Inversions of Truth Regarding Apartheid in the Middle East

Eugene Kontorovich's article There’s Apartheid in the Holy Land, but Not in Israel echoes and reinforces  several points that I have made, including that apartheid has a legal definition, that accusing Israel of apartheid is not only a lie but an inversion of truth, and that Amnesty International's recent report about Israel is disgraceful.

Kontorovich begins by explaining what apartheid is: "The defining characteristic of apartheid--what distinguishes it from generic racial discrimination--is the rigid separation of groups in public spaces and positions of power. This is the apart in apartheid."

It is very important that political leaders accurately define apartheid and then apply the accurate definition when making policy decisions. It is the responsibility of media members to accurately define apartheid and then apply the accurate definition in their reports. Politicians and media members who fail the basic test of accurately defining apartheid and then applying the accurate definition should not be trusted regarding not only this issue, but any issue: a deficit in reasoning, logic, and/or bias is rarely confined to just one subject, so a person who is wrong about apartheid is very likely to be wrong about other issues as well.

Kontorovich notes that one example of apartheid is "a government policy that bans real estate sales or transactions to the disfavored group. Apartheid is suggested by policies that carve out massive zones where the disfavored group cannot live or work, create ethnically homogenous zones, and restrict the disfavored group to ghettoes. One might consider it apartheid if a government enforced a policy of extrajudicial execution of members of a disfavored group." Do those examples register with self-proclaimed "progressives" who seek to fight apartheid? If so, great--they should now direct their energy toward opposing the crimes against humanity committed by the Palestinian Authority in the West Bank and Gaza, because the PA enforces all of the above policies against Jews. Kontorovich notes that under PA law it is a crime punishable by death to sell land to a Jew, while in contrast under Israeli law "Arabs enjoy full property rights, enforced by the courts against Jews."

Kontorovich declares, "What makes the 'Israel apartheid' meme particularly despicable is that it is not just a lie, it is an inversion of the truth." This is why I use the phrase "self-proclaimed 'progressives'" to refer to those who claim to seek justice but in fact seek to, among other things, destroy capitalism to create a socialist economy, and ostracize Israel while ignoring the crimes committed by Israel's enemies. Proclaiming oneself to be progressive is not at all the same with actually having progressive ideas, goals, and actions: if your ideas, goals, and actions will not lead to progress, then you are not a progressive, no matter what you call yourself or what others call you.

Kontorovich concludes, "Apartheid is not merely a term of opprobrium, it is a crime created by and defined in international treaties. As a legal matter, while Ramallah's treatment of Jews is discriminatory and violates human rights, it is impossible to say it formally qualifies as apartheid. The standard for apartheid has been set so high by the international community, that thus far only South Africa has been deemed a clear case. But by the standards implicit in Amnesty's report, the Palestinian government is guilty."

Attorney Richard Heideman Explains the "Hijacking of Apartheid"

Richard Heideman is an attorney whose firm is active in the fight against Islamic terrorism. Heideman Nudelman & Kalik PC has obtained judgments against "the Islamic Republic of Iran in the amounts of $1.27 billion and $813 million; and against the Syrian Arab Republic in the amounts of $601 million, $51 million and a landmark Judgment of $3.4 billion. The firm has represented numerous victims of terror before the US Foreign Claims Settlement Commission and is counsel to American Victims of terrorism against the Arab Bank, plc, which was pending in the Eastern District of New York." I previously wrote about the efforts of Nitsana Darshan-Leitner and several other attorneys who have obtained court judgments against states that sponsor terrorism.

Heideman is also an author and speaker. Heideman has articulated the hijacking of apartheid in an article that is a must-read for anyone who cares about social justice. Heideman notes that South Africa practiced apartheid based on skin color, and that Saudi Arabia currently practices apartheid based on religion; in contrast, Israel is a democracy in which Arab men and women can vote, Arab media can and does criticize the Israeli government, Arabs have freedom of expression, and Arab politicians campaign for/are elected to public office. Since Israel began building a security fence (which is not a "wall," contrary to false media coverage) in 2001 in response to a massive wave of suicide bombings and other terrorist attacks against Israelis, suicide bombings have been reduced 100% and shooting attacks have been reduced by 93.5%. Israel lives in a very dangerous "neighborhood," and she shares borders with totalitarian regimes committed to her destruction, but despite the hatred and violence directed toward Israel she has created an oasis of freedom for both Jews and Arabs in a region where freedom is otherwise non-existent.

Apartheid has a specific legal definition, and it is not only irresponsible to use that term incorrectly, but doing so also hinders justice by providing shelter to the real oppressors while falsely accusing victims of oppression. 

