Israeli voters returned to the polls this week for the second time in five months to elect the 120 members of the Knesset, the country’s legislative body. The outcome remains too close to call, but it looks like Benjamin Netanyahu, the country’s longest-serving Prime Minister, may be denied a majority. His likely successor is former army chief of staff Benny Gantz of the Blue and White Party. Yet missing from so much of the international conversation is the fact that five million Palestinian residents of the occupied territories remain unable to vote in elections that could determine their future. Given that Gantz, like Netanyahu, has adopted bellicose rhetoric toward Palestine in the past, can they really expect things to change? Noura Erakat, Palestinian American legal scholar and author of Justice for Some: Law and the Question of Palestine, joins Mehdi Hasan to discuss whether it’s fair to describe Israel as an apartheid state.

Noura Erakat: This is an Israeli society where all parties benefit from describing who will punish and who will subjugate and who will oppress Palestinians the most and the most harshly.

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Mehdi Hasan: Welcome to Deconstructed. I’m Mehdi Hasan. Lindsay Graham once compared picking between Donald Trump and Ted Cruz to having to choose between being poisoned or being shot. I wonder if Palestinians feel that way this week after the latest Israeli election results – which could see racist warmonger Benjamin Netanyahu replaced by yet another racist warmonger, opposition leader General Benny Gantz.

NE: The differences that they have in terms of policy towards Palestinians are absolutely non-existent.

MH: That’s my guest today, the Palestinian American lawyer, author and activist Noura Erakat. The big question I want to ask her is: regardless of these non-stop elections, is Israel an apartheid state?

Is Benjamin Netanyahu, Israel’s longest-serving prime minister and proud unabashed racist, on his way out of office? At this moment in time, as I’m speaking to you, it does seem to look that way.

Robin Roberts: Israel is on edge this morning as results come in showing Prime Minister Benjamin Netanyahu and his opponent dead-locked.

Elaine Quijano: Several early exit polls suggest Prime Minister Benjamin Netanyahu’s reelection bid might fall short.

John Vause: Israel’s longest serving prime minister might end up being replaced by a political newcomer.

MH: On Tuesday, Israel held its second election in less than six months, its fourth election in just six years. The Israelis seem to have gotten into the habit of going to the polls. A lot. And they often of course pat themselves on the back for being the only democracy in the region – as if Tunisia and Lebanon just don’t exist. And, perhaps more crucially and more offensively, as if the Palestinians in the occupied territories don’t exist. Remember: Six and a half million Jewish Israelis have the right to vote in Israeli elections. That includes the 600,000 Jewish settlers living illegally in settlements across the occupied West Bank and East Jerusalem.

In addition to those six and a half million Jewish Israelis, one and a half million Palestinian citizens of Israel, living in Israel proper, are able to vote, too. But 5 million Palestinians living in the West Bank, East Jerusalem, and Gaza, in territories occupied and colonized by the Israelis for more than 50 years now, are not allowed to vote in Israeli elections. Five million. Which means that less than a quarter of the Palestinians who live in that disputed part of the world, who live between the Jordan River and the Mediterranean Sea, whether in Israel proper or the Occupied Territories, whose everyday lives are controlled by Israel, and have been for decades now, only a quarter of them have a say over which political party or prime minister controls their lives. The vast majority of Palestinians don’t get a say. Don’t get a vote. There’s a word for that, isn’t there?

As for the Palestinian citizens of Israel, who do get to vote, it’s worth pointing out two things. Number one, pretty much every independent study and expert agrees that yes, they have the right to vote but they’re also treated as second-class citizens and subjected to a raft of discriminatory laws and policies, from where they can live to who they can marry. In fact, for the first 18 years of Israel’s existence, right up until 1966, for the first quarter of Israel’s existence as a state, Palestinian citizens were forced to live under military rule, under martial law.

