UN expert: ‘Apartheid is in front of your eyes everywhere you go’

Francesca Albanese discusses the recent attacks against her, defining Israel's occupation as settler colonialism, and using international law to dismantle it.

Francesca Albanese, the UN Special Rapporteur on the occupied Palestinian territories. (Courtesy)
Francesca Albanese, the UN Special Rapporteur on the occupied Palestinian territories. (Courtesy)

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Shortly before agreeing to take the role of UN Special Rapporteur on the Palestinian Territories, Francesca Albanese received a piece of advice from an Israeli friend: go to Israel-Palestine now, because soon you will not be allowed to enter. Albanese, who knew the country well after living in Jerusalem and working for the Palestinian refugee aid organization UNRWA for three years, heeded his advice and went. This was indeed her last trip, at least for now; since her appointment in April 2022, Israel has barred her from entering.

In an interview from her place of residence in Tunisia, where she stays with her family for work, Albanese, an Italian legal scholar, says that although she could have come to Israel with her Italian passport, in Israel she was told that she had to apply for a special visa. Among supposedly democratic countries, she says, Israel is the only one that prevents the entry of one of the 55 UN rapporteurs spread throughout the world. Even Afghanistan under Taliban rule allowed rapporteurs to enter its territory.

Israel opposed Albanese’s appointment in advance, partly because it “praised the organizations that accused Israel of being an ‘apartheid state.’” The fact that she worked at UNRWA, and co-authored one of the comprehensive books on the rights of Palestinian refugees under international law, did not help either. Her first UN report, published in September 2022, was quickly followed by accusations of antisemitism.

The “evidence” for this was a post she wrote during Israel’s war on Gaza in 2014, long before she was appointed to the position, saying that the United States is “subjugated by the Jewish lobby.” Albanese publicly distanced herself from those comments, saying that “Some of the words I used, during Israel’s offensive on the Gaza Strip in 2014, were infelicitous, analytically inaccurate and unintendedly offensive.” Albanese herself rejects any allegation of antisemitism.

Albanese’s report argues that the Israeli occupation violates one of the fundamental principles of the United Nations and the international community: the right to self-determination. Although she writes that Israel maintains an apartheid regime in the occupied territories, she believes that the effectiveness of using the apartheid framing against Israel is actually limited; rather, she writes, the regime has clearer characteristics of settler colonialism. And because the very idea of the United Nations is premised on the liberation of peoples on the basis of the right to self-determination, the most direct way to ending the occupation is the insistence on this exact right.

Voting at an emergency UN General Assembly meeting in New York City on Jerusalem's situation following U.S. President Donald Trump's declaration recognizing Jerusalem as the capital of Israel, December 21, 2017. (Amir Levy/Flash90)
Voting at an emergency UN General Assembly meeting in New York City on Jerusalem’s situation following U.S. President Donald Trump’s declaration recognizing Jerusalem as the capital of Israel, December 21, 2017. (Amir Levy/Flash90)

Although a recent decision by the UN General Assembly to request an advisory opinion on the occupation’s legality from the International Court of Justice (ICJ) is not based on Albanese’s report, it is likely that the findings will be used by the court in its proceedings. The question, from her point of view, is not whether the occupation will be declared illegal; the real question is what kind of steps the court will recommend member states take in order to bring the occupation to an end.

This interview has been edited for length and clarity.

Why did you think it was not useful to use the definition of apartheid in the effort to end the Israeli occupation?

That’s not what I said. I said: the definition of the regime that Israel maintains in the occupied Palestinian territories as apartheid is practically and legally correct. This does not mean that it does not exist within Israel, but it is not part of my mandate as part of the United Nations that covers only the documentation of violations of international law in the territory that Israel has been occupying since 1967. I also don’t understand why people are so amazed at this; it’s so obvious, it’s in front of your eyes everywhere you go.

At that time I said, and this is a key point in my analysis, that it was necessary to demand the end of the apartheid regime, but that this should be accompanied by the awareness that Israeli sovereignty should not be automatically recognized beyond the borders on which the State of Israel was recognized in 1948. I understand why people began to support the one-state solution. Whether there should be one or two states is not for me to say, on this issue I am agnostic. But there is an intermediate stage that cannot be escaped, and that is the right of the Palestinians to decide their own fate.

Until now, [the Palestinians] have made many concessions in order to preserve the possibility of an independent state. We cannot allow ourselves to say that this is no longer possible, especially since the international community insists that this is the only way. If that’s the case, let’s implement it, and the law is very clear what this entails: the key is the right to self-determination, that is, liberation from Israeli control.

Do you really think this is a more practical way to pressure Israel to end the occupation?

