I participated as a witness at the South Africa session of the Russell Tribunal on Palestine which took place last month in Cape Town, from 5-7 November. The Tribunal was founded in the 1950s by the philosopher Bertrand Russell, and originally hosted by Jean-Paul Sartre. Formally calling itself the International War Crimes Tribunal, it deliberated over two sessions in 1967 on the issue of American foreign policy and military intervention in Vietnam. The overall aim, according to Russell in 1967, was to arouse consciousness in order to create mass resistance “in the smug streets of Europe and the complacent cities of North America”, and “prevent the crime of silence”.

It was followed by a Russell Tribunal on Latin America (1974-1976), focussing on the military dictatorships in Argentina, Brazil and particularly Chile. It was reconstituted in 2004 as part of a World Tribunal on Iraq, with philosopher Jacques Derrida stating that “to resuscitate the tradition of a Russell Tribunal is symbolically an important and necessary thing to do today.”

It has always been sharply criticised. For example according to Noam Chomsky, one US state department functionary dismissed the Vietnam session, stating he “had no intention of playing games with a 94 year-old Briton.” On a more substantive front, Chomsky writes that there were two legitimate criticisms: that the participants, the ‘jurors’ and the witnesses were undoubtedly biased; and that the indictment was redundant.

There are three rationales provided for establishing the Russell Tribunal on Palestine (RToP) in 2010: the international community’s failure to implement the International Court of Justice’s 2004 Advisory Opinion on the construction of a wall in the Occupied Palestinian Territory; the lack of implementation of UN General Assembly resolution ES-10/15 confirming the ICJ Opinion; and the Israeli offensive on Gaza in winter 2008-2009. It began in Barcelona where the objective was to consider the complicities and omissions of the European Union and its member states in the continuing occupation of Palestinian territories by Israel. The second session took place in London, examining international corporate complicity in Israel’s violations of international human rights law, international humanitarian law and war crimes. The third South Africa session, by far the most controversial, asked the question: “Are Israeli practices against the Palestinian people in breach of the prohibition on apartheid under international law?”

The format was that experts and witnesses were invited to present their case to a jury, which was led by Stephane Hessel, a 94-year old who had fought in the French resistance, escaped from Belsen concentration camp, edited the Universal Declaration of Human Rights, and wrote the bestseller Indignez-vous (Time for Outrage!) in October 2010 which has sold over 3.5 million copies in the Francophone world.

The Tribunal was held in the District Six Museum in Cape Town, a choice that ensured a direct link with South Africa’s legacy of apartheid, notably its experience of forced removals. The Museum website summarises its history: “Originally established as a mixed community of freed slaves, merchants, artisans, labourers and immigrants, District Six was a vibrant centre with close links to the city and the port. By the beginning of the twentieth century, however, the process of removals and marginalisation had begun. The first to be ‘resettled’ were black South Africans, forcibly displaced from the District in 1901… In 1966 it was declared a white area under the Group Areas Act of 1950, and by 1982, the life of the community was over. 60 000 people were forcibly removed to barren outlying areas aptly known as the Cape Flats, and their houses in District Six were flattened by bulldozers.” The process was recently parodied in the excellent South African science-fiction film District 9.

The RToP was preceded by an article in the New York Times by South African judge and former ICTY Prosecutor Richard Goldstone, on the “particularly pernicious and enduring canard that is surfacing again…that Israel pursues “apartheid” policies.” He pointed out that the RToP, despite its name, “is not a “tribunal.” The “evidence” is going to be one-sided and the members of the “jury” are critics whose harsh views of Israel are well known.” He raised the definitional aspects of the question, arguing that 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 domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”

John Dugard, a former South African anti-apartheid lawyer, ICJ judge, UN Special Rapporteur and witness at the RToP, responded. He agreed that the RToP “is not a judicial tribunal… In essence, the Russell Tribunal is a court of international public opinion.” He pointed out that the Israeli Government had been invited to testify before the Tribunal but had not replied. Furthermore: “Israel cannot be held accountable for its actions by any international tribunal as it refuses to accept the jurisdiction of either the international Court of Justice or the International Criminal Court. The Russell Tribunal seeks to remedy this weakness in the international system of justice by providing for accountability by a court of international opinion.”

