Alex Kane: Hello, and welcome to On the Nose, the Jewish Currents podcast. I’m Alex Kane, a Senior Reporter at Jewish Currents and your host today. In landmark reports released over the past few years, the world’s leading human rights organizations, Amnesty International and Human Rights Watch, as well as prominent Israeli human rights group B’Tselem, have used the word “apartheid” to describe Israel’s control of Palestinian life and land for the first time. But as an article in our summer issue by international law scholars Noura Erakat and John Reynolds shows, Palestinians have long used the word apartheid to describe the conditions they live under. Erakat and Reynolds highlight the writings of a generation of Palestinian intellectuals who worked in the 1960s and 70s to identify Israel as a settler colonial state, meaning a state established by settlers who arrived with the intent to stay and supplant native sovereignty through violence, containment, and forced assimilation—not merely to rule, but to replace, as Erakat and Reynolds write. The Palestinian intellectuals and activists of the period understood apartheid as, in Erakat and Reynolds’s words, “an inevitable outcome of Israeli settler colonialism and a key ideological and legal institutional vehicle for its continuance.”
This understanding of apartheid is notably different from that of the human rights organizations. Their reports do not reference settler colonialism, but rather draw on international law to define apartheid as a crime against humanity in which inhuman acts are committed for the purpose of establishment and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them. Per the UN’s Apartheid Convention. Erakat and Reynolds argue that if we understand apartheid as a tool of settler colonialism, it appears to require the same remedies as other manifestations of colonial rule and foreign occupation: collective liberation and land restitution. In keeping with their more legalistic understandings of apartheid, on the other hand, the human rights organizations suggest that the solution is formal, legal equality in Israel/Palestine: the extension of equal rights to all who live in the land.
To discuss all of this and more. I’m delighted to welcome Noura Erakat, John Reynolds, and Omar Shakir. Noura is an Associate Professor in the Department of Africana Studies and the program in Criminal Justice at Rutgers, New Brunswick, and the author of Justice for Some: Law and the Question of Palestine. John teaches at the National University of Ireland, Maynooth. And as the author of Empire, Emergency and International Law. And Omar is the Israel and Palestine Director at Human Rights Watch and lead researcher and author of Human Rights Watch’s report on Israeli apartheid. Omar, Noura, and John, welcome to On the Nose.
So obviously, the term apartheid is at the heart of this conversation. And so, I want to begin with defining the term. So, could all three of you define what apartheid means?
Noura Erakat: At the most basic level, there’s the legal definition of apartheid as summarized in the 1973 Convention, declaring apartheid as a crime against humanity. It is a form of governance that uses different inhumane measures in order to maintain the dominance of one racial group over another, and it enumerates a non-exhaustive list of features. Significantly, in that definition and beyond, apartheid is a colonial form of government that maintains that colonial domination through a racial framework and is predicated on such things as the murder of civilians, forced displacement, land dispossession, ghettoization, and other features that are colonial in nature but that produce a racial subject and also is reflective of a racial regime.
Omar Shakir: I would just maybe add a couple of more words on the legal definition because, obviously, apartheid has a historical meaning coined in relation to particular events in southern Africa. It has a different meaning, maybe, comparatively or analytically, but as a legal term, I think it’s generally a stand-in for a particularly severe form of repression, of discriminatory repression, you might say. It’s also a crime against humanity, and as a crime, in essence, it refers to really severe abuses, or what are known as inhumane acts or inhuman acts, committed in the context of systematic oppression, or a regime of systematic oppression by one group over another, done with the intent to maintain that system. So if you think about it, like other crimes, there’s the act: inhumane acts; the context: systematic oppression; and the intent or state of mind, which is the intent to dominate.
