This Week in Palestine, Virginia Tilley - Occupation, Colonialism, Apartheid (2009)

Sherif Fam: In May 2009, the results of a 15-month study commissioned by the Middle East Project of the Human Sciences Research Council at Cape Town, South Africa, were published in a report entitled, Occupation, Colonialism, A reassessment of Israel's practices in the occupied Palestinian territories under international law. The research study over a 15-month period by a team of international scholars is arguably the most thorough and most authoritative investigation into Israel's practice of apartheid in the occupied Palestinian territories. The study was coordinated by Dr. Virginia Tilley, Chief Research Specialist at the Democracy and Governance Division of the Human Sciences Research Council at Cape Town. We have the privilege of discussing the report's findings and their implications with her today. She joins us now by telephone from Cape Town. Good afternoon, Dr. Virginia Tilley, and thank you for being our guest today.

Virginia Tilley: Good afternoon. It's a pleasure to be here.

Sherif Fam: First, let me congratulate you on the seminal study you coordinated and to which you were a principal contributor. It will undoubtedly become the primary reference in any discussion of apartheid. The study focused on the occupied territories and not on apartheid in Israel proper, right?

Virginia Tilley: Yes, that's true. We took our mandate to go forward with the question from the report of John Dugard, then Special Rapporteur on the Occupied Territories for the Human Rights Council of the United Nations. So he was acting as Special Rapporteur for the Occupied Territories, and therefore we took up his question in regard to the Occupied Territories. That's not to say that someone else couldn't come along and do a study of whether or not the Apartheid Convention applies to Israel's practices in other parts of the territories under Israel's control, but our study was confined to the West Bank, East Jerusalem, and Gaza Strip.

Sherif Fam: Let me mention for the benefit of our listeners that the entire report can be downloaded at the website www.hsrc.ac.za forward slash d as in Donald G dot p h t m l. Could you share with us the major findings of the study and how it was received at the recent Cape Town conference on re-envisioning Israel-Palestine?

Virginia Tilley: Well, basically the study was simple in conception, but it proved very complicated to do. We wanted to get serious about this question of apartheid and colonialism. Both terms are thrown around a good deal in regard to the Israeli-Palestinian conflict in rhetoric and in polemics on the conflict. But it was becoming more serious, especially when John Dugard raised it in his UN report. It was becoming more important to know whether or not we are really talking about apartheid here rather than just a kind of an accusation or an insult, the way the term has often been used. So we put together an international law team to go to international law, which has formulations of these ideas. and ask, well, what is colonialism under international law? What does it mean technically as a set of violations of people's rights? And what is apartheid? And then look at what Israel's doing in the occupied territories and see if it matches up. So in principle, it was simple. We thought it would be about a six-month study maybe, 100 pages of checklist kind of study. And it didn't turn into that at all. It became very complicated. There's many international law questions that come into play around something like this. When you're talking about a territory that's under belligerent occupation, well, how does human rights law apply? That had to be answered. Israel has all kinds of reasons for saying the territories aren't occupied. We had to go through all of those. Some Israeli scholars have said that if an occupation lasts a very long time, the way this one has, the rules necessarily change because you have to account for demographic change and, you know, altered economic conditions and this kind of thing so that Israel is no longer bound by the normal rules. Well, we had to look at that. We found that that argument didn't hold up, by the way. But there were many theoretical questions that we had to address, and it ended up taking 15 months instead of six, and it's a 300-page study instead of 100. And it's really quite an extraordinary document. It's an academic study in international law with a good deal of international law theory in it, and about half of the bulk of that is looking at the question of apartheid. And we found that when we looked at the definition of colonialism in international law, and we look at the definition of apartheid in international law, we find that what Israel is doing fits the definitions, which is quite extraordinary. This hasn't been done before. There hasn't been a serious study to see if anyone actually outside of southern Africa has ever practiced apartheid. So this is the first time this has been done. And it should stand as a landmark study. We have posted it on the website for comment. And we hope that scholars and professionals will take a look at it and offer arguments and see if there's any flaws in it that we should correct. But we're confident in the findings. The team was a very diverse team of international law scholars. And we had 100% consensus on the findings. There was no doubt in anyone's mind that what Israel is doing is both colonialism and apartheid, according to international law.