And number two, yes, Palestinian parties do take part in Israeli elections and get elected to the Israeli parliament, the Knesset. In fact, this time round, it looks like they’ve done better than expected and may even be on course for the first time in history to be the main opposition bloc to any kind of national unity government that might be formed between Netanayhu’s right-wing Likud Party and the supposedly centrist Blue and White opposition party. But Palestinian parties or lawmakers have never been asked to join any one of the numerous Israeli coalition governments that have been formed in that country in recent decades. National unity doesn’t include Palestinians, it seems. In fact, this is what Netanyahu said in his non-concession speech on Tuesday night:

Benjamin Netanyahu [translated to English]: There can’t be a government that relies on the Arab parties. Parties that negate the very existence of the state of Israel.

MH: There you have it, from the horse’s mouth, from Israel’s longest-serving prime minister: “There can’t be a government that relies on Arab parties.” There’s a word for that, isn’t there? Even outside of the occupied territories, therefore, even inside the so-called Green Line, there has always been, for Israel, a massive tension between being Jewish and being democratic – even though progressives and liberals here in the United States have turned a convenient blind eye to that tension.

The reality is that the phrase “Israeli democracy” should always be used inside of quote marks, or at least with a question mark at the end of it. But here’s the question I want to try and get to the bottom of today, and it’s an important and deeply contentious one: if Israel is not a Western-style liberal democracy, with equality for all, what is it then? Is it an apartheid state, as so many of its critics maintain? Or is it merely guilty of engaging in apartheid practices in the Occupied Territories alone?

And if apartheid is what’s going on over there, if state-sponsored racism and discrimination is the norm, regardless of which party or prime minister is in office, where does that leave the US-Israeli alliance, which is supposed to be built on shared values, they say? Where does that leave leading Democrats who rail against racism and inequality at home but seem to be giving it a pass in the Holy Land?

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MH: I’m joined to discuss all this by someone who knows this subject inside out, and, as the saying goes, has skin in the game. Noura Erakat is a Palestinian-American lawyer, academic, activist, and author of the acclaimed new book “Justice for Some: Law and the Question of Palestine.”

Noura, thanks for joining me on Deconstructed.

NE: Hi, Mehdi, thanks for having me.

MH: First off, before we get into some of the deeper, thornier stuff, what is your reaction, Noura, to these latest Israeli parliamentary election results and this talk of a national unity government between Benjamin Netanyahu’s Likud and the Blue and White opposition party of his chief rival, retired army general Benny Gantz?

NE: I think it’s really interesting for most people watching this that this was even framed as a center-left versus center-right. For anybody paying any kind of attention, they’re basically both in the right and the distinctions between them are minimal. The Likud is the right-wing party that is religious, Blue and White is the right-wing party that is secular. The differences that they have in terms of policy towards Palestinians are absolutely non-existent. Insofar as Netanyahu wants to annex the Jordan Valley, the Blue and White party explained that that was their idea first and Netanyahu stole it from them —

MH: Yes, yes.

NE: — And as far that they are concerned about settlements, neither of them — It just didn’t even come up in the agenda. It never came up, even in any of their campaigning as a core issue which demonstrates that Palestinians as far as Israelis are concerned are out of sight, out of mind and there is no cost to their neglect and there is no cost to their ongoing subjugation. So the difference between them is really nominal except for what it means as far as optics and the way that Israel wants to identify itself as a liberal settler democracy.

MH: I remember what Jesse Jackson used to say in the 1980s about we only have one party in this country, not two: Republicans and Republican light. It’s a very familiar kind of refrain when you look at Israeli politics. And you mentioned the annexation, I mean that was a fascinating moment in the election campaign when Benjamin Netanyahu says “I’m going to annex the Jordan Valley,” and the response from the “opposition” is “That’s plagiarism! You copied that from us.” Not that it’s illegal or immoral, or will end any kind of so-called peace process.

Isn’t it also ironic that on the day of the Israeli election on Tuesday, in the Netherlands, a Dutch court held a hearing about whether a war crimes case against Benny Gantz, who might be prime minister of Israel very soon, whether he committed war crimes in Gaza when he was in charge of Israeli forces in 2014, and whether that case is admissible in court in the Netherlands under universal jurisdiction principle? Gantz has a long history of alleged war crimes doesn’t he?

