Amnesty International claims in its 2022 report that the racist flaw inherent to apartheid was written into the DNA of the State of Israel from its very foundation in 1948. It documents as apartheid the treatment of the Palestinians in four separate sectors: Israel within its 1948 borders, Gaza, the West Bank, and East Jerusalem.
History of the Claim of Israeli Apartheid Through a Personal Lens
I first encountered the debate on the legitimacy of statehood for the self-determination of the Jewish people in Dar e Salaam in 1967, as part of a group of New Left academics who were among the founding faculty of the University of East Africa. At the start of the Six-Day War, there was consensus in the group that this was a matter of self-defense and that the defeat of these Jewish survivors of the Holocaust in Europe, who had established the only democratic state in the Middle East, would be tragic. The tune changed on Day Seven after Israel won the war, and the consensus then became that as long as Israel existed in the ME, the Arabs would never reach their full political, economic, and cultural potential. This was the language of Franz Fanon’s The Wretched of the Earth, which named and blamed the colonial powers for their devastating exploitation of the colonized peoples. Only one member of the group, Walter Rodney, a Guyanese history professor, intellectual revolutionary and scholar, agreed with me that the Jews were not members of the colonizers’ club but rather honorary members of “the wretched.” Rodney said: “This is not a confrontation between colonizers and colonized but between two peoples tragically deprived by history of a homeland, fighting over one miserable strip of sand.”
Amnesty’s uncompromising condemnation of Israel as apartheid in all four sectors presents a dilemma for human rights activists. On the one hand, the report contains crucial distortions and omissions, all of which lean toward a bias against Israel. On the other hand, it accurately portrays the severe violations of human rights Israel is committing in the West Bank and East Jerusalem, which have indeed been labelled apartheid by some respected human rights organizations, politicians, and activists in Israel. In the context of this dilemma, it is pertinent to examine the accuracy and the impact of applying the label of apartheid to Israel, in general and in the way Amnesty chose to portray it in particular, through a careful review of international law norms. I will take it as a given that Israel is violating international law as regards various aspects of the occupation and settlements in the Occupied Palestinian Territory (OPT). However, apartheid is just one of the possible frameworks in which these Israeli violations of international law can be examined: others are illegal occupation, settlement colonialism, racial or ethnic discrimination. Here, I will explore only the accuracy and significance of the added calumny of the apartheid appellation and of its application by Amnesty to Israel in its pre-1967 borders as well as in the OPT.
Apartheid in International Law
Apartheid originated in international law as a response to the apartheid regime in South Africa and is largely associated with that regime. Hence, on a rhetorical level, the attribution of the label of apartheid carries with it the mark of Cain of South African apartheid. This, although the historical dynamic of the power relations between the Israeli and the Palestinian people and their philosophical, political, and constitutional underpinnings bear no resemblance to the racist foundations on which the South African apartheid regime was established.1 Nevertheless, although originating in the South African case, the term apartheid has gained wider traction in international law: in the Convention for Elimination of Racial Discrimination, the Apartheid Convention, and the Rome Statute of the International Criminal Court (ICC). These three instruments of international law prohibit apartheid and racial segregation – variously on the basis of race, color, descent, or national or ethnic origin.
Apartheid is a “crime against humanity.” It is defined in the Rome Statute of the ICC2 as “inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group and committed with the intention of maintaining that regime.” Inhumane acts are acts committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
In order to justify a finding that Israel is practicing apartheid in any of the four areas designated by Amnesty as separately meriting the apartheid designation, both the facts and their interpretation must be accurate.
Claim of Apartheid Within Israel’s Pre-1967 Borders
In its allegations regarding the State of Israel within its pre-1967 borders, Amnesty's claim that Israel was an apartheid state from its inception and is so in the current treatment of its Palestinian minority is decontextualized and inaccurate both in facts and in their interpretation.
Amnesty's decontextualization begins with the portrayal of the establishment of the State of Israel by “immigrants from Europe” who came to settle and expel the indigenous Palestinian population, with no mention of rather salient facts. The Jewish people are also indigenous to the area. After many years in various diasporas, Jews returned to Palestine as refugees - from pogroms in Eastern Europe and Russia; from extermination camps in Western Europe; and as dispossessed migrants from persecution in North Africa. This persecution was the overriding motive for the Law of Return, allowing Jews automatic Israeli citizenship. Israel was established as a homeland for the Jews under the 1947 UN Partition Plan. The nascent state faced violent Arab rejection of its establishment, resulting in armed conflict, tragically accompanied by acts of brutality by both sides. These “immigrants” were not, as implied by Amnesty, colonialists in search of a land grab.