I don’t think I’m offering an alternative paradigm. The right to self-determination is another piece of the puzzle, which gives meaning to the apartheid framework. The occupied territories are not just like South Africa, they’re like Namibia. Namibia was occupied militarily [by the South African apartheid regime], and there was an ICJ advisory decision that said this occupation was illegal. The comparison with Namibia is useful for understanding the legal consequences of an illegal occupation, and the necessity to dismantle the occupation unconditionally. This does not mean not taking into account Israel’s security concerns.

General view of the Jewish settlement of Karnei Shomron, in the West Bank on June 4, 2020. (Sraya Diamant/Flash90)
General view of the Jewish settlement of Karnei Shomron, in the West Bank on June 4, 2020. (Sraya Diamant/Flash90)

Israel cannot guarantee the protection of the Palestinian people. The occupation must withdraw, and in its place a temporary, international and independent force must enter, a protective force, which will give security to citizens on both sides, while the military occupation and the colonial project are dismantled. There are also 700,000 Israeli citizens in the occupied territories [including East Jerusalem]; if they remain, it means they want to live in peace with their Palestinian neighbors.

I was surprised to hear from you that even according to international law, it is not necessary for these people to be evacuated.

A ruling has developed in international law, for example in the case of Cyprus, which says that after years of living in a place, the people there acquire rights. This is something that needs to be decided on. What is clear is that the land taken from the Palestinians since 1967 should be returned to them, there cannot be martial law or presence of the Israeli military, and Israel will not be able to provide [settlers] with services, subsidies, or protection. Whoever chooses to stay will be a minority under the laws of the State of Palestine.

Are the methods of the Israeli occupation unique?

They are not unique, but they are very much related to settler colonialism. I’m sorry, I know Israelis don’t like this concept. We know about Masafer Yatta, we know about home demolitions, but the bureaucratic aspects [of the occupation] are less well known around the world: banning people from building, banning them from entering or leaving.

I am now looking at the way Israel administers incarceration in the Palestinian territories. It is horrifying to see such a wide-ranging incarceration method, which is used as a deterrent, as a way of collective punishment, as a way to break the spirit, relationships, and the social fabric. And this method has been used for 55 years. Administrative detention is very unique to Israel. I’m not saying it doesn’t happen in other places, but massively — on such a huge scale — yes, it’s unique. I do not think people around the world understand this.

Israeli soldiers arrest a Palestinian youth during clashes between Palestinians and Israeli soldiers in the West Bank city of Hebron, September 9, 2022. (Wisam Hashlamoun/Flash90)
Israeli soldiers arrest a Palestinian youth during clashes between Palestinians and Israeli soldiers in the West Bank city of Hebron, September 9, 2022. (Wisam Hashlamoun/Flash90)

Speaking of settler colonialism, in his article in Haaretz, Israeli human rights attorney Eitay Mack criticized you harshly for a passage in your report in which you wrote that “political Zionism saw Palestine as a land in which to establish a state for the Jews through settlement and colonialism.” Can you understand why this is seen as a denial of the historical connection of Jews to Israel? As if the Jews looked at the globe and said: here is a nice place, let’s go and settle there. Was that a mistake?

I thought a lot, read, studied, and spoke to people, and I think that yes, in this particular paragraph, I cut corners. And I understand now that one simple sentence that acknowledges that there was a Jewish history in this land would have made it easier to accept and understand my report. I should not have contented myself with just mentioning, in a footnote, that there was a Jewish community that made up 10 percent of the inhabitants of Palestine at the end of the 19th century. Acknowledging that I could have emphasized this connection does not invalidate the rest of the report; nothing about this connection gives legitimacy or enables what Israel is doing in the occupied territories.

Those who accused me of antisemitism with the aim of attacking both my mandate and me personally do not deserve a moment of my time. But a person like Mack — whom I deeply admire, and I hope we will continue to work together because we have an important mission — I think he did not understand the context and the message of my analysis.

I could have been more sensitive. Not strategically, because for me it’s not a strategy to please people from one side or the other — it’s a matter of objectivity, of conscience. As soon as you don’t acknowledge a thing as such, it means that you leave a large part of the people’s history out. Still, I don’t understand why people become so upset when they hear the word “colonialism.” It appears in the writings of the founding fathers of Israel; [Ze’ev] Jabotinsky himself spoke of “colonization.”

The concept of settler colonialism is very difficult for Jews in Israel and around the world to digest. Why did you choose to use it?

I’ll remind you that my analysis is limited to 1967. Israel is violating the fundamental principle of the Palestinian people’s right to self-determination, and it is doing it in a way that aims to cleanse as much territory as possible of Palestinian presence and identity. This is escalating with the new government: taking more territory for the benefit of Jewish Israelis alone, exploiting economic resources, suppressing cultural and political identity.

