Monday, February 20, 2012

NGO “Apartheid State” Campaign: Deliberately Immoral or Intellectually Lazy?

NGO Monitor

Labeling Israel an apartheid state is part of a larger strategy of political warfare that includes NGO boycott, divestment, and sanctions (BDS) campaigns and “lawfare” cases against Israelis. It is the latest manifestation of the 1975 UN “Zionism is racism” resolution and the 2001 Durban Conference NGO Forum declaration.
The only internationally recognized case of apartheid was in South Africa. Customary law is based therefore on those practices that were unique in apartheid South Africa. Since Israel does not share these practices, it cannot be defined as an apartheid state under international law. Many NGO claims and legal arguments equating Israel with apartheid South Africa originate with the PLO’s Negotiations Affairs Department and were developed for propaganda purposes.
Many NGOs falsely portray the Arab-Israeli conflict as a dispute motivated by alleged Jewish race-hatred of Arabs, rather than one based on competing national and territorial claims.
A significant portion of the organizations involved in apartheid based demonization receive substantial funds from the European Union, European governments, New Israel Fund (NIF), Ford Foundation, and George Soros’ Open Society Institute.
NIF’s funding of such organizations is entirely inconsistent with a March 2010 statement by CEO Daniel Sokatch, that “apartheid” is “a historically inaccurate and inflammatory term that serves only to demonize Israel and alienate a majority of Jews around the world.”
NGOs charging “apartheid” omit the context of terrorism in order to falsely frame counter-terror measures. International law specifically allows for rights restrictions as necessary to balance security needs and humanitarian considerations.
Under international law, countries have the right to set citizenship and entry criteria. Such conditions are enacted by every state in the world and are not the equivalent of apartheid.
A 2009 publication by Adalah (NIF- and European-funded) and Al Haq (European-funded), entitled “Occupation, Colonialism, Apartheid?: A re-assessment of Israel´s practices in the occupied Palestinian territories under international law” declares Israel guilty of “colonialism” and “apartheid,” and of placing Palestinians in “reserves and ghettoes.” The report is premised on an expansive distortion of international law.
Some “Israeli apartheid” activists benefit from the open and democratic nature of Israeli society. Omar Barghouti of PCABI is a PhD student at Tel Aviv University. Adalah, which participated in an Israeli Apartheid Week event “on Apartheid as it is experienced by Palestinian citizens of Israel,” has direct and repeated access to Israeli courts and policy-makers through dozens of court petitions and regular appearances at Knesset hearings.
NGOs routinely ignore practices in the Arab and Muslim world that more closely resemble the practices of apartheid South Africa, such as legally mandated gender and religious discrimination in Saudi Arabia.


At the NGO Forum of the 2001 UN Durban Conference, 1500 NGOs issued a resolution declaring Israel to be “a racist, apartheid state” and labeling“Israel’s brand of apartheid as a crime against humanity.” These NGOs called upon the "international community to impose a policy of complete and total isolation of Israel as an apartheid state…" and demanded the “establishment of a war crimes tribunal” to “bring to justice those who may be guilty of . . . the crime of Apartheid . . .”

The strategy of transforming Israel into a pariah state by linking it to apartheid South Africa is the latest incarnation of the campaign that produced the 1975 UN General Assembly declaration that “Zionism is racism.” Although the bigoted declaration was repealed in 1991, NGOs claiming to promote universal human rights resuscitated both the tactic and the canard at the Durban conference in order to delegitimize Jewish self-determination rights. Labeling Israel an apartheid state is part of a larger campaign of political warfare that includes NGO boycott, divestment, and sanctions (BDS) iniatives and “lawfare” cases against Israelis. The apartheid label is intellectually empty, legally false, and another example of how many NGOs adopting the mantle of human rights adopt lofty-sounding rhetoric in the service of indefensible and morally questionable aims. The singling out of Israel as an “apartheid state” is a form of incitement and in itself may be an expression of racism.
Background: The Apartheid System in South Africa

Between 1948 and 1994, the South African Afrikaner National Party, representing a minority white population, imposed a system of “unprecedented racial reordering” over the nonwhite majority population known as “apartheid” (separateness). The movement was predicated on “white superiority” and mandated the complete legal and de facto separation of racial groups in all aspects of South African society. The body of laws comprising the apartheid legal code included such legislation as the Reservation of Separate Amenities Act; Act No. 49 of 1953, which demanded racial segregation in all public amenities, public buildings, and public transport; and the Bantu Homelands Citizens Act of 1970, which stripped all blacks of South African citizenship, while assigning them Bantu citizenship. Apartheid legislation reached into every aspect of life: the law demanded separate (and inferior) hospitals, cemeteries, toilets, elevators, government services, buses, restaurants, parks, beaches, etc… (see photo examples) and disenfranchisement of the nonwhite population. Integrated cities were forcibly segregated, and nonwhites were deported to outlying areas. Interracial marriages and extramarital relations, were criminalized. The country was divided into “white territory” and nine “tribal ‘homelands’” for non-whites called Bantustans. In addition, the government imposed a racial identity on ethnic groups, “disallowing people to choose their own identity,” and stripping citizens of the right to vote for representation outside their ethnic groups. Freedom of the press, speech, and association was also severely restricted.[3]
Background on Israeli Society