Sherif Fam: I noticed that the study looked at each and every article of the Convention on Apartheid and each and every prohibition of the Convention. I was really quite surprised by the thoroughness of it. I believe you have found that Israel was in breach of virtually every single prohibition provided in the Convention.

Virginia Tilley: Almost. There is a provision in the Convention. I don't want to get too technical about this now, but there are six different kinds of acts that fit the definition, provided in the definition of apartheid in the Apartheid Convention. which has the long title of the International Convention for the Suppression and Punishment of the Crime of Apartheid. And it's composed of two parts. One is this kind of overarching definition that you read a few minutes ago, that it has to do with creating a system of domination by one racial group over another racial group. And that the crime of apartheid shall be understood as the following acts that are for the purpose of doing that. And there are six parts to that. One of those was the creation of living conditions designed to cause the physical destruction of a group in whole or in part. And this is, I think, what you were thinking of when you thought it reminded you of Gaza. And there has been debate about whether what Israel has been doing in Gaza, particularly in January, but also through the siege, fits the definition of genocide. A very important study for the Arab League found that it does not fit the definition of genocide, and we also concurred that it does not fit that definition. So that part of the Apartheid Convention we didn't think applied. But on the other hand, that part of the Apartheid Convention didn't apply in South Africa either. It's kind of an unusual... part of the definition because it didn't take its inspiration from South African practices either. The way the definition is structured, it says that the crime of apartheid shall be acts including, like those practiced in South Africa and including the following. So it doesn't mean that all of the acts have to be practiced in order for a state to be guilty of practicing apartheid. What it means is that there's a system in place that would be doing these kinds of things. And particularly depriving people of essential freedoms, such as the freedom of movement, the freedom of expression, the freedom to leave and return to their country, the right to nationality or citizenship, in order to dominate them on racial grounds. And the other part is segregation, the forced segregation of groups on the basis of race, such as by putting them into geographic cantons or reserves, the convention calls it reserves, to keep people apart. And all of this fit, graphically fit. We had to get quite serious also about whether this is a racial conflict or whether the groups involved, whether Jews and Palestinians in this setting, constitute racial groups. And that was a little harder for us because international law doesn't deal with questions like that. It's not very good on questions like who was a racial group. So we had to go to sociology and other disciplines to deal with that. But we found that the way Jewishness is constructed by Israel in the local setting and the way Palestinian-ness is constructed as a corollary to that They are operating as racial groups in this setting, even though, of course, we don't say today Jews are a race or Palestinians are a race. In international law, racial discrimination has a certain meaning. Like when you talk about anti-Semitism, for example, we assume that's a form of racial discrimination, even though Jews are not a race. So international law has a way of dealing with these kinds of things that include racism. ethnicity and descent, concepts of descent and national origin and so forth. What matters is that groups are understood to get their identity through generations, that they're acquired at birth, that they become Jewish because they have a Jewish mother or because their parents are Palestinian. And this is the key thing because this is what kind of creates racial logics where you go out and kill babies and so forth because you perceive everyone, you perceive the identity as innate to people. It's not something they acquire as an ideology or as a political position. They're just born with it. So we found that that idea that the identity is imbued in people, it's perceived as being acquired at birth, definitely matters here, particularly for Jews, and that, in fact, most Zionist doctrines rests on the idea that Jews are a descent group and that they have rights in Palestine by virtue of being descended from Jewish populations there several thousand years ago and are, in fact, the indigenous people of Palestine and so forth. We all probably know this. People listening to your show probably know these arguments. So we found that they are racial groups in that sense, and then all these acts that everyone knows, the commonly documented acts such as restrictions on freedom of movement, restrictions on freedom of expression, then fit. They become part of this package, this system of domination. on grounds of race, and therefore it's apartheid. So it's an extraordinary finding. It should really impact debate on the conflict, and we hope that it will receive the attention we think it deserves.