Israeli security forces demolish Palestinian houses in the village of Sair, near the West Bank city of Hebron, August 5, 2020. (Wisam Hashlamoun/Flash90)
Israeli security forces demolish Palestinian houses in the village of Sair, near the West Bank city of Hebron, August 5, 2020. (Wisam Hashlamoun/Flash90)

These things are consistent with the model and practices of settler colonialism in South Africa, Algeria, Canada, in many places. Sometimes settler colonialism won, sometimes it did not. And when I hear the voices of former soldiers, mothers who lost their sons, people in Israel who live in constant fear of missiles, I understand that the occupation comes at a very high price for Israelis as well.

Should the court declare the Israeli occupation illegal, could it be a turning point in the way the international community deals with it?

I greatly respect and have great confidence in the independence of the judges of the court. I am not the only jurist who is warning that the Israeli occupation is illegal. It is illegal because it is not temporary, it is not managed for the benefit of the protected population, and because it has turned into annexation of the territory. There is also literature that says the occupation is illegal because it also applies apartheid [to the area].

My contribution is that its very existence is incompatible with the right to self-determination, and this has an impact on the entire international community. It is an obligation that cannot be evaded, there are no deviations from it, even with regard to third countries. The turning point for me is that the tribunal, I hope, will help clarify what the consequences are, what steps third countries should or should not take to bring about an end to this situation.

So if I understand you correctly, what is important is not only the declaration that the Israeli occupation is illegal; this goes without saying. The important thing, in your eyes, is what steps UN member states will take to bring this situation to an end.

Yes — what will be the legal consequences, because the [law] is very specific about those consequences. Let’s think about Ukraine. Would we need a court ruling to determine that the occupation of Crimea is illegal, or to declare that the war that Russia is waging in Ukraine runs contrary to international law? No, because Ukraine is a sovereign country, and in a sovereign country, sovereignty lies with the people. People say, ‘But there is no country there’ [referring to Palestine]. No, there is a State of Palestine, but it was born in captivity, and was never allowed to flourish. And even before that, there was a Palestinian people and its sovereignty as a people — as a legal entity — has been recognized since 1919.

A Palestinian woman waves a flag in front of the Israeli Flag March on Jerusalem Day at Damascus Gate, Jerusalem, May 29, 2022. (Oren Ziv)
A Palestinian woman waves a flag in front of the Israeli Flag March on Jerusalem Day at Damascus Gate, Jerusalem, May 29, 2022. (Oren Ziv)

Here I hope the court will be helpful and provide guidance. What is important is to recognize the current situation: this is not a war between two countries, this is an occupation. There is a law that obliges every UN member state not to recognize an illegal situation. For example, settlements constitute a war crime according to international law; therefore, any [product] that comes from the settlements must not be treated as normal. It is not enough to put a label on it that it originated from the settlements, it must be strictly prohibited in international markets. One must not abet anything an illegal occupation does.

I understand that many countries, including my own, say “we are friends of Israel.” No, you are not friends of Israel. It is not a good thing to insist on staying on the path of illegality and impunity, and it has nothing to do with friendship. This is not in the interest of the Israeli people, and I insist on that.

Where do things stand regarding your entry into Israel?

Let’s be clear: I never asked to enter Israel. I must enter a territory that Israel occupies and does not have sovereignty over. Of course, I have an interest in coordinating my visit with the Israeli authorities as the occupying power. Previous rapporteurs flew to the occupied territories with their passports without having to ask for any prior consent. If they want me to apply, I will apply. I still think it is my right to announce my visit, to reach the border, and that my entry be allowed. The only thing is that they cannot guarantee my security 100 percent. I will take care of it myself. I’ll take the risk.

I did not press them, and for two months I did not hear anything from the Israeli authorities. This is very disrespectful. I did not stop working. I had meetings in Amman, but I also had [online] meetings with Palestinians and Israelis. I met with minors who were in detention, with parents of children who were killed by Israeli fire and whose bodies were never returned. Israelis and Palestinians took me on virtual tours. If Israel thinks it will stop me from reaching information, it is wrong.

I find that, in a strange way, the war against me creates opportunities for me to come into contact with Israelis, because people are curious. I would not have received such exposure if my mandate had not been so controversial. Before they talk to me, people think I am some kind of diabolical creature whose sole purpose is to tarnish Israel and Israelis. Then they talk to me and realize that I am an ordinary human being. A lawyer who investigates the facts, analyzes them, and comments on them from a legal point of view. I may be wrong, like any person, but there is within me a deep, true, and sincere desire to see that international law is implemented in this tortured country. Because I really see the potential for the people to live in peace. I really see it, and I see no other way to get there but through respect for the law.

A version of this article first appeared in Hebrew on Local Call. Read it here.