An Apartheid of Hearts, Minds and International Law

Israel doesn’t have to precisely replicate South Africa to conform to the international definition of an apartheid regime. It’s time for those who object to the Israel apartheid analogy to understand this.

Roy Isacowitz
Roy Isacowitz
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Roy Isacowitz
Roy Isacowitz

Shuki Friedman, in his opinion piece published Tuesday (‘Between inequality and apartheid’), referred to the 2002 Rome Statute to back up his contention that the analogy between Israel and apartheid is “a travesty of reality and history.” Given that the statute is readily available online, perhaps he should have been a little more careful in his references to it.

The gist of Friedman’s argument was that apartheid – both in practice and as defined by the statute – must precisely replicate the racial discrimination and oppression that existed in South Africa prior to 1994 and must have a legal framework, i.e. it must be enacted in law. His summary of the Rome Statute reads: “The crime of apartheid is seen to be committed when there is an institutionalized goal and action taken to discriminate and oppress another people. This is not the case in Israel, nor is it the case in Judea and Samaria.”

The problem is that his summary of the statute is tendentious and he’s wrong on both counts. Article 7 of the statute, which is the one quoted by Friedman, defines the crime of apartheid as 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.”

In other words, it’s not the goal and action that need to be institutionalized, as Friedman maintains, but the regime in which they occur. The goals and actions can be either legislated or ad hoc, but they must be part of an institutionalized regime - one that has become commonplace or mainstream and arguably (depending on definition) one that is lawfully constituted. I won’t speculate as to what motivated Friedman to tamper with the wording of the statute, but few would argue against the characterization of Israel’s 46-year-long military control over the occupied West Bank is both commonplace and lawful (in terms of Israel’s own legal definitions).

The 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA), which preceded the Rome Statute, defined apartheid as “inhumane 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.” (If Friedman wants to quibble over the term “racial,” he should take a look at his Israeli ID card, which conflates nationality with race and religion.)

Nowhere in either the Rome Statute or the ICSPCA is there a requirement that apartheid be enshrined in a legislative framework. Similarly, both expressly define it as a crime not limited by the South African experience. (The ICSPCA speaks of “similar policies and practices of racial segregation and discrimination as practiced in southern Africa.”) In other words, discrimination does not need to be implemented exactly as was done in South Africa to qualify as apartheid.

All of which means that Friedman’s argument is nonsense. The etymology of the word “apartheid” in Afrikaner nationalism is of absolutely no relevance. International convention has removed apartheid from the South African context and established it as a crime in its own right. Any discriminatory and oppressive policies from any regime can legitimately be termed apartheid if they meet the definitions of the ICSPCA and the Rome Statute.

It’s about time that those who object to the Israel-apartheid analogy understood that South Africa is not part of the equation; at most it acts as a reference point. It may feel good to go on about the park benches in South Africa that were reserved for whites only or the bloated corpus of discriminatory legislation under the apartheid regime but they have no relevance. Apartheid today has an internationally endorsed definition, which does not include South Africa and does not require legislation. Israel, and all other regimes, are judged according to that benchmark.

A word for Shuki Friedman from one who grew up under apartheid and experienced it up close and personal: Definitions and legalities are only part of the story. The real apartheid in South Africa was the apartheid of the heart and the mind – the apartheid mentality. True apartheid is the elevation of one group above another on the basis of race, religion, tribe or nationality and the consequent arrogation of rights and freedoms that are denied the other.

Friedman may not discern that mentality in Israel, but I see it everywhere – in our apathy to what is happening in the territories, the ease with which we absolve ourselves of responsibility and our almost total lack of empathy for the other, if he or she is not Jewish. The discriminatory legislation that for Friedman is the crux of apartheid (incorrectly, of course) has begun creeping into the Knesset under the Netanyahu administration, but that is not where apartheid begins. It begins in the hearts and minds of people.

U.S. Supreme Court Justice Potter Stewart once said that pornography was difficult to define, “but I know it when I see it.” I know apartheid when I see it – and I see it sprouting here.

Roy Isacowitz is a writer and marketer living in Tel Aviv. He spent many years working for the Israeli and foreign media.

Eight men, among them anti-apartheid leader Nelson Mandela, sentenced to life imprisonment, leaving the Palace of Justice in Pretoria with their fists raised in defiance, June 16, 1964.Credit: AFP

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