Sherif Fam: It certainly deserves quite a bit of attention. I might ask this question, which has often been posed, and that is that there are differences in the way that Israel governs the occupied Palestinian territories and the South African experience. That point is always raised. There are differences. Are these differences of any material imports? And one can commit a crime in various ways, each differing in detail, but that doesn't reduce the meaning of the crime.

Virginia Tilley: Well, there's a couple of answers to that. One is, yes, the law that matters is the convention, not what happened in South Africa. What South Africa did, what apartheid South Africa did, was the inspiration for the Convention Against Apartheid. But the Convention was drafted to provide a universal instrument. In other words, you should be able to go off to Burma or anywhere else and see if what they're doing is apartheid. And the benchmark for whether it's apartheid is not what exactly South Africa did, but again, the formula of the definition in the Convention. Now, Israel doesn't do it the way South Africa did it, but we found that what they're doing fits the definition in the convention. So that's the first answer. The second answer is that it is more complicated because Israel has Palestinian citizens of Israel who do enjoy a certain body of civil freedoms. They enjoy freedom of movement, freedom of expression, and so forth. So they're treated differently, and that raises the question of whether Israel is therefore not practicing apartheid because it accords Palestinians inside the Green Line a certain body of rights. We didn't actually ask that question in the study. So when I talk about it on your show, I'm talking about it from my own analysis so that this isn't something we opened up. But I would suggest that there would be a couple of things that needed to be looked at there. One is whether how Israel does discriminate against Palestinians inside the Green Line, which of course Israel does through various laws. Jews have more rights than Palestinians, especially to land and other privileges. If that becomes part of a package, In other words, Israel accords Palestinians inside the Green Line certain rights because that actually positions Israel to deny those rights to Palestinians in the occupied territories in such a way as to ensure Jewish statehood and the domination of Jews over Palestinians in the entire territory. It's sort of a variation. We can look to South Africa and see this kind of thing in the sense that South Africa did accord mixed-race people, which they called colored people, and Indians. Some people might remember that Mahatma Gandhi was in South Africa in his early years and fighting for Indian rights against discrimination. But under apartheid that was formalized and Indians had no rights. But the coloreds and Indians had voting rights at certain times under apartheid. They were actually given certain kinds of political representation as part of excluding black people. So when we come closer to these cases, we see these complexities, and there's certainly more work to be done on this. But I don't think the fact that Israel accords Palestinian citizens some rights absolves Israel from apartheid practices in the occupied territories. That doesn't follow. The second thing, if I can just take another minute, people often forget that in South Africa, the government imposed apartheid within the country of South Africa, but it also imposed it on the neighboring country of Namibia, which was then called Southwest Africa. And it forcibly divided black people from white people. It created homelands for the black people in Namibia in which they were forced to live. It gave superior rights to white people in Namibia. And the International Court of Justice and the United Nations General Assembly all rejected this, saying that South Africa was imposing apartheid in Namibia and it had to stop and it had to get out of Namibia. It had to withdraw its occupation of Namibia, partly because it was imposing apartheid there and that that was violating the rights of the people. And this is a direct parallel to Israel in the occupied territories. It doesn't really matter what Israel is doing inside its own country. If it's imposing apartheid in the occupied territories, it is obliged to immediately withdraw. The occupation is therefore illegal on those grounds. And Israel has no right to retain those territories. I mean, this argument could be made. What needs to happen now, this is an academic study. It doesn't have any force of law, of course. But what we hope will happen is that this study will provide the grounds for someone to take this case to the International Court of Justice and ask the ICJ for an advisory opinion. This was the original suggestion of John Dugard that we needed an ICJ opinion on this and we hope that this study will support such a case. And then we'll know. Then we'll have an authoritative ruling. which would also include advising the international community of what they should do about it, because the Convention Against Apartheid does call for international responsibility.