Inversion of facts leads to subversion of justice, and that is what we are seeing far too often: self-proclaimed "progressives" marching in the streets chanting anti-Israel/antisemitic slogans that invert facts and subvert justice.

It has become so fashionable and reflexive in some quarters--most notably among self-proclaimed "progressives"--to call falsely label Israel an "apartheid state" that even people who may sense at some level that this accusation is false lack the necessary knowledge and/or courage to push back, particularly when the false accusers are so strident and self-righteous. Former Israeli Prime Minister Shimon Peres once foolishly declared that if Israel has good policies then it does not need any public relations and that if Israel has bad policies then public relations will not help, but anyone who possesses the slightest bit of common sense understands that public relations efforts are important for nations, for businesses, and for prominent individuals. Israel's unwillingness to push back against false narratives has emboldened her enemies, and this situation is a threat not only to Israel but to democracy and freedom; if Israel can be slandered, weakened, and possibly destroyed, then any democracy could face a similar fate.

A self-proclaimed "progressive" who sides with Iran, Syria, and other countries who are committed not only to Israel's destruction but to killing Jews around the world is taking a position contrary to everything that "progressive" values are supposed to uphold. It is bizarre that some people simultaneously claim to support freedom and equality while also slandering Israel and Jews, but it is important to make it very clear that anyone who falsely accuses Israel of apartheid is without question not a person who supports freedom and equality.

The Truth About Apartheid States, Genocide, and the Sheikh Jarrah Court Case

There is No Moral Equivalence Between Israel and Hamas and it has been disappointing to observe The Pathetic "Progressive" Response to Hamas' War Against Israel. Hamas bombarded Israeli civilians with thousands of rockets launched under the cover of human shields, but instead of Israel receiving broad-based support and Hamas being criticized for committing war crimes and crimes against humanity there has been a lot of ignorant and misguided commentary about Israel in general and about the specific property issue that is purported to be the reason for Hamas' attacks against Israel. 

The first part of this essay will examine the accusation that Israel is an "apartheid state" committing genocide against Arabs. The second part of this essay will provide historical and legal background regarding the Sheikh Jarrah property issue.

Defining Apartheid and Genocide

The terms apartheid and genocide have specific meanings. It is not difficult to determine if those terms are being used accurately and appropriately.

Apartheid describes a system of legislation in South Africa that forced non-white South Africans to live in separate areas and use separate public facilities. Apartheid laws applied a host of restrictions, including forbidding non-white South Africans from marrying white people, and not permitting non-white South Africans to participate in the national government.

No Israeli citizens are subjected to separate, unequal treatment under the law. There are not separate public facilities that certain ethnic groups are required (or forbidden) to use. Any Israeli citizen can vote in elections and serve in the government; indeed, Israel's government includes Arab members who oppose Israel's existence. 

Anyone who is concerned about post-South Africa examples of "apartheid states" should carefully research, among others, Iran, Saudi Arabia, and Syria. Can anyone vote and run for office in those countries? Can anyone become a full-fledged citizen of those countries? Are the rights of women and minorities respected in those countries? If you truly care about "apartheid states" and if you are truly committed to fighting racism and oppression, then you either know the answers to those questions, or you will find out the answers and then base your actions on a foundation of knowledge, not propaganda.

The United Nations Genocide Convention, formed in 1948 in direct response to the Nazi genocide of six million Jews during the Holocaust, defined genocide as consisting of two main elements:

1. A mental element: the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"; and
2. A physical element, which includes the following five acts, enumerated exhaustively:
   • Killing members of the group
   • Causing serious bodily or mental harm to members of the group
   • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
   • Imposing measures intended to prevent births within the group
   • Forcibly transferring children of the group to another group

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Israel has never expressed or displayed an intent to destroy any group of people. In fact, the Arab population west of the Jordan River has increased tremendously since Israel's founding in 1948, and the standard of living for Arabs in Israel is higher than the standard of living for Arabs in other countries in the region, so accusations of Israel's alleged genocide are refuted by publicly available data. The 2014 book Industry of Lies cites various official UN and CIA demographic reports setting the record straight. To cite just a few examples from the book, in 1967 the life expectancy for a Palestinian Arab in the West Bank and Gaza was just 49 years. By 1975 (i.e., after those territories had been under Israeli administration for eight years), Palestinian Arab life expectancy rose to 56 years, and by 1984 it had risen to 66 years. Since 1984, Palestinian Arab life expectancy in those territories has climbed to 75 years, which is not only higher than the global average life expectancy but it is higher than the life expectancy in many Arab countries and even some European countries. In addition, Israeli Arabs have the highest life expectancy in the Mideast.