John Reynolds: So the way I think about it and have thought about it in my work, to draw all of the elements that Nora and Omar have talked about there together, is to think about apartheid as being composed of three core pillars. One has to do with the racial differentiation and filtering that into an interracial hierarchy between the groups. The second is the grand apartheid ideas of conquest and fragmentation, so you have the colonization or conquest of territory, you fragment the territory according to different racial groups as well as fragmenting the population themselves, and the racialized groups being exploited and fragmented having their labor exploited in particular areas. And the third pillar, then, is that you have this overarching system of laws and political instruments to repress and manage and discipline the population. And so, where Omar is talking about it as an extreme or severe form of racial discrimination, I actually find it useful to think about it in the terms that the South African Communist Party talked about it, which was as colonialism of a special type. And so, it’s a kind of a mechanism and a derivative of colonialism that is a way of managing and subjugating the population.
AK: Noura and John, why did you feel motivated to write this piece, and how did you decide that the intellectual lineage of the term apartheid is important?
NE: John and I have been working together on a number of projects. Both of us are part of a lineage called Third World Approaches to International Law (TWAIL). So thinking about TWAIL and Palestine and that tradition, insofar as it had to do with the International Criminal Court, insofar as it had to do with the question of race. So it was quite natural for us that when the reports came out—which we were both very excited about. It’s a significant turning point and a break away from a particular kind of norm, a political norm. It became a natural point for us to then be able to use the work that we had been reading, reflecting upon, to then think about: What are these reports in this particular moment? What did they do to advance the way that we’re thinking? What were the gaps that were very evident, as far as we were concerned? And how does the Palestinian intellectual and advocacy tradition help to fill in those gaps? It was more of a conversation for us that we were having, and we’re hoping one that is building yet another scaffold for others to build upon further.
JR: Yeah, I mean, I think that there was obviously a moment in and around the end of 2020, through 2021, where a number of these reports came out. And there was obviously a discussion and a conversation happening, and we felt we had something to add to that. I mean, I think there was a sense that because Yesh Din and B’Tselem as leading Jewish Israeli organizations had spoken and had started talking about Israeli apartheid, that that clears the way for more people to stick their heads above the parapet that hadn’t previously felt confident to do so, which is obviously a positive development. But Palestinian scholars and thinkers have been referring to or naming the Israeli legal system, or the constitutional order in Israel since the 1960s, as an apartheid-type regime, but also Palestinian human rights organizations and human rights lawyers have been doing the same since the early 1980s. And so Al-Haq was the first Palestinian human rights organization, that was founded in 1979. And already in 1981, Raja Shehadeh, who was one of the founders, was writing about the similarities between elements of the Israeli legal system in the West Bank and the apartheid system at the time in South Africa. Jonathan Kuttab, who was another founder of Al-Haq, was speaking at the US Congress committees in 1985 about Israeli apartheid, and all the way through the 1990s, early 2000s, you had a deepening and developing set of reports and analysis coming from the Palestinian human rights organizations that were making similar arguments that it took a lot longer for others to get to.
And so we felt it was important to highlight that, not just for the politics of representation or politics of citation, but also to look at what were they actually saying, and what were they saying that was maybe a little bit different or more comprehensive than some element of what had come recently. And particularly, a lot of that was about the connection to settler colonialism and that analytical framework, the connection to anticolonial traditions in third-world thinking, and so on. I suppose the other element of this is that this all happens in overlap or around the time of the Unity Intifada last year, and you have these parallel conversations going on about unity and resistance and revolt amongst Palestinian communities, as well as taking this understanding of Israeli apartheid as not something that’s specific or contained within only the West Bank, or only one segment of the Palestinian territories, but that was operating across all of Historic Palestine, that was operating as a form of exclusion and control and discrimination against the refugees, as well.
AK: John and Nora referenced gaps in the human rights organizations’ reports on Israeli apartheid. Could you unpack what those gaps exactly are?
JR: So one element of it was, there was this narrative and this overtone, I think, particularly in the B’Tselem report, which talked about the reality having changed, the situation having changed, and that there was something new and different that had developed in recent years. And so they speak about the discourse around formal annexation in the last few years, they speak about the Nation State Law from 2018, and there’s this sense that—sometimes implicit, sometimes explicit—that there was a shift from a democracy imperfect, as it may have been, that had defined Israel for most of its existence to date, to an apartheid regime, and that this is something that has happened as the result of a series of events in recent years. This is maybe, in some ways, a way for the organizations making these claims to rationalize the fact that they hadn’t made this analysis previously. But it’s also, I think, reflective of a major gap that is there in the analysis, which is a failure to really drill down into that element of apartheid as linked to colonialism, as an expression of settler colonialism, as something that is a derivative and a mechanism of settler colonialism that has been there from the start. And so we can’t really talk about Israeli apartheid only post-1967, or only post-2018. It is something that has been a core constitutive and constitutional feature of the state from its foundation.