NE: Well, almost all of these Israeli generals — I mean, he was the chief of staff under Netanyahu and part of his primary campaign tactic was to promise that he would return Gaza to the Stone Age. This is an Israeli society where all parties benefit from describing who will punish and who will subjugate and who will oppress Palestinians the most and the most harshly. This is what the nature of the campaign looks like. So, there’s nothing to be gained by either party in terms of just thinking pure politics of pivoting away from this racist policy and thinking about a future of ending the occupation or far less about actually changing the nature of Israel’s racist apartheid regime.

MH: I just realized that I said to you “Gantz’s alleged war crimes,” but there’s not really anything alleged about them. He actually bragged about them earlier this year when they had the first election of 2019 back in April. He actually put out a campaign video headlined “Parts of Gaza were sent back to the Stone Age.” That was the title that he put on his own video with images of rubble and a list of how many people he killed. And yet, if he becomes prime minister in the coming days or weeks, we will have liberals in the West saying, “Oh, isn’t it great we don’t have horrible, evil, violent, Netanyahu in charge? We have moderate, liberal Benny Gantz in charge.”

NE: Well, you know on this question, I think what’s important is that the law itself of what is alleged, what Israel is doing in the Gaza Strip and what it has been doing towards Palestinians is not just “Might makes right.” What they have been doing systematically is changing the laws of war in order to make the amount of destruction and death permissible in the language of law that then they’re exporting to the rest of the world. And they do this by expanding the right of force of Israel and by shrinking who is categorized as a Palestinian civilian and they’re saying that all this legal invention is necessary because of the unprecedented nature of its warfare against non-states, except that’s absolutely false.

The international community has already contemplated this irregular combat and legislated laws of war to regulate them in the 1977 Additional Protocols which elevated the role of guerrilla or non-state combatants to soldiers and to legitimate warfare. And so, what we’re seeing Israel here do is actually create new law to permit this violence which is both colonial violence and legal violence, but refracted through a liberal framework.

MH: And just for those of you listening at home, Noura has written an excellent book that is definitely worth your time called “Justice for Some: Law and the Question of Palestine.” On the election, Noura, there’s this irony that Benjamin Netanyahu fear-mongered about Arabs voting. He incited hate against Arabs to the point where Facebook recently suspended the Prime Minister of Israel’s official Facebook page because of its incitement of hate against Arabs. I think he said on there “The Arabs are coming to annihilate us all.” And yet, Palestinian citizens of Israel turned out in big numbers to help defeat him partly because of that. The irony.

NE: Well, what happened this time is that whereas in April because Palestinian Israelis were boycotting the elections, they became a negligible minority that no one was paying attention to. Because now, the mobilization, the rehabilitation of the Joint List that reunited in the aftermath —

MH: This is the Joint List of Palestinian parties.

NE: Yes, the Palestinian parties, the four Palestinian parties who reunited in the aftermath of the April election, and because of the mobilization on the ground, to change this balance of power, we actually saw Blue and White party and a number of other Israeli parties campaigning in Palestinian cities and Palestinian villages, notwithstanding the fact that they promised that they would not change the nation state law, that they would not end the occupation, that they would not even consider entering into a coalition government with the Joint List, they still tried to lobby for those votes.

MH: And now, of course, if some of the exit polls and counting is to be believed, they’re on course for an unprecedented 15 seats in the Israeli Knesset, the Israeli parliament. They may end up being the official opposition to a national unity government of Likud and the Blue and White Party, which would all be a historic. One of the points I made at the start of the show, and that I saw you make you on Twitter this week, Noura, is that five million Palestinians not voting in this election should tell you everything you need to know about so-called Israeli democracy. Now, supporters of Israel might say why, you know, they’re not citizens of Israel, why should they have a right to vote? What do you say to them?