Further, another measure of genocide is infant mortality, which has been steadily and dramatically improving since 1967 in areas under Israeli administration. In addition, the combination of high birth rates and low death rates among Palestinian Arabs in Gaza put that territory near the top of the world in population growth. 

Remember, by definition genocide refers to an intentional policy to destroy a group of people. The definition is clear, and the data clearly shows that there is no genocide being committed by Israel. 

Here are some other data points to consider: under Jordanian occupation, only four out of 708 Arab towns and villages in the administered territories had modern water supply systems and running water, but just five years after Israel gained control of those areas the fresh water sources grew by 50 percent and has continued to grow. By 2004, 641 Arab communities in those territories—accounting for 96 percent of the population—had running water. Israel accomplished this infrastructure development for Arab communities despite the reckless PLO and Hamas mismanagement of those communities after Israel handed over some of those areas to the PLO. "One of the driest countries on Earth now makes more freshwater than it needs," declared Scientific American.

It is worth noting that the Jewish communities in the Arab/Muslim world--communities which in many instances predate the birth of Islam--have all but vanished due to massacres and expulsions inflicted on those communities by Arab/Muslim countries after the creation of the modern State of Israel. There is indeed apartheid and genocide in the Middle East, but those evils are not being committed by Israel.

It is a vulgar and despicable inversion of historical truth to slander Israel with the accusation of apartheid and genocide--the very crimes committed within living memory against Jewish people by the Nazis. You may think that if you are not Jewish or Israeli then you don't need to be concerned about what is said about Jews or Israel, but when truth is distorted and mutilated everyone suffers. Destroy the meaning of apartheid and genocide and you are not just harming Jews and Israel: you are harming the real victims of apartheid and genocide both historically (by distorting the reality of their suffering) and currently (by focusing on Israel and thus ignoring the real genocide perpetrators). The term "useful idiot" is not harsh enough for those who perpetuate such slander.

The Historical and Legal Background of the Sheikh Jarrah Issue

The deep Jewish connection to Israel in general, and to the specific areas involved in the much publicized property dispute, are ignored or dismissed by most media outlets. Familiarize yourself with the history of Shimon HaTzadik (Simon the Just), a Jewish priest who lived four hundred years before the Common Era began and more than 1000 years before the birth of Islam. Jews have long made pilgrimages to his tomb. More recently, in 1948 Arab terrorists massacred 78 Jewish members of a hospital convoy traveling to Hadassah Hospital, which is located near the Sheikh Jarrah neighborhood. The hospital convoy clearly displayed neutral markings, and attacking such a convoy is a war crime. 

When discussing history, it is important to be very clear about who are the aggressors and who are the victims. Arab/Muslim countries and organizations have repeatedly and publicly stated their goal to destroy Israel; Israel has no such policy or goal regarding Arab/Muslim countries. Areas under Arab/Muslim control are swiftly rendered Judenrein in the spirit of the Nazis--who many Arab/Muslim leaders supported during Hitler's reign of terror and until this day--while Israel accords full equality to her Arab citizens.

Sheikh Jarrah: A legal background provides a useful primer on the eviction case that has been working its way through the Israeli court system for decades. Here are a few bullet points, but the entire article is worth reading:

What is the historical significance of the area?

Jews refer to the area as "Shimon Hatzadik," "Simeon the Just," a revered third-century BCE Jewish High Priest whose tomb is located there. The neighborhood is often visited by Jewish pilgrims.

Palestinians claim the area derives its name from Sheikh Jarrah, a physician to Saladin, the Islamic military leader who fought the Crusaders in the 12th century. His body is believed to be buried there.

Prior court rulings

Key points:

• The residents are protected tenants and must pay rent to the property's owners.

• The residents never paid rent and carried out illegal construction on the property. The court previously ordered the residents to pay the outstanding rent and to immediately evacuate the illegally constructed additions.

• The court rejected claims that the Jordanian government had committed to transferring ownership to the residents and that this commitment never came to fruition due to the outbreak of the Six-Day War. The only document ever provided as evidence was a copy of an unsigned standard Jordanian Department of Housing form, that did not contain any agreement regarding the transfer of rights.

• The court rejected claims that a resident purchased ownership rights from a man named Ismail. The claimant could not demonstrate that Ismail had been the property’s owner, that he had purchased the property from him or that the claimant had ever been a protected tenant at the time of the alleged sale.

The current state of legal proceedings

Following the judgment of the Jerusalem District Court in February 2021, upholding an earlier court decision that, in the absence of payment of rent, the Palestinian residents must vacate the premises, the tenants appealed to the Supreme Court, with a final verdict expected in the next month.

