Reflections on the Russell Tribunal on Palestine Session in South Africa
Realizing that the objective is to overcome ‘silence,’ the RToP was greatly helped by the publication of a slanderous attack on the prospective undertaking in the pages of the New York Times by the notable South African public figure Richard Goldstone (“Israel and the Apartheid Slander,” October 31, 2011). Never before in the more than four decades of such proceedings had an influential media venue in the West stooped to take notice of such happenings prior to their occurrence. Not only did Goldstone call global attention to RToP, but he created a platform in the most august media outlet in the West for response that was used to advantage by John Dugard, another South African jurist of global stature with special expert credentials as to conditions in Palestine, as well as to the experience of apartheid in South Africa. The Goldstone attack suggests that it sometimes better to have enemies than friends!
In the article, almost ludicrously Goldstone declared “In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute. ‘Inhumane acts … committed in the context of an institutionalized regime of systematic oppression and discrimination…’” Really! The list of discriminatory laws, the dual administration of settlements and Palestinians, the checkpoint treatment of Palestinians, the settler only roads, the non-protection of Palestinians living under occupation, the midnight abusive arrests of children certainly suggests a pattern of inhuman acts even to uninformed minds!
Without naming the panel of assessors, among whom were a death camp survivor and French diplomat, Stephane Hessel; a former member of Mandela’s cabinet, Ronald Kasrils; a Nobel Peace Prize Laureate from Northern Ireland, Mairead Maguire; a world renowned author, Alice Walker; a distinguished English barrister, Michael Mansfield, QC; and a former American congresswoman, Cynthia McKinney. Goldstone simply dismisses these distinguished personalities as “critics whose harsh views of Israel are well known.” The question, of course, is not whether these outstanding personalities have strong opinions on the matter at issue, but whether they deserve our trust based on their reputation for bearing witness truthfully and effectively. (For insightful interviews by Hanan Chehata with these leading RToP participants see the Middle East Monitor website.)
RToP in South Africa: Why? Why not?
The RToP chose South Africa as the site for this session on apartheid quite obviously to claim continuity with the universally condemned racist regime that governed the country until 1994. This continuity with the past was strongly reinforced by having Archbishop Emeritus Desmond Tutu, renowned opponent of apartheid in South Africa and someone who early on had compared Israeli treatment of Palestinians with apartheid South Africa, deliver an opening address at the session in Cape Town. This lineage was further reinforced by the presence of the former South Aftican cabinet member Ronald Kastrils, a Jewish member of the RToP panel, as well as receiving testimony from John Dugard, the world respected South African expert familiar with the both realities who had been a prominent opponent of apartheid at home as well as UN Human Rights Council Special Rapporteur for Occupied Palestine in which role he pronounced upon the occupation as an instance of the international crime of apartheid.
But there was also some cost paid for emphasizing this link to South Africa, which was the only real basis for Goldstone’s rant directed at RToP. Goldstone called the comparison “an unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations.” In effect, it allows the misleading argument to be made that since there are significant dissimilarities between Israeli treatment of the Palestinians and the South African racist regime the allegation against Israel would seem to rest on the credibility of the comparison. As should be understood by people of good will by now, the apartheid experience in South Africa gave rise to the formulation of an international crime of apartheid as specified in the 1973 International Convention and included in the 2002 Rome Treaty establishing the International Criminal Court, but it does not delimit future occurrences of the crime of apartheid. In this latter legal instrument, apartheid is set forth as one of eleven types of ‘crimes against humanity’ in Article 7(1)(j) of the treaty without any reference to the South African antecedent set of conditions.