NE: One of the things that was really interesting is that I was invited by the European Journal of International Law blog to comment on the reports. And it just seems so odd to me because we were planting the seeds for this apartheid analysis across the country during and in the aftermath of the Palestinian Second Intifada, also popularly known as the Al-Aqsa Intifada. And so, when I was asked to comment on these reports nearly 20 years later, I was a bit at a loss. What can one say, at this point? And what I think became clear is what John summarized right now, is that the reports—even, you know, the Human Rights Watch report’s title: A Threshold Crossed—that there was a moment when Israel could no longer save itself from the throes of a racial regime and an apartheid system. We happen to think that that moment becomes irrevocable, undeniable in 2018 with the Nation State Law, which basically declared, by constitutional order, that only Jews have the right to self-determination on this land, and that settlement and settlement expansion is a constitutional principle. Israel declared itself an apartheid state. But far before that moment, what we wanted to make clear, and what I had made clear in that initial intervention, is that Israel did not become an apartheid state, it did not become racially discriminatory, but it was defined upon that basis and continues to be defined upon that basis. That was the primary point that we were emphasizing.
And the other point that we were emphasizing is a far more difficult, more nuanced point, I think, that we’re all still exploring, which is the racial question. When Zionism is understood as a racial project that is the intellectual and political bedfellow of apartheid, whereby it is also creating racialized subjects. The reports themselves don’t get into this bit. The B’Tselem report, in particular, avoids it altogether and rebukes it and says, “whereas apartheid South Africa, there was a racial regime, there is no race in Israel. It’s Jewish supremacy,” right? They’re avoiding a very sensitive, difficult topic. The other reports basically use the legal definition of two racial groups, it’s enough to define those two racial groups but there still remained outstanding. Yes. But what are the racial theories? How did Zionism racialize Jewish people beyond just being a people but as a racial group? How did they thereby also racialize the Palestinian other as marked for elimination and removal? And that was the work that, I think, still remains very sensitive. We have a very anemic discourse on race in the United States, and anything that has to do with Jews and racism and antisemitism gets us into this trap of not having the language to discuss it because it’s such a great taboo. And yet, that’s precisely the work that we were trying to do.
JR: You know, the reason that these gaps are there in the reports that we’re talking about is not specifically to do with the reports themselves, but it’s to do with the mandate of the organizations, which is based on international law. And so a lot of what the work that we’ve been doing is to do this critical analysis of international law itself, which does fudge the question in many ways when it comes to race. It hasn’t been able to deal with its own complicities, historically, in the global history of white supremacy. International law has been very much complicit in that. You have this situation that when it comes to how international law deals with colonialism, when it starts to prohibit colonialism in the early 1960s, it prohibits colonialism but in the way that it does so, it kind of retroactively legitimizes existing and established settler-colonial states and leaves them outside of the prohibition of colonialism. So you have the US and Canada, or Australia, or other settler-colonial states normalized and legitimized and not characterized in the same way as colonial regimes that the European colonial powers were managing and imposing in Africa and Asia. And so, the situation that you’re left with is that international law doesn’t really have a language to deal with settler colonialism itself, and as a result, doesn’t have a language to fully deal with the legacies and the afterlives and the ongoing present-day realities of race in a settler-colonial context.
AK: Omar, let’s get your response.