NE: There’s two things to say to them. On the one hand, it’s not just that Israelis are not giving Palestinians the right to vote. Frankly, Palestinians don’t care about the right to vote if they had the right to be sovereign and govern themselves. But the fact that they are neither given the right to be sovereign and govern themselves, nor the right to participate in elections, notwithstanding the fact that the Israeli government whichever government comes on top will govern every aspect of their lives indicates how they are therefore, under a regime where they can’t represent themselves under any capacity and it’s tantamount to an apartheid nature. For those who say, “Well, no, that’s not true but Palestinians have a president, and they did have an election 14 years ago.” What President Mahmoud Abbas represents is a series of non-contiguous bantustans in the West Bank that are not tantamount to a state, that is not tantamount to sovereign. Even for him, even for Abbas to travel outside of Palestine, he requires permission and a permit from Israel, which should tell us again, the dimension of the lack of sovereignty, and the lack of the right to vote, which is a state of limbo that Israel has suspended Palestinians in for 52 years under the occupation and for 70 years since its establishment.

MH: So let’s talk about the A-word “apartheid.” It drives some supporters of Israel up the wall. They say it’s unfair. It’s inaccurate. It’s a smear. It’s anti-Semitic. They say Israel is nothing like apartheid South Africa. Why are they wrong? And also, as a first step, how do you define apartheid?

NE: Well, I think those two questions are related. This is not an analogy. Just as the Holocaust is not necessarily the only definition of genocide, the Jewish Holocaust is not the only definition of genocide, South African apartheid is not what defines apartheid as a racial structure and regime. Apartheid was defined in the 1973 Convention Against Apartheid, which defined it as a crime against humanity, which enumerated at least six different categories that indicate when a state is actually engaging in that kind of differential treatment based on racial distinction with difference. And so, in the case of Palestinians, if they were indeed in their separate territories living under a military occupation where they simply sought to be free and endure the military occupation, it might not be apt.

But the fact that Israelis, that Israeli civilians live within the West Bank, they constitute 600,000 settlers, approximately 12% of the West Bank population, who are connected to the interior of Israel proper, and who are given all the rights and are governed by Israeli civil law, while the Palestinians who are proximate to them who are literally — live side by side with them as they do, for example, between Hizma and the four settlements that surround them, who are governed by military law, this is when we’re starting to talk about two laws. And then some liberal Zionists will say, “Well, okay, fine apartheid exists in the West Bank, but you can’t say that about Israel,” except the same conditions exists within Israel except under a different civil law regime.

MH: But they have the right to vote, defenders of Israel would say. “Look, hold on 1.5 million Palestinians,” they say, “they can vote. Black Africans could not vote in apartheid South Africa.”

NE: But having the right to vote isn’t what constitutes apartheid. There are different definitions. The fact that there are 51 laws that will differentiate between Palestinians and Jewish Israelis, and that will either privilege Jewish Israelis or subjugate the Palestinian citizens is what we should be paying attention to. What Israel does is it bifurcates Jewish nationality from Israeli citizenship, so that if you are a Jewish national and an Israeli citizen, you have the full course of rights that will be available to you as a citizen and national. Whereas if you’re just an Israeli citizen, you do not have access to that full panoply of rights. That is the primary distinction that makes citizenship frankly, a second class status. So. even having the right to vote doesn’t mean that they have the rights to Jewish nationality, which are never going to be available to them.

MH: I want to play a clip to you from a video made by Danny Ayalon who’s the former Israeli ambassador to the United Nations, former Israeli deputy foreign minister. He made this video trying to rebut claims that Israel is an apartheid state. I just want to play a clip to you.

Danny Ayalon: Arabs serve as judges. An Arab judge even threw a Jewish president into jail. They share academic institutions, hospitals, transportation, beaches, and all facilities. They live all over the country. They’ve won national beauty contests and reality shows on Israeli TV. They’re on Israel’s national sports team. Therefore, it is not surprising that Frederick de Klerk, the South African leader who won a Nobel Peace Prize for ending the apartheid and knows a thing or two about it, said such a comparison is odious and unfair.

MH: Noura, what goes through your mind when you hear Israeli spokespersons make these arguments?

