Sarah Leah Whitson is the Executive Director of DAWN.
Over the past year, a growing consensus has emerged among leading Palestinian, Israeli and international human rights organizations, as well as broader public opinion, that Israel is committing the crimes of apartheid and persecution under international law. The recognition of these crimes takes place in the context of shifting public sentiments of declining support for Israel, particularly in the United States, as social media has made available to mass audiences unfiltered coverage of relentless Israeli abuses of Palestinians.
While the facts, the law and public opinion are converging on what should lead to global action to end Israeli apartheid and war crimes, there is an active campaign by the Israeli government and its supporters—notably in the United Kingdom and in the United States—to delegitimize, silence and punish efforts to hold Israel accountable for its crimes in ways that threaten the freedoms we have in our own countries, particularly freedom of speech. In effect, Israel is now exporting the authoritarian tactics of repression it uses against Palestinians. Other political interests, like energy companies and the gun lobby, that wish to silence discussion and advocacy on climate change and gun control, to give just two examples, are copying these very same tactics by contributing to and lobbying legislators to introduce similarly styled laws and resolutions in the United States and elsewhere.
We have now entered a stage where our own governments must choose between the interests of the Israeli government to preserve its impunity and the interests of their own citizens in our cherished rights and freedoms.
The path to recognizing Israel's apartheid rule has unfolded over many decades, starting, ironically, by the architect of apartheid in South Africa, Prime Minister Hendrik Verwoerd, back in 1961, who declared Israel was also an apartheid state, and then by Yitzak Rabin, who as Israel's prime minister in 1976 warned that the country would be an apartheid state if occupation and settlements continued. U.S. President Jimmy Carter's 2006 book denouncing Israeli apartheid attracted the most global attention, but it has been the successive reports of Palestinian, Israeli and international rights organization that have catapulted the apartheid assessment into one to which governments and organizations around the world are now being forced to respond. Those reports were followed by U.N. Special Rapporteur Michael Lynk and, most recently, the International Human Rights Clinic at Harvard Law School, which reached a legal conclusion on apartheid in the occupied West Bank based on extensive analysis of the facts and the law.
Dozens of governments have now formalized their positions about Israeli apartheid. All 54 African countries in the United Nations, the 22 countries of the Arab League and the 57 countries of the Organization of Islamic Cooperation (with overlap among them), as well as Venezuela, all referenced Israel's apartheid system at the U.N. Human Rights Council's session this past March, following the African Union's demand at its February summit to the international community "to dismantle and ban the Israeli system of colonialism and apartheid that constitutes a crime of apartheid and requires legal accountability." This follows repeated if less formal references about the apartheid reality of Israeli rule by the foreign ministers of Luxembourg and France, as well as former U.S. Secretary of State John Kerry, and countless former Israeli government officials, including former Prime Ministers Ehud Barak and Ehud Olmert, along with Yitzhak Rabin. Even Israel's staunchest supporters, the United States and the United Kingdom, have been tepid in their defense of the apartheid designation, with the Biden administration meekly proclaiming that it's "not the view of this administration," and the British government stating it was "a matter for judicial decision."
To deflect from the ugly reality of apartheid, the Israeli government and its defenders have fallen back on their regular playbook: shooting the messengers by smearing them as antisemites.
- Sarah Leah Whitson
The acknowledgement that Israel is committing the crime of apartheid under international law has emerged amid a significant shift in both public and elite foreign policy opinion about the situation on the ground. From national broadcasters to Washington think tanks, from the floor of the U.S. Congress to street protests around the world last year following Israel's latest war in Gaza, the conversation has turned far away from the stale defenses of "Israel's right to exist" and references to "terrorists" and "antisemitism" to a new recognition of Palestinian rights.
Even staid American think tanks have changed their analysis, abandoning the mythical, infinite placeholders of a "two-state solution" and a "peace process," relied on by Israel, the U.K. and the U.S. to justify the status quo of support for endless military occupation. The Carnegie Endowment for International Peace, where several senior Biden administration officials hail from, recommends a new policy framework centered on equal rights and freedom for both Palestinians and Israelis, living under Israel's authority in a one-state reality.
On the face of it, the growing call for equality, nondiscrimination and human rights should be uncontroversial, as basic global values: Who can oppose equal rights? But such a call for equal rights and all that entails—equal voting rights, equal political participation, equal national rights for Jews and Christian and Muslim Palestinians alike—is tantamount to an intellectual earthquake in the context of Israel, which is legally and politically predicated on Jewish ethnonational supremacy and Palestinian expulsion.
The shift to a focus on equality for Palestinians has even seeped into U.S. government statements, such as Secretary of State Antony Blinken's now repeated pronouncement that Israelis and Palestinians should enjoy "equal measures of freedom, security, prosperity and democracy."
The most important reason for this shift has been the ability of Palestinians to document, report and explain their daily lives under subjugation and military occupation to a broader, global audience. Using social media, they have leapfrogged over traditional media gatekeepers that would otherwise routinely depict them as a singular terrorist entity. The increased diversification of the foreign policy establishment in the U.K. and U.S. governments, as well as think tanks, academia and journalism, to include at last not just people of color generally, but Muslims and Arabs in particular, has been another factor in this evolution.
To deflect from the ugly reality of apartheid, the Israeli government and its defenders have fallen back on their regular playbook, with a strategy that amounts to shooting the messengers by smearing them as antisemites in order to intimidate and silence them. Israel sees the apartheid label as a dangerous threat, as Yair Lapid, Israel's then-foreign minister and now prime minister, recently explained: "We think that in the coming year, there will be debate that is unprecedented in its venom and in its radioactivity around the words 'Israel as an apartheid state'. In 2022, it will be a tangible threat."