As regards the current situation in Israel, Palestinian citizens constitute 21% of the population and, contrary to the Amnesty report, have full citizenship rights. They carry regular Israeli passports and do not have restrictions on their mobility. Palestinian citizens are free to reside wherever they wish and are not “barred from residence in 68% of Israel's towns,” as Amnesty claims. Indeed, the High Court of Justice has repeatedly ruled that exclusion of non-Jews from residential townships on state-owned land is prohibited.3 Contrary to Amnesty's claims, Palestinian Israelis have full political rights, both as voters and as elected representatives,4 and currently hold 17 of the 120 seats in the Knesset, including MKs belonging to two sectoral Arab lists, one of which is in the present government coalition. Arab citizens and residents have equal social and economic rights, with legislative prohibition of discrimination in employment5 or public places.6 There is institutionalization of Muslim and Christian religious courts' jurisdiction over family law, sectoral days of rest,7 choice between sectoral and public education,8 exemption from compulsory army service,9 equal rights to national insurance and social security, and the right to affirmative action in government service.10
Nevertheless, in the “Jewish and democratic state” decreed in the Basic Laws, there is marginalization of Arab citizenship identity. This marginalization is rooted in the tension between the right of peoples to selfdetermination and the right of minorities to equality. The synthesis must be in equality for all citizens of the state, whether they have majority or minority identities. Israel's Knesset has failed to commit to the right of equality on a constitutional level, omitting it from the Law on Human Dignity and Liberty, and the Nation-State Law in 2018, which entrenched Israel as the historical homeland of the Jewish people, with its unique right to national self-determination. The High Court, however, has consistently ruled that the right of Arab citizens to equality is entrenched in the application of all the Basic Laws.
Furthermore, despite the legal framework prohibiting discrimination, it exists in practice, sometimes by public agencies. There is reprehensible incitement to ethnic hatred by some public figures and MKs despite the prohibition against hate speech. There are severe inequalities in permits for building in Palestinian localities.11 A restriction on permanent residency rights for family members or spouses from the OPT or hostile countries constitutes a barrier to the family life of Palestinian Israelis. Palestinians suffer harassment at the airport, allegedly for security screening. Along with reprehensible discrimination by public agencies, there is, although prohibited, clear discrimination by private organizations and individuals, particularly in employment and in the rental and sale of residential property.
Amnesty's assessment that the historical, political, economic, and legal framework for the Arab minority in Israel amounts to apartheid is a conceptual distortion. Its attestation to discriminatory practices is partly correct and partly fallacious but does not amount to apartheid. Despite shameful discrimination against Palestinian citizens of Israel and the need to rectify it, this does not amount to inhumane acts in the context of institutionalized and systematic racial oppression required by the Rome Statute.
Israeli Blockade of Gaza
Gaza is no longer under direct Israeli administration after the disengagement in 2005. Israel has maintained a partial blockade on Gaza, restricting access from air, sea, and land. Amnesty states that this cuts Gaza off from the rest of the world, but it omits to mention that Egypt blockades Gaza from the west and does not examine whether this, too, is apartheid.12 Amnesty also fails to mention that Israel’s measures, like Egypt’s, are in response to Gaza’s rule by Hamas, which is designated a terrorist organization by the United States, the EU, and most member states of the Arab League. Israel is regarded by the United Nations as exercising effective control over the Strip, but this is pertinent for determining whether it has obligations as an occupying power, not for designating this control as apartheid.13 Amnesty condemns the Israeli army attacks on Gaza without mentioning that since 2001, Palestinian militants in Gaza have launched thousands of rocket and mortar attacks on Israel as part of the continuing conflict. One may ask whether Israel’s military responses have been disproportionate, but this is a question of the laws of war and not apartheid.14 Gaza faces a chronic humanitarian crisis and Israel's blockade, in a complex political context, contributes to it. But apartheid it is not.