NE: I think it’s crazy that they’re citing de Klerk as an authority of what is and what is not apartheid based on how the minority is being treated. I mean, it’s one thing to say you’re not as evil as us, it’s another thing to say that the Palestinians are free. Look, these are all cosmetic forms of multiculturalism and inclusion that are not tantamount to full rights. What he’s trying to tell us is that because they get to have this nominal inclusion, that that somehow negates the structure of exclusion that Israel exercises, which is reserves the right of Israel to be a Jewish state. We don’t even have to go very far. Danny Ayalon should read Israel’s own law. The Nation-State Law of July 2018 defines Israel as a Jewish state, with the right of Jewish self-determination all over the state and only Jewish self-determination and which makes settlement. which makes the creation of settlements a constitutional obligation. Respond to that: how does inclusion as being a judge or a beauty queen debunk self-determination?

MH: Yeah, they’d much rather talk about reality show winners. Yousef Munayyer, the executive director of the U.S. Campaign for Palestinian Rights, who you and I both know, he’s been a guest on the show — He tweeted this week “If Netanyahu is done and that is a big if, it will be very interesting to watch how U.S. liberal Zionists will continue to defend the status quo without Netanyahu to hide behind.” He’s right, isn’t he? For a lot of U.S. liberals, both Jewish and non-Jewish, it’s been easy to say that Israel’s descent into illiberalism, into far-right nationalism, it’s all the fault of Netanyahu and Likud.

NE: Yeah, I mean, this is definitely a way to assuage liberal guilt because Netanyahu is not the problem right now. This is Israel. What he represents is not the right but is actually Israeli policy of settlement and expansion. The fact that neither party, no party, no party had a platform on what about Palestinians who are living under occupation? What about the siege on Gaza? What about the lack of equality of Palestinian citizens of Israel? The fact that nobody is talking about tells us what we need to know about Israel. Netanyahu can go away but we’re still going to be faced with this problem. What the liberal Zionists will have is you know, the ability to tell themselves “Oh, but now we can do better, whereas Netanyahu was unable to habilitate himself.”

But let the empirical evidence stand for itself. Blue and White has already said they want to bomb Gaza back to the stone age and that annexation was their idea. So, we need to stop living in a fantasy land of trying to hold on to a dream and actually deal with the empirical evidence. And the truth is, is that because there is no cost, financial, economic, moral or otherwise, to Israel and Israelis, there’s just no imperative to be thinking about Palestinians, which makes imperative upon us to create that cost and to create the incentive through boycott divestment and sanctions.

MH: And I’ll come back to that in one moment. Just on the point you made, you’re very right about empirical evidence. People forget that it was, you know, one of the fastest rates of settlement growth happened on the watch of Ehud Barak supposedly on the left. The destruction of Lebanon happen on the watch of Yitzhak Rabin and Ehud Olmert, supposedly on the left and the center. It’s easy to always just pin it on the right if you’re a U.S. liberal.

Interestingly what Netanyahu has done that’s been useful, I don’t know if you agree with this view, for all his odiousness and his repressive rule, he has actually been a PR disaster for Israel, for the State of Israel as a whole, regardless of where you are on the Israeli political spectrum. Because for years, the Israelis were able to say “The occupation is temporary. There’s a two -state solution around the corner. The peace process goes on.” Netanyahu comes along and says, “Nope, no Palestinian state on my watch. I’m going to annex parts of the West Bank.” So the occupation isn’t temporary. It’s permanent. And if it’s permanent, then it’s definitely apartheid.

NE: You know, I think what people have to deal with is the fact that Labor might have at some point been opposed to the permanence of civilian settlements as a matter of religious mandate and are not attached to the territories for its religious significance in terms of, you know, defining it as Judea and Samaria and part of a greater Israel, but Labor is just as committed to ensuring that there is no Palestinian state.