OS: Sure. Well, first of all, Noura and John’s article and what they’re saying here is so important, and I’m really thankful to Jewish Currents for having this conversation. I think it’s important for us to acknowledge that Palestinians, for years, decades, have been describing their lived reality as many things including apartheid, and not enough of us in the international community listen. So I think it’s really important that we listen and reflect. I would just want to say a few points to reflect on what was said. I think the first thing is our title, “A Threshold Crossed,” was intentionally worded that way. We don’t say, “when the threshold was crossed,” right? It could have been crossed decades ago, could have been crossed in 1948. It’s actually not about something changing in Israeli government policy. It’s about a discourse change that we’re looking to see happen, because apartheid has been discussed hypothetically, even by senior Israeli government officials and US officials going back for decades. I mean, you have Yitzhak Rabin in the 1970s, you have Jimmy Carter in 2006, and it came across during the annexation debates. It was quite commonplace, in fact, for people to talk about annexation, meaning institutionalizing apartheid. So our conversation was to say, “Actually, apartheid is the lived reality for Palestinians today.”
So the question then becomes: Why did Human Rights Watch release the report when it released it? I would say there’s an explanation, both in terms of the law, in terms of analytically, and in terms of the facts. Let me just say a word on each. So in terms of analytically, let me start there. Human Rights Watch, for 30 years, we’ve documented human rights abuses in Israel/Palestine. But generally, like all research, we’ve taken our scope of analysis to be very specific. Let’s look at the freedom of movement for people in Gaza. Let’s look at the land policies in the Naqab region. Let’s look at home demolitions in this part of the West Bank. But I think we did a process of sort of reflecting on whether or not this approach of looking at specific areas contributed to the popular misunderstanding of the underlying dynamics and reality on the ground. And I think we felt we had to ask a different question analytically, and the question we asked in this report is: How does Israel treat Palestinians? Period. And so that different analytic turn, which we hadn’t done before, is part of what triggered this analysis. But there’s also a legal explanation, right? The legal explanation is, of course, while the prohibition against apartheid and the crime date back decades, most of us didn’t think about apartheid legally, in the context of Palestine, until Palestine acceded to the Rome Statute in 2015. Because that immediately created this moment where, suddenly, there was this major, legal body that had, under its mandate, the ability to look at this crime as committed in Palestine. So that was a very important trigger for people looking at apartheid legally.
And then the third point is factually. I agree with John that the abuses that are characteristic, that underlie apartheid, date back decades. But one thing that has shifted in recent years is the deniability of the intent element of the analysis. And their report goes into it, we have statements from the 1940s that are included in our analysis. But for a long time, the Israeli government played the game—formally, in its court system, globally, of hiding behind this being a temporary process of sticking to the norms of international humanitarian law. But over the last decade, Israel stopped putting up that pretext. The Nation State Law that Noura mentioned is one example, but it’s not just that. It’s statements directly saying, “We intend to rule over Palestinians in perpetuity.” It is statements regarding the intent to retain the West Bank. And it’s not just words, it’s backed up by policies and laws that do that. So those facts make the policy or intent to dominate by Jewish Israelis undeniable. I mean, Human Rights Watch doesn’t write legal briefs, we don’t make arguments about law. We document clear-cut issues. And nobody, in the years-long process at Human Rights Watch that led us this report, really doubted that apartheid wasn’t happening. The facts have become so overwhelming.
And of course, it’s years of work by Palestinians, like someone like Shawan Jabarin is on our advisory board, we obviously consult very closely with our Palestinian partners and others that led us this moment. The last thing I’ll just say is the question that Noura and John surfaced around the ideological roots, or Zionism, and this report not dealing with it. I think I would just echo what John said about mandates, right? So the crime of apartheid, the intent requirement revolves around intent to dominate. You don’t have to prove a racist intent in order to find apartheid. So even if you intend to dominate for other reasons, even if it’s not rooted in racism, you don’t need to prove racism to get there. So the reports don’t go into that analysis because it’s not required to make the sort of legal determination that we reached. That said, it’s important to underscore, and I think this is maybe the most important thing I’ll say. Apartheid is not a singular narrative. Crimes take place in a context. And there’s been vital work that’s been done by Palestinians, by academics, over many years, to situate apartheid in the context of settler colonialism and other contexts. So Human Rights Watch’s mandate, which is international humanitarian human rights law largely, limits us to those legal terms. And as John noted, the legal architecture around settler colonialism is not as developed as it is around apartheid, which is why we focus where we focus. But people need to read the work that’s being done, that has been done, is continuing to be done by Palestinian human rights organizations, by academics globally. And I’ll stop there.
