Israel, Apartheid, and Lawyerly Fools (Or: Pettitfoggery)

About once every couple of months I receive an email from a long-time antagonist and reader of my work, Chris Pettit. He used to have a significant presence in the comment boards over at Rebunk, but does not often grace us with his presence at dcat. Our loss is, well, actually we're talking all gain.

This morning the pattern repeated itself. It is always the same thing -- Chris sends along an article, and adds a little blurb basically telling me I am wrong about just about everything largely because I am not an international lawyer, which Chris is, as he'll happily tell you like a two-year-old prattling on in the only five words she knows.

But rather than describe, why not just use the evidence before me. (Note: If you send me an email that consists pretty much of ad hominem attacks geared toward me, and if that is the first email I open when I get up in the morning, my rule is that your email is fair game for public airing.)

He sent me the text to this story. The essentials are that the respected South African legal scholar John Dugard who is also the UN's special rapporteur on human rights in the Palestinian territories has compared Israel to Apartheid South Africa. I disagree, and will go into much greater detail below.

But here is what Chris added, exactly as it appeared in my inbox:

would love to see you try and spin this...you know who Dugard is...and I was one of his students...we both know he is one of the preeminent international legal minds in the world..even if you don't listen to my valid critiques you have to accept his as coming from an expert in a field you have no authority in...isn't it about time you came in from the cold?

Ahh, yes. Note the arrogance! The self importance! The name dropping! The syntax! Naturally I responded. Here is what I wrote:

Chris --
I know well who John Dugard is. And respect him very much. But when you say that I have "no authority in" the field in question, what are you talking about? I have a PhD in history, and this is a historical question. I have written extensively about South African history and I have written enough about Israel to have a pretty good sense of the realities on the ground. I have as much "authority" as Dugard does inasmuch as we both know, or ought to know, that "argument by authority" is one of the basic logical fallacies they teach you in any logic class.

You are exhibit A for why people hate lawyers. Out of the blue you email me a provocative and, yes, in its way worthwhile article, and then use your self-asserted authority to tell me, a professional historian, that a lawyer has more standing on a historical analogy than I do, indeed that I have no authority at all on this issue. The world is not a courtroom, Chris. And you are not its prosecutor. And even the most well respected legal minds can be wrong, especially when they overstep their boundaries.

I'll gladly debate this issue with you, with John Dugard, with Jimmy Carter and with anyone else who tosses out the Israel-as-Apartheid analogy. I'll gladly do it publicly. I'll gladly grant historians equal validity with lawyers on this question (I'd privilege historians, except I prefer to keep my onanism behind closed doors. Try it sometime.). But you are not into honest debate. You would rather snipe from the corners, hectoring those who disagree with you by hiding behind the judicial robes of your mentors and in the logical fallacies that allow you to assert supremacy where you have not earned it. I make no claims to authority on this matter. I make claims to have an argument that I feel comfortable defending. The very fact that Dugard wants to engage in international prosecution of Israel proves what I have argued all along: That those who toss out the Israel-as-Apartheid analogy do so not to shed light, but as an accusation. It is an argument loaded from the outset, and it is an argument I reject.
dc"

Now on to the content of the article. I'll parse paragraph by paragraph. I will place the article in quotation marks and will precede my comments with ***:

"A UN human rights investigator has likened Israel's occupation of the Palestinian territories to apartheid South Africa and says there should be "serious consideration" over bringing the occupation to the international court of justice."

*** So as I said, this is not an attempt at inquiry. This human rights investigator represents a body with a long and distinct history of siding against Israel. And he comes as a law professor advocating prosecution. He has an agenda. That is fine. But let's not pretend that it makes him a disinterested broker seeking truth.

"The report by John Dugard, a South African law professor who is the UN's special rapporteur on human rights in the Palestinian territories, represents some of the most forceful criticism yet of Israel's 40-year occupation."

** I assume we are talking less forceful than, say, Nasser's assertion that the Arabs were going to drive the Jews to the sea prior to the Six Day War and less forceful than Hamas' refusal to recognize Israel's right to exist? Hamas wields a bit of power in the current Palestinian configuration by the way. But yes, the criticism coming from Dugard is forceful. And he does come to criticize. He also is a law professor, which, as we've learned from Chris Pettit, is the highest form of life, with international law professors at the top of the food chain.

"Prof Dugard said although Israel and apartheid South Africa were different regimes, "Israel's laws and practices in the OPT [occupied Palestinian territories] certainly resemble aspects of apartheid." His comments are in an advance version of a report on the UN Human Rights Council's website ahead of its session next month."