The Israeli government has spent hundreds of millions of dollars over the past decade to defeat speech critical of Israel in the U.K. and the U.S., and around the world. Labeling Human Rights Watch and Amnesty International as biased and "antisemitic" has been the tried and tested knee-jerk approach. Most recently, a joint statement by American groups that claim to be pro-Israel, including the American Israel Public Affairs Committee, accused Amnesty of seeking to "demonize and delegitimize the Jewish and democratic State of Israel."
Not satisfied with its own anti-BDS laws in Israel, and now considering laws to sanction speech that describes Israel as an apartheid state, the Israeli government is pushing laws and rules to sanction free speech in Western democracies.
- Sarah Leah Whitson
But what's new and different is that this silencing strategy is now relying on vastly expanded legal tools to stifle speech—tools that pretty clearly can, and will, be used to punish speech and advocacy on Israeli apartheid. This includes anti-Boycott, Divestment and Sanction laws in at least 30 U.S. states, as well as renewed efforts in the U.K. that seek to punish those who advocate for accountability for Israel.
In the U.K., the legislation to date is limited to a ban on public service pensions divesting from companies if the pensions' investment decisions "conflict with the U.K.'s foreign and defense policy," although it's hard to see how divestment to protest Israeli settlements, which the U.K. has condemned as illegal, would be contrary to British policy. In May, the Queen's Speech signaled that the U.K. government will seek to introduce legislation banning all boycotts of Israel by public bodies in Britain, but this is likely to face the same legal challenges as earlier failed bans, including the 2016 U.K. Supreme Court decision overturning a government order banning local councils from divesting from Israel.
Unfortunately for the Israeli government, which has worked in lock step with local pro-Israel groups to pass these anti-BDS laws, in many cases secretly funding them, the laws have faced First Amendment legal challenges in American appellate courts that have struck down their enforcement, ruling that they violate freedom of speech. In Germany and France, as well, efforts to pass similar anti-BDS laws have faced successful free speech challenges in court.
That's why the Israeli government's strategy will increasingly focus on expanding official adoption of the International Holocaust Remembrance Alliance's "working definition" of antisemitism, and then to push for its legal enforcement on the same basis as hate crimes. The State Department adopted its use in 2016. According to one of the IHRA's own stated examples of antisemitic speech in its sweeping definition of antisemitism—"denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor"—a legal conclusion that Israel is committing the crime of apartheid could be considered antisemitic simply because it accurately describes Israel's racist practices and policies. We can expect more efforts to enforce this definition of antisemitism against any criticism of Israeli apartheid.
The U.K. government formally adopted the IHRA's working definition of antisemitism in 2016 but did not include the definition's annexes, which include these problematic examples. Both the Conservative and Labour parties, however, have adopted the examples in toto. There will no doubt be expanded efforts to widen the definition's adoption and push for its enforcement in local legislatures and civil society organizations. The definition has already been adopted by some U.K. universities and local councils and applied or threatened as a ban on public meetings—for example, "Israeli apartheid week" at various universities, and a proposal by the Barnet Council in London to refuse the BDS Movement a meeting place in the borough.
This definition of antisemitism has also already been used to launch formal investigations of professors at several universities considered too critical of Israel's policies. It will be used to sanction and fire those deemed to breach it, and to cut off funding of institutions that don't conform to it. Disturbingly, the Trump administration tried in its waning days to issue a declaration condemning Human Right Watch, Amnesty International and Oxfam, among others, as "antisemitic" organizations and urging other governments not to support them, but ran out of time to pursue the effort.
Increasingly, we are seeing local governments also curtail pro-Palestine speech by banning certain protests, most recently in Berlin to stop a Nakba Day commemoration in the city—ostensibly because of what German police called the "immediate risk" of antisemitic chants, intimidation and violence—and a subsequent vigil in the wake of the murder of Palestinian journalist Shireen Abu Akleh by Israeli forces in the West Bank. The chilling effect is quite clear: Even if courts ultimately reject such enforcement as an infringement on speech, the aim is to impose costs and notoriety via investigations and lawsuits that discourage others from speaking out. So yes, this is about the crime of apartheid by Israel. But it's also about our own governments—in the U.K. and the U.S. and across Europe—failing to protect our rights, our free speech, by supporting antisemitism rules and measures against BDS promoted by the Israel government in our own countries.
And the Israel copycats are flourishing, seeking to mimic the anti-BDS and antisemitism laws with over a hundred new laws that sanction other kinds of political speech, like advocacy on climate change, fossil fuels or gun control. Pushed by their respective lobbying and corporate groups, some of these laws have been labeled as discriminating "against firearm and ammunition industries." Others target boycotts of oil and gas companies, or even writ large against requirements for "environmental, social and governance" disclosure policies.
This is what exporting authoritarianism looks like. Not satisfied with its own anti-BDS laws in Israel, and now considering laws to sanction speech that describes Israel as an apartheid state, the Israeli government and its supporters are pushing laws and rules to sanction free speech in Western democracies, contributing to the deterioration of our freedoms across a range of issues of tremendous civic importance.
Editor's note: This article is adapted from an address delivered at a conference on apartheid in Israel and Palestine that was hosted in London by the International Centre of Justice for Palestinians on May 31, 2022.