AK: Noura and John, you’re advancing a critique of how a liberal framework defines apartheid. But if a liberal solution to apartheid was embraced and implemented in Israel, Palestine, that would be nothing short of a revolution in the region; that is, there would be formal equality. So what is the utility of the radical critique you’re advancing in a moment when we haven’t even normalized the liberal critique?
NE: This perennial question. Let me start by saying we are, I think, by default, contextualizing ourselves within and centering the Global North in this discussion when we talk about what is being discussed how it’s being received—the liberal and radical critique. So I just want to take a moment to highlight that so we don’t normalize it and take it for granted. And also to lift up that, for example, amongst Palestinians, it’s not necessarily taken up either. But Israel as an apartheid regime was not necessarily taken up either, because, for them, it’s almost redundant to call it apartheid when they have something called Zionism that explains our conditions of unfreedom, so to speak. And in fact, had the Palestinian Liberation Organization not rescinded the Resolution 3379, declaring Zionism as a form of racism and racial discrimination, in 1991, as a precondition for entering the Oslo Peace Process. It might actually be redundant, today, to want to highlight that this is apartheid and Zionist because we would understand already that the racial link was already provided to us through a critique of Zionism.
Which brings us back full circle, Alex, to answering your question about then: Why the radical critique? It’s not really that radical. This is actually a lived reality, and what we’re doing by lifting this up is we’re removing the layers of scaffolding, what John and I have described as the fortress that Oslo built around a critique of Zionism, to understand what it is. That’s what this work is doing, because what Oslo did, in 1991—formally, since 1993—was to redefine the Palestinian question—the struggle for freedom—as a matter of peace and conflict resolution, and created false parity between the only nuclear power in the Middle East, the 11th most significant military power in the world, and a stateless people that doesn’t even have an airport. So that any kind of discussion that we were having is completely at the margins, and work that Omar has lifted up, John has lifted up, of advocates, of organizations, of Palestinian human rights organizations, of thinkers, of academics, and so on and so forth, has been to steadily dismantle that fortress so that we can just come back to where we started.
AK: What are the important elements of John and Noura’s piece? Is this term “decolonization”—it’s kind of become a buzzword, I think, but what would decolonization mean in Israel/Palestine concretely? And also, what do people get wrong or misunderstand about the term?
JR: So when we talk about decolonization—if we’re talking about it as a buzzword, and the idea that in western educational and cultural spaces, the ideas about decolonizing the curriculum, decolonizing the university, decolonizing the museum, and so on—these are important discussions to be having, in terms of how do we understand memory in societies that we live in? How do we understand historical commemoration? How do we understand the connections between ideas, and history, and so on? But they only bring us up to a certain point, and there are real, concrete, material elements to decolonization that aren’t being dealt with in this popularization of the decolonization discourse. There’s a famous piece by indigenous scholars Tuck and Yang talking about decolonization not being a metaphor, and how it has to deal with the material questions about the land. And so, in Israel/Palestine, that means how do we think about not just the settlements in the West Bank, but the villages that were destroyed in 1948, and what’s on those lands and on those villages? Now it means thinking about how do we dismantle the institutions of Zionism that have taken control of this land and decided on, legally and socially, how it can be allocated. It means taking head on the question of the Jewish National Front of the Israel Land Administration, their relations with the state, with the constitutional order. And it also means thinking about questions of reparations, and how do you really, fundamentally dismantle the colonial institutions, the colonial ideologies, that have defined the state and its relation with the Palestinian population, for all of its existence. And how do you reconfigure a sense of shared political agency and political relations in the context of, let’s say, a post-apartheid transition in Palestine that rethinks, fundamentally, the relationship between Jewish people and a territory, that fundamentally rethinks the hierarchies of citizenship and the immigration and residency regimes that are there, that will think about the Jewish presence in Palestine, not as a colonial presence, not as one of conquest, but as one that is a completely different relationship with the Palestinian people there, the Palestinian communities there, and the lands and traditions in that place?