MH: And when you’re referring to Labour versus Likud in Israel, I can’t help but think it mirrors very, you know, clearly the discussion in the U.S. between the democrats and the republicans when it comes to Israel, and the limits to which either party will go to really take a stand. What do you make of the U.S. political scene right now a year out from the presidential election vis-a-vis the Palestinians? Are you optimistic? Because you have presidential candidates like Bernie Sanders for the first time saying they’re willing to make U.S. aid to Israel conditional on certain human rights issues. You have even someone like Pete Buttigieg, very pro-Israeli, saying he would not allow his presidency to fund the annexation of any part of the West Bank. You have Elizabeth Warren and Beto O’Rourke calling Netanyahu a racist. I’ve never heard, you know, leading U.S. politicians call the Prime Minister of Israel a racist. You have two members of Congress Ilhan Omar, Rashida Tlaib openly backing the BDS movement, the boycott, sanctions and divestment movement. Is this a turning point, Noura, in American politics or is it too soon to tell?

NE: No, I absolutely think that what we’re seeing in American politics and certainly in American rhetoric and in American media is a sea change to where we were on this question where it was — It’s still a taboo and there’s still risk in breaking it, but not in the way that it was formidable in the past. That said, it doesn’t represent or mirror at all the situation on the ground in Palestine, which is deteriorating day by day at an exponential rate. So yes, there has been change within the American scene, which I’m actually really grateful for, even for the fact that Israel is going to be a 2020 issue. We can’t say Palestinian struggle for freedom. That’s not how they define it. It’s really about Israel, right? We’re always in the shadow of Israel. But that Israel will even be subject to a debate represents a movement victory of the sacrifices that grassroots activists have been making for decades in the United States.

So I’m hoping that this the beginning of a much more honest conversation where Palestine is part of a much larger and broader framework in the Middle East and the lives of millions of people who have become expendable in the eyes of most Americans because we’ve become so desensitized to the numbers of death and destruction there as a result of endless wars.

MH: And, Noura last question: as someone who is Palestinian-American, who I assume speaks regularly to Palestinian family members and friends back in Israel in the occupied territories, how do you stay optimistic in these dark times?

NE: One, we have no choice. The only other choice is to surrender and give up and no humans have ever done that. But number two, one of the primary, and people asked me this question — My primary source of hope is to look at the two million Palestinians in the Gaza Strip, who have now participated in the 73rd consecutive week of the Gaza March of Return of marching to this militarized perimeter where they are held in an open air prison at the sure risk of being shot to be killed, where nobody is paying attention to them. And yet, they have remained resilient, obstinate, consistent, and have made — their demands have been clear, which is an end to the siege, the right to return and their freedom. If Palestinians in Gaza who are living under these dire conditions are not willing to give up and are provided and are moving through a politics of hope, I am in no place, I have no place and no right to say that I’m going to be cynical and give up.

MH: Noura Erakat, we’ll have to leave it there. Thanks so much for joining me on Deconstructed.

NE: Thank you for having me.

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MH: That was Noura Erakat, Palestinian-American lawyer, academic, activist, and author of the excellent new book “Justice for Some: Law and the Question of Palestine.”

She thinks that this might be a turning point in American politics and that Israel-Palestine will be an issue in the 2020 presidential election next year. I hope she’s right. Bernie Sanders, for one, has taken a more radical and actually progressive position on Palestine than any presidential candidate in my life time. The problem is: how many people know about it? Are aware of his position on this issue or other candidates’ position on this issue? At the last presidential debate, the Israel/Palestine conflict didn’t get a look in, didn’t get mentioned at all over three hours. We, you and I, need to make some noise going forward about the importance of this conflict, why it matters, and why the United States is complicit in the ongoing subjugation and occupation of the Palestinian people. That’s on us. And yes, we need to use the A-word: Apartheid.

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That’s our show! Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Leital Molad is our executive producer. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

And I’m Mehdi Hasan. You can follow me on Twitter @mehdirhasan. If you haven’t already, please subscribe to the show so you can hear it every week. Go to theintercept.com/deconstructed to subscribe from your podcast platform of choice, iPhone, Android, whatever. If you’re subscribed already, please do leave us a rating or review – it helps new people find the show. And if you want to give us feedback, email us at [email protected] Thanks so much!

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