Sherif Fam: I understand Professor Degas' view that the International Court might issue an advisory ruling, But its advisory ruling on the wall didn't have any effect at all. And there are 107 states, I believe, that have ratified the Convention on Apartheid. What obligations or what duty do those states have regarding apartheid when practiced by a state?

Virginia Tilley: Well, you're touching on a couple of things here. First is the enforcement of international law, and I think many people listening to your show are probably rightly cynical about that in regard to Israel because there's been innumerable resolutions calling for Israel to do this or that, and Israel has ignored most of them, and no one seems to care or impose any sanctions on Israel as a consequence. So yes, that's a problem. I would say, though, that a finding of apartheid is different from finding that the wall was illegal. Finding the wall was legal is just one action. It's an action of Israel in regard to its occupation. A finding of apartheid would be implicating the entire regime, the entire regime of control that Israel is imposing. And it would be a decision that would go straight at the very character of the occupation. So this would be more grave, much more grave. The consequences under the convention would be that the international community is obliged not to assist Israel in committing illegal acts. So if it's found to be doing colonialism and apartheid, then it's the responsibility of every state that has – in fact, it goes beyond who's signed on to these things. The international law at this point becomes universal. There are universal obligations not to support Israel or facilitate its imposing apartheid on the Palestinian territories. So there would be exactly how that should manifest, what states would be obliged to do would have to be spelled out, but we would assume that trade would have to stop, arms deals would have to stop, any economic relations that could be seen to be supporting Israel's actions in the occupied territories would have to stop. and that the international community would have to combine energies to make Israel stop doing those things, and that would probably, it could take the form of an international sanctions program very much like was imposed on South Africa, boycott, divestment, and sanctions by not just civil society and NGOs, but by states and state governments and by the United Nations. So it could be quite serious. And we hope that the ICJ will take a look at this question, that someone will bring the case. It's a little hard to bring the case. That requires some politics in the United Nations to make that happen. But the first step is to show that this question of apartheid in Israel is no longer just an insult or a casual aside or spoken in anger, it's a technical finding, a scholarly finding, and it requires much more serious consideration by the professional community.

Sherif Fam: Was the title of the Cape Town Conference, Re-envisioning Israel-Palestine, inspired by the study?

Virginia Tilley: No, that was inspired by a much broader range of activities that we've been doing for the last couple of years. There has been a program here that has been supported by the South African Department of Foreign Affairs where we were consulting with Palestinian and other scholars about a whole range of questions to do with the conflict. The political economy, the politics, the identity politics and so forth. But there is one consensus that has come out of all of that analysis and that is that the current peace process is absolutely futile. worse than futile. It has led to greater violence and more suffering for people and that there's something profoundly wrong with it. A process that has failed consistently to make any progress for 40 years is clearly something that is deeply flawed and the question is why? What's wrong with it? The usual answers are well the United States hasn't acted strongly enough and if they did it would all be okay or if only the Palestinians could get their act together then they would be able to make it be okay. But the premise of the conference in Cape Town was that basically the two-state solution, the whole Oslo roadmap Annapolis process has been leading in the wrong direction that it's leading to a Bantustan state for the Palestinians and that this is obviously a formula for violence and instability just as it was in South Africa and therefore it's not going to work and in order to avoid a very grim future of regional violence and instability It's time to look as candidly and as frankly and freshly as possible at the facts on the ground and the actual conditions that are prevailing there, exactly what Israel is doing, exactly what's going on with the Ramallah Palestinian Authority, and to possibly re-envision the entire thing. Now, I think your listeners probably are picking up that this is very much around the two-state, one-state debate. And that was on the table sort of indirectly during the entire Cape Town Conference. And there wasn't any firm outcome of that. But I think it is increasingly consensus among people who've been working on the conflict that two-state solution is not only not working, it's actually a trap. It's led to what happened in Gaza, for example. And that the way out of the trap is to basically dissolve the barriers between people rather than trying to redraw them, to redraw divisions, new partition, two states somewhere. That's the trap. And that in South Africa, they just insisted that all of those barriers be dissolved and eliminated and a unitary state be developed. based on universal democratic principles. And I think that is likely, my analysis is that that is the only way to go forward. But as the host of the conference, I had to be careful because, you know, I could be wrong and maybe, you know, be proved wrong in the long run. So we had to, you know, try to be scientists and look at the material as honestly as we could. But that was the purpose of re-envisioning Israel-Palestine.

