy by pointing out that Arab medical staff treat Jews in Israeli hospitals, something that would never have happened between blacks and whites in apartheid South Africa. Critics now need to grapple with the definition of apartheid in international law – a definition which, on the face of things (“establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them…”), includes Israel in its ambit.

That is precisely what Jeremy Gordin and James Myburgh have done in their article “Fruit of the poisonous tree: Israel as ‘apartheid state’,” (Politicsweb, 19 June 2022), arguing – by clear implication if not in as many words – that both the initial convention that established apartheid in international law and one of its key clauses were illegitimate.

If I understood the article correctly – it is far too long and meanders from Spinoza to Nkosazana Dlamini Zuma, from Walter Benjamin to Paul Blobel – Gordin and Myburgh have two key objections to the analogy:

- The criminalization of apartheid in international law is invalid, due to the motivations of the then-Soviet Union in sponsoring the first convention;

- The inclusion of “crimes against humanity” in the international definition of apartheid was tendentious and therefore invalid.

The authors also reach two main conclusions, derived from their objections.

- The application of the apartheid label to Israel is illegitimate, given the initial convention’s lack of validity;

- The use of the apartheid label to describe Israel is a covert way of delegitimizing the state.

This entire edifice, when reduced to its essentials, rests on one, fairly minor historical fact and a huge amount of supposition – almost all of it, in my view, incorrect or overblown.

The first international definition of apartheid was formulated in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (UNGA Resolution 3068). The Soviet Union was one of the two sponsors of the convention, the other being Guinea. (Interestingly, while the authors infer that the USSR was the lead sponsor, with Guinea as a parenthesized co-sponsor, the document is listed in the UN database as the “Guinea-USSR Convention”.)

Moscow at the time was funding and supporting South African liberation movements and, as always, assiduously expanding its influence via the Comintern. From that concurrence – the Soviet Union both co-sponsoring the convention and supporting South African liberation movements – the authors construct a gigantic conspiracy theory.

The apartheid convention, the authors maintain, was integral to a devious – though unsuccessful – Soviet plot, “the intention [of which] 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.”

That supposedly being the case, Gordin and Myburgh have no problem delegitimizing the convention as “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”.

It’s worth noting that the Soviet Union was ardently wooing the burgeoning African bloc in the UN at the time. African decolonization was nearing its end and dozens of new states had entered the world body, most of them high on fervour but low on skills and cash. Currying favor with the vast continent beyond South Africa was a lot more important to the Soviets than a small, ragtag liberation force that would never win – and never did.

Beside which, the convention passed by a large majority, with 91 in favor, four against (South Africa, Portugal, the UK, and the US) and 26 abstentions. It’s difficult to imagine that the Soviet Union was able to bribe or bully all of them into compliance. Even without the Soviets, apartheid would have passed into international law.

Gordin and Myburgh’s second target is the insertion of “apartheid” into the list of offences that constitute “crimes against humanity”. Here the ground they stand on is a little sturdier, though undermined to a large extent by their own hyperbole.

The judicial construct of “crimes against humanity” was first introduced in the 1945 Nuremberg Charter, prior to the prosecution of the surviving Nazi leaders in the first Nuremberg trial. It was defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population … or persecutions on political, racial or religious grounds …”.

When “crimes against humanity” was subsequently included in the 1973 UN convention it included an additional crime that didn’t appear in the Nuremberg Charter – apartheid. Transcripts of the debate prior to the endorsement of apartheid as a crime against humanity indicate that not everyone supported the expansion of the definition.

“Deplorable as it is, we cannot, from a legal point of view, accept that apartheid can in this manner be made a crime against humanity,” said US Ambassador Clyde Ferguson Jr. “Crimes against humanity are so grave in nature that they must be meticulously elaborated and strictly construed under existing international law, as set forth primarily in the charter of the Nürnberg Tribunal and as applied by the Nürnberg Tribunal.”

The UK representative, a Miss Solesby, said that crimes against humanity had been precisely defined in the Charter of the International Military Tribunal, Nuremburg, and later by the International Law Commission in its principles of International Law recognized in the Charter of the Nuremburg Tribunal and in the Judgement of the Tribunal.

“According to those definitions – and there has been no subsequent generally accepted expansion of those definitions – apartheid does not constitute a crime against humanity in the strictly legal sense.”

Despite the Anglo-American dissent, apartheid was listed as a crime against humanity by a large majority, with only the UK and US voting against. When the convention’s definition of apartheid was updated and included in the Rome Statute of the International Criminal Court (1998), apartheid remained a crime against humanity.

By then, of course, a democratic government had been elected in South Africa and the Soviet Union was long gone. The authors of the statute could presumably have omitted apartheid without incurring Soviet wrath, but they did not do so.

Ergo, Soviet sponsorship of the original convention is a straw man; it has no relevance today.

So why Gordin and Myburgh’s preoccupation with Soviet authorship and crimes against humanity?

After all, if Israelis are ever hauled before the International Criminal Court, there’s a surfeit of crimes they could face without apartheid even being mentioned – “deportation or forcible transfer of population”; “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”; “torture”; “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender …”

Who needs apartheid when you have that?

The authors need it because it gives them a mallet with which to bash BDS South Africa and other “Israel = Apartheid” activists. The logic is simple, if fallacious. The crime of “crimes against humanity” was introduced to deal with the ultimate evil of the Nazis; it came to include apartheid through the underhand maneuvering of the Soviets. Therefore, anyone accusing Israelis of apartheid is in fact accusing them of being Nazis – and anyone who calls a Jew a Nazi is an anti-Semite.

The authors write: “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’.”

That is simply incorrect.

Defendants from Rwanda, the Congo, Bosnia and several other countries have appeared before the ICC, facing crimes delineated in the Rome Statute. None of their deeds, appalling as they were, has been equated with Nazi atrocities. Nowhere has it been suggested that they committed the same crime as the Nazis. That’s not how the law works.

“Fruit of the poisonous tree: Israel as ‘apartheid state’,” is an ambitious article. In it, Gordin and Myburgh endeavor to delegitimize international law on apartheid as the fruit of Soviet subversion and duplicity and to circumscribe crimes against humanity as being applicable to Nazi extermination camps and genocidal actions only. It’s an interesting effort, but it doesn’t work.

What we are left with, after all the history and verbiage, is yet another assertion that those who buy into the Israel-Apartheid analogy are anti-Semites. Ho-hum.