*** How kind of him to pause to recognize that Israel and apartheid South Africa were different regimes. Next: John Dugard acknowledges that water is made of two parts hydrogen and one part oxygen. But don't you believe it until he brings that truth. In any case, note that word "resemble." If I may play litcrit theorist for a moment, what does it signify? OK, enough litcrit jargon. In this context "resemble" is a sloppy word used sloppily. Lots of things resemble others. Kansas resembles Colorado. Peter Gammons resembles Andrew Jackson. Kiwis resemble muddy golf balls. But only a fool would travel to Kansas for a ski weekend. Only a fool would want Andrew Jackson's opinion on Curt Schilling's contract status. And only a fool would try to use a sandwedge on a kiwi. I'm no lawyer, but the burden of proof might require something a bit stronger than a resemblance proferred by someone arguing that the resemblance warrants prosecution.

"After describing the situation for Palestinians in the West Bank, with closed zones, demolitions and preference given to settlers on roads, with building rights and by the army, he said: 'Can it seriously be denied that the purpose of such action is to establish and maintain domination by one racial group (Jews) over another racial group (Palestinians) and systematically oppressing them? Israel denies that this is its intention or purpose. But such an intention or purpose may be inferred from the actions described in this report.'"

** Here's the thing. Dugard's entire argument hinges on the following words: "Can it seriously be denied . . .". Everything that follows his attempt to bully through language requires that one buy the assertion that there is only one serious side of this argument. In fact the "racial group" argument tends to fall flat on its face because, and here is the kicker: Jews are not a race. Well, other than for those who want to see them eradicated. And I'm not certain whether Palestinians qualify as a race in any meaningful way. Furthermore, yes, it can be seriously doubted that this is merely a racial matter in light of the well more than one thousand dead Israeli civilians from suicide bombers coming from the territories since the September 2000 declaration of the second intifada. Ignoring the political realities on the ground makes me, well, question your seriousness. We'll ignore the horribly turgid final sentence in that last paragraph. Actually I change my mind -- that is a horribly turgid final sentence in that last paragraph.

"He dismissed Israel's argument that the sole purpose of the vast concrete and steel West Bank barrier is for security. 'It has become abundantly clear that the wall and checkpoints are principally aimed at advancing the safety, convenience and comfort of settlers,' he said."

*** Well, he dismissed the argument. That's it then. Discussion over. Oh, hold on -- we still have those dead Israelis. Vexing, they. Because the timing -- the chronology, the sequences of events (though though I'm no authority, no lawyer, on such things) matters. And in that sequence of events we have many years of Israeli governments pushing for, negotiating for, peace. We also have many years of Israeli governments trying the iron fist approach. All of this antedated the building of the Wall. So to assert that the wall has no relation to security is to claim that there are no security issues for Israelis to worry about. Let me tell you about a wonderful beach front bar in Tel Aviv called Mike's Place . . .

"Gaza remained under occupation despite the withdrawal of settlers in 2005. 'In effect, following Israel's withdrawal, Gaza became a sealed-off, imprisoned and occupied territory,' he said."

*** More lawyerly verbiage: "In effect." Beyond the disputable nature of the assertion, let us keep in mind more of the realities on the ground -- Hamas is in charge in Gaza. Hamas has repeatedly called for the destruction of Israel. In the intervening months since Israel's withdrawal from Gaza (for which Israel was criticized for acting "unilaterally," just as they were criticized for staying in the territories. No win.) missiles have regularly come across the Gaza border aimed at Israeli citizens in Israel. These missiles did not have as their intended target Israelis in Gaza. Nor have suicide bombers from Gaza had as their targets Israeli settlers. They have had as their targets people living in Israel proper, which even the UN continues to recognize, at least for the time being, even if Hamas will not. Maybe, just maybe Dugard's prosecutorial zeal makes him look at the issue with a jaundiced eye. A lawyer selectively use evidence? I'm aghast too. But this is what it has come to. I guess we'll never be innocent again.

"Prof Dugard said his mandate was solely to report on human rights in the occupied Palestinian territories and he described as a violation of international humanitarian law the firing of rockets by Palestinians from Gaza into Israel. 'Such actions cannot be condoned and clearly constitute a war crime,' he said. 'Nevertheless, Israel's response has been grossly disproportionate and indiscriminate and resulted in the commission of multiple war crimes.'"

*** Finally. At least he recognizes the "war crimes" of the Palestinians. Yet I'm not so certain that Israel's response has been "disproportionate" and I believe this is an area in which honest people can engage in honest debate. But on this issue John Dugard, like Chris Pettit, is not an honest broker. Putting on a prosecutor's robes does not make one an impartial observer -- it does quite the opposite. Favoring some evidence over others is a lawyer's job, to be sure. But knowing as much, I think we are entitled to question whether or not we should privilege lawyers on such matters.

The article I have excerpted is, in its entirety, what Chris sent me, which allowed him to assert that I have no "authority" on such matters. But what I am seeking is not authority. Authority may be the least interesting facet of all of this. Instead I seek something far more important. I seek truth. Among the many differences is that I understand my own fallibility. I also don't cower behind someone else's reputation, which blinds me to their problematic assertions, and I don't claim "authority" where I have none and where "authority" is not at all the issue.