Sherif Fam: That leads me to what I would particularly like to explore with you, Dr. Tilley, and that is what did the conference offer in the way of a new vision, and what is your view of how the conference and how your work and discussions could inform the global BDS movement and the activist community in general?

Virginia Tilley: Well, for one thing, we didn't come out at the end of the conference with some statement. That wasn't the goal of the conference, to have some unified position. We wanted to share across disciplines what the evidence is, sociology, history, geography, economics, and so that people could know more at the end. They could see the big picture. In my analysis, what the apartheid finding showed, and that was a big part of the conference was to share that analysis, was that the international BDS campaign is important. likely to run out of steam. Not die or stop, but I don't mean it that way. I mean, I think its growth potential is probably limited as long as it stays with the two-state paradigm. People might not get that or see the connection, but this is basically it. If you are dividing the land up and one side has all the power and the other side has none, you're going to get a ban to stand state. And in this case, what you are fighting for is Palestinian self-determination within whatever little bits of land can be obtained for a Palestinian state.

Sherif Fam: The South African experience indicated that that was a disaster.

Virginia Tilley: All it does is create an elite of people who look forward to the perks they can get from running a little state like that. It doesn't strengthen real democracy movement because real democracy is not in the cards with that future. So basically the whole goal becomes a Palestinian state for the sake of having a Palestinian state. Now in the South African setting there were several very important ethnic groups that were sometimes called ethnic national groups like Zulus and the Xhosa and the Tswana. And in apartheid, white government imposed on these groups homelands. They said, well, each one of you is going to have self-determination. You all have the right self-determination. You're going to have it in this homeland, and we are going to tell you where that homeland is, and we're going to create it over here in these little parcels of land, and it was all chopped up very much the way the West Bank is chopped up today. And that will be your homeland and where you will have self-determination, and we, the white people, will have our self-determination in the rest of the country. If the Zulus and the Tswana and the Suthu and the other people, black African peoples of South Africa, had accepted that and had said, okay, but we want a better state, we want a bigger state, we want a contiguous state for ourselves, in the name of Zulu self-determination and Tswana self-determination, I am certain that the international community, the world, would not have gotten up and opposed apartheid the way it did. I just can't imagine. I was in the States working on the anti-apartheid struggle in the 80s, and I can't imagine that Zulu self-determination would have won the day with the international boycott campaign. The reason the international boycott campaign won and prevailed was because South Africa was making a universal claim on the conscience of everyone, which was racism is bad. Racism is bad. Oppression of black people is particularly offensive because of the history of it and we oppose that in our own countries and we oppose it in our lives and we oppose it in South Africa and this is personal. and to have a state stand up and say we're going to do it officially is intolerable. We're not going to allow any state in the world to stand up and say we're going to oppress black people in the name of racism. We're not going to do that. That's how the Boycott Campaign gained global clout. That's how it moved from being more than a solidarity movement to being a United Nations General Assembly movement to being formal resolutions, formal policies, of the world. And I think the same thing, especially now that we've found that Israel is technically guilty of apartheid under international law, I think the same potential is there regarding Israel. But I don't believe that it's going to really kick into gear until the Palestinians make the same kind of universal claim on the world's conscience, that this is racism.

