Nathan Thrall · The Separate Regimes Delusion · LRB 8 January 2021
The only way for the Zionist left to oppose ethnic domination in the West Bank while preserving ethnic privilege in pre-1967 Israel is to assert that there is an ‘apartheid regime’ in the West Bank separate from the Israeli state. For pre-1967 Israel to be part of an apartheid state would therefore require formal annexation of the West Bank, ‘amalgamating’ the two regimes. But this is a misunderstanding of the crime of apartheid as described in international law. Like torture, apartheid does not need to be applied uniformly or everywhere in a country to be criminal: in international law there is no such thing as an ‘apartheid regime’, just as there is no such thing as a ‘torture regime’. The word ‘regime’ doesn’t appear anywhere in the original 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. And, although the 1998 Rome Statute of the International Criminal Court does use the word ‘regime’ in its definition (it was added to satisfy the US delegation, which was concerned about the possible prosecution of US citizens belonging to white supremacist groups), it was clearly not inserted to allow apartheid to be restricted to regions or units of a state.
Yet the notion that only formal annexation can turn Israel into an apartheid state has become intrinsic to left-wing Zionist ideology. In June last year, more than five hundred scholars of Jewish studies, many of them prominent supporters of Israel, such as the American Jewish philosopher Michael Walzer, signed a letter stating that ‘annexation of Palestinian territories will cement into place an anti-democratic system of separate and unequal law and systemic discrimination against the Palestinian population. Such discrimination on the basis of racial, ethnic, religious or national background is defined as “conditions of apartheid” and a “crime against humanity”.’
The same month, Zulat, a new think tank headed by the former chair of the liberal Zionist Meretz party, Zehava Gal-On, published a report entitled ‘Whitewashing Apartheid’. In a section on the consequences of de jure annexation it performed a whitewash of its own, arguing that apartheid in the West Bank is currently practised not by Israel but by a separate regime: ‘Even if we annex only one square metre, the state of Israel will be relinquishing its democratic pretensions and abandoning its 53-year declared intention to end the conflict, reach an agreed settlement with the Palestinians and cease ruling over them.’ Even annexation, however, ‘does not necessarily make Israel an apartheid state but rather preserves it as a state operating a regime with apartheid characteristics in the occupied territories’. By this standard, apartheid South Africa was a democracy – like all democracies, an imperfect one – operating a regime with apartheid characteristics in the townships and Bantustans. Those Bantustans, incidentally, had their own flags, anthems, civil servants, parliaments, elections and a limited degree of autonomy not unlike that of the Palestinian Authority.
Perhaps no organisation has promoted the idea of separate regimes more forcefully than Yesh Din , a human rights organisation that has conducted important legal advocacy on behalf of Palestinians subjected to settler violence, unlawful killing and destruction of property by Israeli security forces, Israeli land confiscation and Israeli restrictions on access to farmland. Last year, Yesh Din became the first Israeli organisation to publish a significant report accusing government officials of apartheid. At the same time, it is one of the staunchest defenders of the separate regimes theory. Yesh Din’s shifting, inconsistent answers to the question of at which point Israel would cease to be a democracy have been emblematic of the broader weaknesses in the separate regimes argument.