NE: I think that people hear decolonization and they almost think that we’re asking for some fantasy, right? People think about it as we’re reversing. But what indigenous scholars have shown us, and Indigenous Studies has demonstrated very amply, is that indigenous life is a vision for the future. It’s about building forward, it’s not about going backward. One of the main things that we’re emphasizing in this piece is, because apartheid conjures a juridical framework, most people tend to think that the antidote to apartheid is a juridical form of equality, that it’s constitutional reform whereby one person one vote, all people are equal in this place. And we want to disrupt that idea, not least because the South African context has provided for us why that isn’t enough, and how that can perpetuate the problems under different, more minimal means. The last thing that we want to do is to democratize the settler colony. We want to decolonize, and at the base of that is a reckoning. It’s an ideological reckoning, and it’s a reckoning with loss and displacement. It’s not just enough for Palestinian refugees to return and now have the right to vote. What has the displacement, over many generations, in many decades, meant in terms of wealth that’s been accumulated and opportunities that they’ve been deprived of? So echoing John, its wealth redistribution, its reparations, its land redistribution. It’s a way of thinking about a future model of how to be with one another, rather than one about how we return to something long past. That we cannot do, but the future we can build.
AK: And Omar, I want to close with this question: How does the human rights world relate to the term decolonization? Is it a term they use? Is it a framework that makes sense to them?
OS: Yeah, I think there’s this notion that legal understandings of apartheid necessarily equate with inequality, that equality is the answer. I think that’s a misconception. I mean, if you look at—and Noura and John’s piece does this—that the origins of the movement for recognition of apartheid as a crime against humanity, that came from activists in the Global South and South Africa, also do include it in the Rome Statute; the ICC was against something that was pushed by activists from the Global South. And I think if you look at even the human rights reportings—Human Rights Watch and Amnesty and others—on apartheid, our recommendations aren’t simply to say, “maintain the status quo and just give equal rights to the people live between the river and the sea.” The report is quite clear about dismantling settlements, returning settlers back, it’s clear about dismantling all forms of privilege, all legal structures that maintain the repression, discrimination. Recognizing, honoring the right of return, that’s a core issue. I did an event recently with Darryl Li, where he very eloquently describes how, unlike other situations, this is not a situation of Population A and B in a certain area, because you have circles outside, you have Jewish noncitizens that have privileges denied to Palestinians who live between the river and the sea, and then you have Palestinian refugees that they’re denied even privileges given to foreign tourists that come on the ground—which, by the way, some of those privileges are also denied to Palestinians who live between the river and the sea. So clearly, when human rights groups say dismantle apartheid, we aren’t simply saying equality, we’re saying something much more ambitious.
So now to get to the heart of your question: What does decolonization look like? I want to quote one Noura Erakat. If you read her book about law in the service of movements, you’ll understand there are limitations on what a legal framework will dictate in these sorts of situations. Particularly, there was an invocation that John made to South Africa; you look at South Africa and you see the current reality on the ground, and you see some of the shortcomings of just taking an approach that looks at criminal accountability for the perpetrators. What needs to be done? It needs to be much more broad and comprehensive, but I think we are in need for direction, and there has been more and more coming from Palestinians, from Israelis, from the international community regarding a vision of decolonization. Human rights is not going to be, the law is not going to be your reference point. We can provide maybe some general guiding principles, but ultimately, if we look at legal instruments as the answer for decolonization, it’s going to fall short, just as it fell short in many other contexts. So I think law can be helpful, but ultimately, it’s going to be about a more broad-based organizing, and hopefully, the law can be helpful in guiding that process and helping to support it. Read Noura’s book, basically.
AK: And that’s our show. Thank you so much for listening. Please subscribe to the podcast and rate it so more people get to know about it. And as always, subscribe to Jewish Currents, and check out our website, JewishCurrents.org. We’ll see you next time.