In contrast, Israel is in no way comparable to apartheid South Africa. There is no rule of a racial minority over another racial majority. The Israeli Jewish population comprises peoples from many nationalities and ethnicities. Equal protection is guaranteed by law.[4] Arabs, who comprise approximately 20% of the Israeli population, are full citizens and have the right to vote. Arab parties[5] hold 11 Knesset seats[6] and several Arab MKs represent the Kadima, Yisrael Beiteinu, and Likud parties. Arabs serve as judges in the Israeli court system, including an Arab member of the Israeli Supreme Court. Arabs serve as high-ranking officers in the Israeli army, and as government ministers, ambassadors, and civil service workers. Arabs are integrated into all aspects of Israeli society.[7] Public facilities such as hospitals, buses, courts and restaurants are open to all, irrespective of race and ethnicity. There is no law requiring discrimination as there was in South Africa. Despite their deliberate rejection of Israeli citizenship on political grounds, East Jerusalem Palestinians are considered permanent residents who can vote in municipal elections, receive full health and social benefits, gain employment in civil service, enroll in Israeli universities, purchase property and travel freely throughout Israel. Many East Jerusalem Palestinians are now applying for Israeli citizenship.[8]

In the West Bank, Palestinians are under the jurisdiction of the Palestinian Authority as per a series of negotiated agreements between the Palestine Liberation Organization and the Israeli government (the Oslo Accords). The Palestinians Authority has its own government, parliament, ministries, diplomatic representatives, social services, courts, police force, etc. Unlike the Bantu policy of the South African government, the autonomy arrangements in the West Bank were fully voluntary, arrived at by negotiation between the state of Israel and the internationally recognized “sole representative” of the Palestinian people, and achieved without prejudice to the Arab citizens of Israel. No Israeli-Arab citizens were forced to become residents or citizens of the Palestinian Authority; indeed, in the wake of the Oslo Accords, large numbers of Palestinian residents of the West Bank moved to Israel, many assuming Israeli citizenship. And unlike the Bantu policy, the Oslo Accords were internationally endorsed.

Under the Oslo Accords, and as agreed to by the Palestinian leadership, Israel retains certain powers in the West Bank, primarily overarching security control and territorial jurisdiction over areas without significant Palestinian population. To be sure, Israel’s security control means that Palestinians involved in terrorist activities against Israelis, may be subject to the Israeli military court system. However, more than 95% of the Palestinian population is under the jurisdiction of the PA. Notably, Palestinians also have the ability to challenge Israeli policies directly to the Israeli Supreme Court without any standing or other justiciability limitations.

In Gaza, Israel lacks even the limited set of powers preserved for it in the West Bank. After an Israeli withdrawal in 2005 and a takeover by the Hamas terrorist organization in 2007, the Palestinian population of Gaza is solely governed by Hamas with the financial assistance of the West Bank Palestinian Authority. Since the 2005 withdrawal, Israel lacks even a physical presence within Gaza.[9]
Legal Prohibition of Apartheid

There is no accepted definition of apartheid in international law. While there are several treaty definitions, they are controversial, and do not legally bind Israel which is not a state party to those treaties. Moreover, while South African apartheid was widely viewed as illegal under international law, in no other case has a country ever been found by any tribunal applying international law to have been engaged in apartheid.
Customary Law

The customary law of apartheid—the only law that can bind Israel aside from the specific treaties to which it is part—is based on international practice regarding apartheid. Racial discrimination is, of course, morally abhorrent, but it is common knowledge that there are few if any human societies that can rightly claim to be completely free of this scourge. The mere presence within a society of racists or even acts of racial discrimination does not, of itself, establish that a state is engaging in apartheid. Indeed, if such acts rendered a state apartheid, every country in the world would be so labeled.

Likewise, it is clear that the mere drawing of distinctions between citizens and non-citizens, or offering preferences in immigration to some groups, or accommodating cultural differences by law, do not rise to the level of apartheid without again making every country in the world an apartheid state.

Indeed, since the only internationally recognized case of apartheid was in South Africa, the customary law of apartheid is based on those practices that were unique to South Africa under its apartheid regime. Since Israel does not share these practices, it cannot be defined as an apartheid state under international law. Importantly, there are several states in the world, most notably those states responsible for the “Zionism is racism” campaign, whose laws and practices are much closer to apartheid South Africa.
Treaty Law


Article 3 of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) states:

States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

The ICERD does not provide a definition of “apartheid” but the chapeau of the treaty refers to apartheid as “governmental policies based on racial superiority or hatred.”