Inhumane Acts in the West Bank and East Jerusalem
As regards the West Bank, the report accurately portrays the miserable reality of Israeli occupation and settlement, particularly in Area C, which is under Israeli administration and home to 150,000 Palestinians and nearly 500,000 Israeli settlers, and to a lesser extent in Area B, which is under joint administration.15 Amnesty documents the denial of basic human rights of the Palestinians to freedom of movement, equal sharing of natural resources, equal economic opportunity, and family reunification. It shows separate legal systems for Palestinian inhabitants and Israeli settlers, with Palestinians subject to administrative detentions and house demolitions for building without a permit or as punishment for families of terrorists. It shows the increasing violence by militant settlers against Palestinians and their property, which has taken place without any effective intervention by the army and police, either in the field or by prosecution and punishment of the perpetrators. Amnesty documents the entire illegal settlement project, prohibited under the Hague Convention, in which the Israeli Government, as the occupying power, underwrites the transfer of its citizens to the occupied territory. It shows how the government also tolerates land grabs by militant settlers which are illegal not only under international law but Israeli law as well.
East Jerusalem has been annexed. Its residents are entitled in theory to request Israeli citizenship but, in practice, most residents have not applied for citizenship and, of those who have, most have been rejected or their applications endlessly postponed. East Jerusalem Palestinians possess only truncated Israeli permanent residency rights, as Israel strips them of these rights in cases of extended absence, limiting their freedom to travel. Though they have full social security rights, these are dependent upon them retaining continuous residency. Lacking citizenship, they are denied the right to vote in national elections. They do have the right to vote in municipal elections but do not exercise it, in resistance to normalization.
Israel’s behavior in the West Bank and East Jerusalem may well amount to the definition of inhumane acts as broadly defined under the Rome Statute. While Israel has not been accused of the most heinous acts of systematic extermination, genocide, murder, orrape, it can be accused of “imprisonment” in its administrative detentions; or “other severe deprivation of physical liberty,” as in travel restrictions; or of “causing serious injuries to body or to mental or physical health,” as in its obstruction of access to agriculture, education, or health services; or of “persecution,” which is defined as the intentional and severe deprivation of fundamental rights by reason of the identity of the group or collectivity. If these acts are found to constitute widespread or systematic attacks directed against the civilian population, they fulfil the requirements of inhumane acts for the purposes of apartheid. Raising this specter is in itself a sufficiently severe indictment of Israeli behavior in the West Bank and East Jerusalem as to make it imperative that rectification be absolute and immediate.
It is still not clear, however, that apartheid is the most appropriate or accurate legal classification of the situation. This depends on whether Israel intends to “maintain” domination over the Palestinians as an “institutionalized regime of systematic oppression and domination of one racial group over another.” The declarations of the last two prime ministers that they do not intend to allow a Palestinian state to be created, together with the establishment of settlements, which amounts to creeping annexation, indicate an intention to maintain the existing regime. Nevertheless, it is not at all clear that this regime is “an institutionalized regime of systematic racial or ethnic oppression and domination.” The roots of the occupation are far more complex, involving a military confrontation, initiated by the Palestinians and the Arab states, between two powerful, heavily armed opponents with agency and opposing narratives as regards political and national histories, rights, and futures. Israel did not seek out this war. It fought a defensive war, and there is no evidence that its intention was domination of another racial group. Over time, the element of defense has weakened, and the settlements have strengthened the element of domination, but it is still not clear that the occupation has morphed into an intent to maintain racial or ethnic domination.
The element of oppression or domination of one racial or ethnic group over another seems illusional when members of the same ethnic group are full citizens who constitute 21% of the Israeli voting public, have an equal right of political participation and representation, and are fully integrated into the economic life of the country. Its observation of severe violations of human rights of Palestinians in the West Bank and in East Jerusalem is factually accurate, and it is incumbent on Israel to put an immediate end to
the resulting suffering of Palestinian residents, whatever the terminology used to describe the regime: occupation, settler colonialism, or apartheid.