He countered Goldstone’s arguments that apartheid South Africa and Israel-Palestine are not comparable: “Of course the regimes of apartheid and occupation are different. Apartheid South Africa was a state that practised discrimination against its own people. It sought to fragment the country into white South Africa and black Bantustans. Its security laws were used to brutally suppress opposition to apartheid. Israel, on the other hand, is an occupying power that controls a foreign territory and its people under a regime recognised by international law – belligerent occupation. However, in practice, there is little difference. Both regimes were/are characterised by discrimination, repression and territorial fragmentation (that is, land seizures).”

The Goldstone-Dugard exchange set the tone for the Tribunal, which took place amid intense media scrutiny. The website of the RToP was hacked, crashing on the second day, with evidence of what its designer called a “sophisticated” attack. It was emphasised to me repeatedly that the previous two Tribunals (which I had not attended), while generating some interest, had come nowhere close to the attention this session received. There was hostility in the Israeli press and considered support from the Guardian among others, which carried a piece by juror Michael Mansfield QC, and Archbishop Desmond Tutu, who opened the proceedings.

A further fallout occurred following testimony by the MK [Member of the Knesset] Haneen Zoabi, the first woman elected to the Knesset on an Arab party’s list. She argued: “Establishing this tribunal in Cape Town gives it symbolic value, hinting at the attempts of the Israeli regime to make Israel the exclusive state of the Jews… Unlike Israel, South Africa admitted that it was a racist regime.” About an hour following the talk Michael Mansfield QC announced that MK Otniel Schneller (Kadima) had filed a complaint to the Knesset Ethics Committee, calling for the revocation of Zoabi’s citizenship. Zoabi countered that this had “proved” what she had said during the Tribunal: “that anyone who talks about reality in Israel will be persecuted.”

The RToP was designed to ensure that it was a legal, rather than a polemical, forum, since apartheid is an international crime. The design of the speakers was fitted around the apartheid definition, which stems from the Apartheid Convention 1973 and was reproduced in the Rome Statute of the ICC. Incidentally that was why I was there; to discuss the international legal meaning of the term ‘racial’, for to legally qualify as apartheid it must be domination by one racial group of another racial group. This represented a problem for analysts who wished to argue for apartheid, since Israelis for one are not considered a race, and neither are Palestinians, even granted that race has no scientific meaning. I distinguished between ‘race’ and ‘racial discrimination’ by pointing to the origins of the International Convention on the Elimination of Racial Discrimination 1965, which began as a response to an anti-Semitic outbreak in the winter of 1959 known as the ‘swastika epidemic’. In other words, in international law, the meaning of ‘racial’ has always been broad and practical, and groups do not need to be considered a ‘race’ to suffer ‘racial discrimination’, as evident from the definition in Article 1(1) ICERD which lists ‘race’ and four other terms in its understanding of racial discrimination. My testimony, and all the others, is available here.

What is apparent is that the Cape Town RToP has changed the Israeli approach to the Tribunal and to the apartheid argument. The previous strategy was to ignore such accusations as well as the Tribunal; refusing to play games with a 94 year-old Frenchman as it were. I would argue that the Goldstone op-ed signalled the end of that policy. Clearly, it was predicted that the Cape Town session would receive too much attention so international legal experts, politicians and media opinion-makers chose to engage. In this sense, the RToP achieved what must have been its primary aim; to bring the apartheid debate to the table.  The second aim, to frame that debate in legal terms, was similarly successful.

For a cogent summary and analysis of the RToP’s findings, see this piece by Victor Kattan. In conclusion I would point to an opinion piece from the editor of Haaretz, Amos Schocken:

“The term ‘apartheid’ refers to the undemocratic system of discriminating between the rights of the whites and the blacks, which once existed in South Africa. Even though there is a difference between the apartheid that was practiced there and what is happening in the territories, there are also some points of resemblance. There are two population groups in one region, one of which possesses all the rights and protections, while the other is deprived of rights and is ruled by the first group. This is a flagrantly undemocratic situation.”

There is one more session to go, rumoured to take place in New York.