Importantly, Article 1.2 of the treaty states that it “shall not apply to distinctions, exclusions, restrictions or preferences made by a State party to this Convention between citizens and non-citizens.”

ICERD Article 1.3 mandates that it shall not “be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”

Article 1.4 allows for “special measures” to be taken for the purpose of “advancement of certain racial or ethnic groups...requiring such protection as may be necessary in order to ensure... equal enjoyment or exercise of human rights and fundamental freedoms.” Such measures are not considered “racial discrimination.”

In Article 5b, State parties undertake to “guarantee” the right of “security of person and protection...against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.”

Israel has ratified the ICERD and participates in the periodic review process under the auspices of the UN Committee on the Elimination of Racial Discrimination.

Apartheid Convention

In the 1970s, the Soviet Union, backed by the Islamic bloc and the non-aligned movement, drafted the International Convention on the Suppression and Punishment of the Crime of Apartheid. This instrument attempted to define apartheid so broadly as to apply to all Western states:
For the purpose of the present Convention, the term ‘the crime of apartheid’, which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following 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:[10]

As a result of the politicization of this treaty as a Cold War tactic by the Soviet Union, no Western governments have become a party to it. Indeed, there were attempts to tie this treaty to the UN General Assembly “Zionism is racism” declaration.[11] Israel, therefore, is obviously not a party to the treaty.

Rome Statute

The treaty for the International Criminal Court (Rome Statute) also addresses apartheid and defines it as a “crime against humanity”:
(h) ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, 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;[12]

“Inhumane acts” are described as those “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” including “extermination,” “enslavement,” “deportation,” “torture” and “sexual slavery.”

Again, due to the politicization injected into the process by the Organization of the Islamic Conference and the Arab League,[13] Israel is not a party to the Rome Statute; therefore, it is not legally binding upon Israel.

Incidentally, there have been no prosecutions for apartheid before the International Criminal Court, notwithstanding a number of prosecutions of crimes against humanity in Darfur.
NGOs Manufacture Charges of Apartheid to Advance Political Goals

Despite the manifest differences between the one legally acknowledged apartheid state—South Africa—and Israel, and the absence of any Israeli legal regime based on systematic “racial superiority or hatred” or “domination by one racial group over another,” several NGOs claiming to promote human rights or humanitarian objectives falsely accuse Israel of apartheid. These charges take several forms, including: 1) gratuitous use of apartheid rhetoric; 2) characterizing the Arab-Israeli conflict as motivated by alleged Jewish race-hatred of Arabs, rather than one based on competing national and territorial claims, while also disregarding the role of Arab bigotry; 3) ignoring the context of terror; 4) claiming all alleged violations of human rights and humanitarian law rise to the level of “apartheid,” albeit only if committed by Israel; 5) hypocritically accusing Israel of “apartheid” while actively participating in the political process and enjoying the benefits conferred by the state; and 6) ignoring practices in Arab and Muslim countries that more closely resemble apartheid South Africa.

Rather than being based on principles of universal human rights and international law, many of these NGO claims and legal arguments originate with the PLO’s Negotiations Affairs Department developed for propaganda purposes.

A significant portion of the organizations involved in the exploitation of apartheid rhetoric receive substantial funding from the European Union, European governments, the Ford Foundation, and George Soros’ Open Society Institute.

Many of the NGOs invoking apartheid rhetoric also receive substantial funding from the New Israel Fund (examples below). Such funding is clearly inconsistent with a March 2010 statement by NIF CEO Daniel Sokatch, claiming that NIF “deeply disagree[s] with the use of ‘apartheid’ in the Israeli context. It is a historically inaccurate and inflammatory term that serves only to demonize Israel and alienate a majority of Jews around the world, including those who care deeply about issues of democracy, human rights, social justice and peace.” NGO Monitor reiterates the urgent need for NIF to establish red lines regarding its funding practices and to implement them immediately.

1. Gratuitous use of apartheid rhetoric

Former South African dissident Benjamin Pogrund has remarked that the term “apartheid” is used “because it comes easily to hand: it is a lazy label for the complexities of the Middle East conflict.” Many NGOs employ apartheid rhetoric in order to create an association between the Jewish state and the apartheid regime in South Africa in order to promote ideological agendas, to bolster economic sanctions campaigns directed against Israel (BDS), or even to lead to the dismantling of the state.

The same process is seen in the exploitation of international legal terminology such as “ethnic cleansing,” “genocide,” or “crimes against humanity,” and in “lawfare” cases where lawsuits are filed against Israelis for their PR value and to link the concept of “war crimes” with Israel.


* B’Tselem (funded by New Israel Fund, Norway, EU, Netherlands, Denmark)

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