Purpose and Impact of Designating Israel an Apartheid State
The choice to name Israeli reality apartheid rather than occupation, settler colonialism, or ethnic discrimination is a suspect choice in the international context. The only other country Amnesty has found to be committing apartheid under the current international conventions, including the Rome Statute, was Myanmar, which was alleged by the Office of the UN High Commissioner for Human Rights to be committing genocide against the Rohingya population.16 In neither the case of Myanmar nor the classical case of South Africa were the perpetrator states dealing with an international conflict. In both those cases, the subject population was an integral part of the constitutional reach of the apartheid regime, and there was no demand by that population for independent statehood or elimination of the perpetrator state. The selection of Israel is therefore a choice that needs explanation. I believe the purpose is not merely to have Israelis charged in the ICC, as this could be achieved on the grounds of illegal settlement. It is to place Israel in the rare category of pariah states. Indeed, Amnesty claims that states party to the Apartheid Convention not only may but are actually obliged to exercise universal jurisdiction over Israelis reasonably suspected of committing the crime of apartheid. This presumably includes all Israelis who have served in the army or civil service or been settlers, who will hence risk prosecution overseas. The designation of apartheid is probably also intended, though not expressly stated by Amnesty, to justify suspending Israel from participating in the UN.17
In a series of both assertions and omissions, Amnesty's report decontextualizes the interaction between Palestinians and Israelis. The report tendentiously leads in one direction: delegitimization of Israel as a state for the self-determination of the Jewish people. Amnesty calls for equal political rights for Palestinians in Israel and the OPT without considering alternative options of a two-states or any other solution. In this, as in its call for the right of return of the 6 million Palestinian refugees to the homes of the 750,000 who left Israel originally, Amnesty fails to acknowledge Israel’s legitimate security concerns and the right to self-determination of the Jewish people.
Israel's DNA was not, as claimed by Amnesty, apartheid. Furthermore, in the process of attempting to reach a two-state or confederate solution with political autonomy for Israelis and Palestinians, it is not apartheid but international law norms relating to occupation, settlement colonialism, or ethnic discrimination that are still the most accurate and constructive frameworks for examining the Israeli regime. Israel is in flagrant violation of these norms, and Amnesty's report is a welcome black flag raised over such violations. The blatant attack on Israel as an apartheid state through and through, however, fails to recognize the historical dynamic or the current difficulties in reaching a desirable outcome of self-determination for both peoples — difficulties that are in part the result of Palestinian rejectionism, not only Israeli expansionism. Hamas, though it has far less military and political power and does not have the responsibilities of statehood, is also violating these norms, and the Palestinian Authority is compromised by association. Myopia on both sides places nationalism above the urgent need to cooperate to secure our interdependent futures. In the absence of vision and leadership, the two peoples are on a march of folly toward losing the opportunity for self-determination, peaceful development, and environmental sustainability for both. Those who have chosen to condemn this evolving tragedy as Israeli apartheid have some facts in their arsenal but also many questionable conclusions and some downright distortions. In this scenario, the decision to select Israel as a paradigm case of apartheid seems misled, if not malicious.
1 Benjamin Pogrund, Benjamin Pogrund, Drawing Fire: Investigating the Accusations of Apartheid in Israel, Rowan and Littlefield, 2014
2 The definition under the Apartheid Convention 1973 is slightly different.
3 Bagatz Kaadan; The High Court of Justice also ruled the provision in the Nation-State Law on Israel's commitment to Jewish settlement does not allow for the discrimination and exclusion of non-Jews from state-owned land.
4 Amnesty's claim is based on Section 7A of the Basic Law: The Knesset which provides that no political party will be eligible for election if it negates the existence of the State of Israel as a Jewish and democratic state. However, while this provision has resulted in the disqualification of some extremist Jewish candidates, no Arab political candidates have been banned.
5 Equal Employment Opportunities Law 1988
6 Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 2000
7 Hours of Work and Rest Law.
8 Education Law section?
9 Note ruling by the A-G that there must be no discrimination against non-veterans.
10 Government Service Law, Sec 18?
11 This fits into a segregationist reality in residential dispersion amongst Jews, ultra-Orthodox Jews and Muslims. Ultra-Orthodox Jews openly oppose entry of non-Orthodox Jews to their neighborhoods; Muslims oppose the selling of land to Jewish residents.
12 Egypt cites a need to prevent Hamas support for the Muslim Brotherhood and Islamic Jihad, which pose a terrorist threat
13 Committee investigating Operation Protective Edge
14 See Goldstone Report and Goldstone's subsequent retraction of important elements of one-sided blaming of Israel. The 1988 Hamas Charter, which calls for elimination of Israel and for the killing of all Jews, has not been rescinded till today, and the 2017 Declaration still states that there shall be no recognition of the legitimacy of the Zionist entity and "rejects any alternative to the full and complete liberation of Palestine, from the river to the sea."
15 These territories were delimited under the Oslo Accords.
16 Additionally, the ICJ ordered Myanmar to prevent genocidal violence against its Rohingya minority.
17 The United Nations General Assembly on 12 November 1974 suspended South Africa from participating in its work, due to international opposition to the policy of apartheid.