In Almost Nothing You've Heard About Evictions in Jerusalem Is True, legal scholars Avi Bell and Eugene Kontorovich analyze the court case: 

Hamas never needs a special occasion to bombard Israel with rockets. Yet the progressive narrative connects the terrorist group's current onslaught to eviction proceedings in Israeli courts concerning a few properties in the Jerusalem neighborhood of Sheikh Jarrah. Sens. Bernie Sanders and Elizabeth Warren claim these are stark human-rights violations by the Israeli government, and illegal under international law. Even the State Department expressed "serious concern."

The truth about Sheikh Jarrah is the opposite. It is an ordinary property dispute between private parties. The Jewish claimants' ownership of the few plots of land has been confirmed repeatedly in court, following laws that apply equally regardless of ethnicity. Israeli courts have gone out of their way to avoid evicting the Palestinian residents who haven't paid rent for half a century.

In the case now before Israel's Supreme Court, the owner is an Israeli corporation with Jewish owners whose chain of title is documented back to an original purchase in 1875. Until 1948, the neighborhood now known as Sheikh Jarrah was home to both Jewish and Arab communities. Jordan invaded Israel in 1948 and occupied half of Jerusalem, expelling every one of its Jewish inhabitants and seizing their property.

When Israel reunited Jerusalem and ended the Jordanian occupation in 1967, it had to decide what to do with these properties. In the many cases in which Jordan had officially transferred the title of Jewish-owned properties to Palestinians, Israel respected the new titles—and still does—even though they are based on forcible takings in a war of aggression followed by ethnic cleansing against Jews. Where title had never been transferred, however, Israel returned properties to their owners. Critics of Israel claim that Arabs can't recover property under the same law, but the law is entirely neutral—it is simply the case that Jordan took property from Jews, not Palestinians. 

The link in that excerpt goes to a five page paper providing background and documentation regarding the Sheikh Jarrah case. Anyone who wishes to speak intelligently about this issue should read the entire paper, but here is a key excerpt:

Many of the media accounts of the recent court judgments regarding the properties in Sheikh Jarrah have distorted the facts. Contrary to claims in some media accounts, Israel did not grant anyone ownership to any of the affected properties on the basis of ethnicity. Israeli law respects and upholds the property rights of persons of all ethnicities. Israel has even respected the property rights created by prior regimes that explicitly discriminated against Jews in their property laws—the Ottoman Empire, the British Mandate of Palestine, and the Jordanian occupation regime.

Contrary to claims in some media accounts, Israel has not created different rules for "enemy property" based on ethnicity. The ethnic dimension to the current-day property disputes is historic discrimination against Jews by a country other than Israel: Jordan denied Jews all ability to exercise property rights during its illegal occupation of east Jerusalem 1948-1967. Israel has declined to continue Jordan's discriminatory practice, but it has respected the legal results of Jordan's actions. Ironically, Israel has been so respectful of the private property rights of Palestinian Arabs that it continues to uphold private Palestinian Arab property rights that are based on Jordanian discrimination against Jews.

You might ask look at the above material that contradicts so many popular media narratives, and ask, "What about the other side of the story?" In any court case, obviously there are two sides; that is why the rule of law requires both sides to present evidence. The evidence presented thus far in this case is described above. 

Any notion that the Israeli government or Israeli courts always side with Jewish people against Arab people is easily refuted, as noted above; the Israeli government and Israeli courts have often limited Jewish access to particular areas, and have also ruled against Jewish claimants in various property disputes. It is not difficult to make a credible argument that, if anything, the Israeli authorities bend over backwards to accommodate Arab claimants. Israel has a special, official organization (The Custodian of Absentee Property) dedicated to addressing land claims made by Palestinian Arabs, and that organization has paid out more than 10,000,000 NIS (New Israeli Shekels) to settle nearly 15,000 claims, while also providing over 54,000 dunams of replacement land. The reality is that land claims supported by evidence result in compensation. What other country in the world provides such extensive compensation for claims made in the wake of numerous wars started with the express purpose of destroying that country? Israel is not responsible for the murderous actions of her neighbors, or the chaos and destruction left in the wake of those murderous actions, but Israel has consistently acted with compassion regarding the difficult situations that have arisen after wars have shifted borders and displaced people.

As demonstrated above regarding Sheikh Jarrah specifically, the tenants have not presented any credible evidence against the proposed evictions. Further, Hamas' war crimes and crimes against humanity against Israel have nothing to do with any specific dispute, but are part of an ongoing campaign to commit genocide against Israel.