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Op Eds
By
Julian J. Giordano
By
Duncan Kennedy
Duncan Kennedy ’64 is the Carter Professor of General Jurisprudence, Emeritus at Harvard Law School.
June 2, 2024
Last July, the U.S. House of Representatives passed, with bipartisan support, a resolution stating that “Israel is not a racist or apartheid state.” At the beginning of May, a bipartisan majority of the House voted through the Antisemitism Awareness Act, a bill requiring the U.S. Department of Education to use the definition of antisemitism articulated by the International Holocaust Remembrance Alliance when addressing allegations of discrimination on university campuses.
According to the IHRA definition, arguing that the state of Israel is a “racist endeavor” would constitute antisemitism. If the bill is passed into law, the Department of Education will presumably issue regulations about what speech is forbidden, and it may withhold federal funds from offending universities.
It seems certain that this legislation will generate intense pressure to characterize accusations of Israeli apartheid as per se antisemitic. Opponents of the bill argue that the First Amendment protects political speech no matter how hateful, and that accusations of racism taking aim at the Israeli government’s policy decisions are not inherently antisemitic.
But the House opponents of the bill don’t, that I’ve seen, address the claim that Israel is an apartheid state on the merits. The reasons are obvious — why make the most provocative possible argument against the law?
And because the apartheid accusation is rarely discussed in the mainstream media, the facts I outline here comparing the West Bank to apartheid South Africa are rarely presented as a group to support it. The accusation may now be forbidden on campus without ever having received a fair hearing in public debate. This is all the more likely because media attention is rightfully monopolized by Israel’s genocidal war in Gaza and the Hamas massacre that provoked it.
For decades, Palestinian scholars and activists have made the case that Israel is committing apartheid and have been routinely ignored. The mainstream media has also had little or no reaction to the recent turn of international and Jewish Israeli human rights organizations, including the Association for Civil Rights in Israel, the Israeli equivalent of the American Civil Liberties Union, to the conclusion that Israel practices apartheid at least in the West Bank. (Harvard Law School’s International Human Rights Clinic reached the same conclusion in 2022.)
The Netanyahu government and vast swathes of the Israeli public have denied and denounced the apartheid accusation as part of their campaign against liberal Israeli NGOs, creating a rational fear of reprisals for any American academic and any student activist who might think to get involved. If the House bill were to become law, the chilling effect would be multiplied many times over.
No one has ever been prosecuted for apartheid, which is a crime against humanity under international law. But even if Israel’s leaders are never criminally charged, the facts I present here show a striking similarity between Israel’s regime in the West Bank and South African apartheid in its fully developed form.
The current South African government has already formally announced its agreement with the comparison. Of course there are differences between the two regimes, but I don’t think they undermine the basic point. There is also a case, albeit a complex one, that Israel practices apartheid against its Palestinian citizens within Israel proper. I stick here to the simpler case of the West Bank.
First, both Israel and South Africa appropriated large land areas and reserved them for the exclusive use of the dominant group. Approximately 42 percent of the land in the West Bank is, according to Israeli sources, occupied by settlements housing approximately 700,000 Israeli settlers. The settlement territory and population is still expanding, along with sustained settler violence against their Palestinian neighbors and Palestinian violent resistance.
Second, the West Bank, split into settler and Palestinian areas, is similar to the white and Black areas in apartheid South Africa. In both cases, regulations restrict new residence in the dominant area to the dominant group, and a pass or identity card system restricts the freedom of movement of the dominated population from their zone into the dominant areas. In the case of Israel, Palestinians are forbidden to use much of the network of modern highways that link the settler areas and fragment the Palestinian ones. The West Bank barrier wall further restricts Palestinian movement and also isolates and intensifies Israeli control of the Palestinians and their land on the Israeli side.
Third, as in apartheid South Africa, there are massive differences in Israel’s provision of government services in settler and Palestinian zones. Settlers are fully integrated into the provisions for public investment and social services of Israel proper and indeed receive large subsidies. The Palestinian areas, like the townships and Bantustans of apartheid South Africa, are starved for investment and lack the authority or the funding to minimally provide for the needs of their expanding population.
Moreover, Israel’s military authority sharply restricts building permits in Palestinian areas, so families become steadily more crowded as the population grows.
Fourth, the Palestinian economy is effectively subordinate to the larger Israeli economy, dominated by Israeli firms and financial institutions, with no regulatory or tariff power to resist economic exploitation.
Furthermore, Israel disproportionately allocates water, the single most important natural resource in the West Bank, to the point that settler lawns are sprinkled while neighboring Palestinian villages receive barely enough for basic household needs.
Fifth, like Blacks in apartheid South Africa, Palestinians in the West Bank have no political voice in the Israeli decisions that control their lives. And compared to the Jewish citizens of Israel who live next door in the settlements, their civil rights are radically restricted. For example, because they are Palestinian, not Israeli, they live under Israeli military security law rather than under the Israeli civilian law regime. As a result, they can be detained indefinitely without trial.
As in apartheid South Africa, numerous independent investigations have documented the routine torture of political arrestees. And according to the UN, teenage children arrested for offenses like throwing stones at soldiers are routinely subjected to “some form of violence” while in custody.
This is a partial list.
But isn’t everything Israel does in the West Bank simply its necessary response to Palestinian terrorism, forever exemplified by suicide bombing in the second Intifada and Hamas atrocities on Oct. 7?
The basic legal structure of separation and domination in the West Bank, which is effectively race-based (Jewish vs. Palestinian), has nothing to do with security. It has to do with, indeed it is itself, the (settler) colonial project. It is true that protecting the project against Palestinian resistance is about security, including the routine use of detention and torture. But in this respect, the similarity between Israel’s actions in the West Bank and South African apartheid in the years of its violent repression of the (violent) resistance, is at its clearest.
Duncan Kennedy ’64 is the Carter Professor of General Jurisprudence, Emeritus at Harvard Law School.
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