The Crime of Apartheid
The most controversial, and at the same time far reaching feature, of the RToP finding was to conclude that Israeli responsibility for establishing an apartheid regime applied not only to Palestinians living under occupation, but also to the Palestinians minority living with discriminatory regulations in Israel and to the Palestinian diaspora consisting of 4-5 million refugees and exiles. Seen in isolation it seems like an unconvincing extension of the meaning of apartheid, even if separated from its South African connection, to consider Palestinian citizens of Israel, even if victims of severe and humbling discrimination, as living under an apartheid regime, or even more so to view diaspora Palestinians in this manner. But there is moral and psychopolitical weight to the unanimous view of the RToP jurors that the core right of self-determination applies to the Palestinian people as a whole, including those not living under direct Israeli military control. It challenges various Israeli efforts to split the Palestinian people, once a unity prior to the establishment of Israel, into a series of fragmentary realities, pitting against one another. The radical fragmentation of the West Bank, with its hundreds of checkpoints and restrictions on mobility and access, is a metaphor for this wider Israeli policy of undermining Palestinian identity as a sequel to Palestinian dispossession associated with the nakba, conceived of as an ongoing process rather than an event frozen in time.
The RToP divides its rationale for finding guilty of committing the crime of apartheid into three main parts: (1) race as defining identity in Israel/Palestine relations (tribunal agrees that race in the international definition of the crime should be interpreted broadly to include ethnic and national character); (2) inhuman acts (specified in relation to Israeli treatment of Palestinians, as integral to the crime, particularly “colonization and appropriation of Palestinian land” and coercive fragmentation of the Palestinian community in “different physical spaces”; (3) a systematic and institutionalized regime as pervading the subjugation of the Palestinian people (preferential treatment of Jews, dual legal arrangements, restrictions on residence and mobility, deportations and house demolitions are elements in what the tribunal calls “Israel’s institutionalized regime of domination.” (See Victor Kattan’s excellent detailed analysis of the RToP finding of apartheid in his “The Russell Tribunal on Palestine and the Question of Palestine,” al-shabaka brief, November 23, 2011.)
The importance of the RToP session is to strengthen the civil society case against the Israeli treatment of the Palestinian people. As such, it adds a certain quality of gravitas to such international initiatives as the Freedom Flotilla and the BDS (boycott, divestment, and sanctions) campaign. Thanks to Goldstone, and to the organizational skills of the tribunal, there has also been a certain media visibility for RToP that has been absent in most comparable undertakings including the Kuala Lumpur proceedings against George W. Bush and Tony Blair discussed earlier. In this sense, the crime of silence that disturbed Bertrand Russell during the Vietnam War is still being committed, but it has been to a degree mitigated by the legacy he continues to inspire.
Indirectly, also, the very existence of RToP should encourage states to be more active in exerting their own authority to implement individual accountability under international criminal law via reliance on universal jurisdiction. At present, the impulse to reassert such national agency to supplement weak international enforcement mechanisms has been weakened by a geopolitical backlash led by the United States in the aftermath of the Spanish indictment and British detention of Augusto Pinochet a little more than a decade ago. This struggle between the vitalization of international criminal law and geopolitical actors demanding impunity will help determine whether global governance is primarily a regime of power or becomes over time due to the struggles of the peoples of the world, a regime of just law.
Finally, we notice that the jurisprudence of conscience, that is, applications of law without punitive capacity in relation to alleged violators, is maturing in two parallel directions. The first illustrated by the Russell legacy, including at the RToP inquiry into Israeli apartheid, rests its methodology on law established by testimony of legal experts and findings of individuals whose credibility depends primarily on their moral authority and cultural stature, a jury of conscience that deserves our trust and respect. The second illustrated to a degree by the Kuala Lumpur proceedings, seeking to replicate the behavior of courts under the informal auspices of civil society, and seeks to base its credibility on a pervasive legal framework, including the makeup of the panel making findings and recommendations and extending to providing a defense on behalf of the government and individuals charged with criminal behavior. Hopefully, the fourth and final session of RToP, to be held in 2012 in the United States, will in addition to providing an overview of the allegations against Israel, also offer guidance to those who see a continuing need for a jurisprudence of conscience as a critical arena of struggle in the ongoing quest for humane global governance.