Sherif Fam: That's to make the moral case. Yeah.

Virginia Tilley: Yeah, but not just a moral case of, you know, poor Palestinians are being crushed by nasty Jewish Israelis. But racism is bad. Racism is intolerable. You can't have a state doing that kind of thing. It doesn't matter who it is, whether it's Jews or Afrikaners or Baha'is or anybody else. It doesn't matter who you are. You cannot do that. It's personal. It's universal. And once the Palestinians make that claim, I think the world will catch on. I think they will realize what kind of conflict this is, and I think the BDS campaign will then have a chance to grow exponentially. So that's what I hope we will start to see. This takes a lot of work. It takes a lot of work. It takes a lot of work for the Palestinians internally. They have to sort out their national identity to talk about a shared state in Palestine that would not be a Palestinian Arab state on the old PLO model. It would be a shared state with everyone there. That's tough. That's a tough thing.

Sherif Fam: And without American intervention.

Virginia Tilley: Well, you're never going to get rid of American intervention. You're never going to get rid of that. The United States is a giant power on the world stage. It's never going to stop being involved. What you have to do is change the terms of its involvement. You have to change the terms, the options that any president of the United States has before him or her. That there's a political environment in which the president of the United States can act. We might remember that the boycott campaign against South Africa, the United States was the last to sign on to that. The very last. And they only signed on when the Black Caucus signed. in the US Congress made President Reagan sign off to it. So we have to create options for the United States. We have to create a different... But I actually think that the biggest constituency for a one-state solution in Israel-Palestine is Jews. And this is absolutely counterintuitive, I know, because most Jews right now wouldn't even consider the possibility. But Olmert has been right. Former Prime Minister Olmert has been right about this, I think, that Jews, especially in the United States, liberal Jewish constituency, are assuming that Israel is a good place. It's a good country that's just been badly treated and an unfortunate geographic position and all the stuff has been forced on it and all of its own brutality is just a consequence of its bad luck and being set where it is. and even transgender Arabs and so forth. Once the liberal Jewish constituency begins to see Israel like South Africa, as a place that has thrown out its indigenous people and refused to allow them back, and now is refusing to allow them equal rights in the territory based on their identity that's understood as dissent, that's racism. And Olmert has been very anxious for years that this not happen. He's been saying the Palestinians must not turn this into an anti-apartheid struggle because that will be the end of the Jewish state, quote-unquote. And what he means by that is that Israel will lose its crucial constituency of support. But this is something that's very complicated for the solidarity community too because I think the solidarity community, and I hope I'm not overstating this, but I don't think I am, I think the solidarity community in Palestine has glued together a coalition of support with liberal Zionist Jews who are appalled by what Israel is doing in the occupied territories, but still think a Jewish state is a good idea. Not only a good idea, but a valued, treasured, important idea. And because they aren't ready to give that up, and because the solidarity movement doesn't want to lose their support, this whole question of the one-state, two-state debate has been shelved. The whole question of democracy and non-racial democracy has been shelved. It's just too hard.

Sherif Fam: We have just one more minute, Dr. Tilley.

Virginia Tilley: Oh, sorry, sorry.

Sherif Fam: No, no, that's fine. We have just one more minute. Any last thoughts?

Virginia Tilley: Well, I think that this has to not be shelved anymore. I think that our study gives people the groundwork, the support to undertake a serious internal conversation in the solidarity community about just what the goal is in Israel-Palestine, just what kind of future is sought. And once that consensus comes together on that, I think if consensus comes together that racism is a bad thing, that people have to live together, that it can be done, that colonialism is unacceptable, apartheid is unacceptable, that a unitary state is the only just solution, once they do that, they will inherit everything that came out of the South African struggle. They will inherit a global movement. And I think this could change quite quickly, much more quickly than people now anticipate. So this would be my future vision.

Sherif Fam: Thank you so much. We have to cut there. Thank you so much for being our guest today. It was a pleasure to have you with us.