“Israel is not a state of all its citizens… [but rather] the nation-state of the Jewish people and only them” Message posted online in March 2019 by Israel’s then prime minister, Benjamin Netanyahu
Apartheid is a term once associated with South Africa's white-rule system but now represents a term used broadly for crimes against humanity under international law and the Rome Statute that set up the International Criminal Court.
In April 2021, Human Rights Watch (HRW) was the first big international human rights organization to use “apartheid” to describe Israel’s policies toward the Palestinians.1 I was among those human rights experts who contributed to that very important report.
Amnesty International2 followed HRW a few weeks ago, using the same word “apartheid” to describe Israel’s policies toward the Palestinians in the Occupied Palestinian Territory and inside Israel. These two reports were not the first to describe these policies as “apartheid.” Many other Israeli and Palestinians reports have done the same,3 but this was the first time two big global human rights organizations did so.
In this piece, I will not describe or focus on the Israeli policies in the West Bank and/or Gaza Strip; I will focus mainly on East Jerusalem and the Palestinian minority inside Israel.
A. Legal Definitions: The Crime of Apartheid in International Law
Two international treaties, the Convention on the Suppression and Punishment of the Crime of Apartheid4 (Apartheid Convention) and the Rome Statute of the International Criminal Court (Rome Statute), identify apartheid as a crime against humanity. The Apartheid Convention defines the crime against humanity of apartheid in Article II as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” The Rome Statute defines apartheid in Article 7, paragraph 2(h) 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 or groups and committed with the intention of maintaining that regime.”5
International law prohibits the crime of apartheid both as a matter of customary international law and treaty law. Customary international law recognizes apartheid as a preemptory norm (jus cogens) and prohibits the crime of apartheid. Practices of apartheid committed in the context of an armed conflict also amount to a grave breach of Protocol I Additional to the Geneva Conventions6 which, notwithstanding that Israel is not a State Party to Protocol I, is widely regarded as customary international law.
B. Is Israel an Apartheid State Toward the Palestinian Minority Inside It?
I think if the question was related to the Israeli policies and actions in the West Bank, the answer would be easier and much simpler. The double systems that Israel established for the Palestinians and the Israeli settlers in the West Bank, its separation policies and its planning and building policies,7 make the picture much clearer regarding the apartheid question.
Inside Israel, there are different policies that affect only the Palestinian minority:
- The right of political movement:
Israeli Basic Laws prevent Israeli citizens from challenging the definition of Israel as a Jewish state. Although the Palestinian minority inside Israel can vote in the central/national elections (East Jerusalem residents can vote only in the municipal elections), their influence on the system is very limited. At different opportunities, senior Israeli politicians (including the previous prime minister) claimed that the Palestinian minority representatives in the Israeli parliament are terrorists and are seen (both the representatives and the minority) as the “enemy from within.”
Almost in all the cases where the Israeli parliament passed different laws that affect only the Palestinian minority inside Israel, the minority representatives could not stop any of the legislation.8 Only this week, the Knesset reauthorized a law that bans Palestinian family unification.9 The law bars marriage to citizens of “enemy states,” including Lebanon and Iraq, but it is widely seen as targeting Palestinians, who constitute the vast majority of spouses to whom the law applies. The law includes a section declaring that it aims to protect Israel’s Jewish majority and quotas on permits approved for “exceptional humanitarian cases.”10
- Family Life:
As described above, Israel puts many restrictions on Palestinian family life. Its policies and laws are intended to control the Palestinian population inside Israel and aim to preserve a Jewish Israeli majority in key areas across Israel. In East Jerusalem, the situation is much harder. East Jerusalem residents do not have Israeli citizenship; most of them hold a temporary status of residency, and they always need to prove their “center of life” to be in Jerusalem in order to keep this status.
The law that was approved last week replaces a similar temporary order that first passed during the height of a Palestinian uprising in 2003 and was renewed annually until it expired last July, when the Knesset failed to secure the simple majority needed to extend it.
This law is xenophobic or racist because it not only gives extra rights and privileges to Jewish people but also denies certain basic rights only to the Arab population.
The law above is not unique. Many discriminatory laws11 were approved by the Knesset. These laws limit the rights of Palestinians in all areas of life, from citizenship rights to the right to political participation, land and housing rights, education rights, cultural and language rights, religious rights, and due process rights during detention. Some of the laws also discriminate against other groups such as gays, non-religious Jews, and Palestinian refugees.
It’s not only the laws but also facts on the ground that show a lot of discrimination against Palestinians in Israel and East Jerusalem. Only around 15% of the area of East Jerusalem (equivalent to 8.5% of the total area of Jerusalem) is zoned for residential use by Palestinian residents. Building percentages for Palestinians in the city are particularly low. Only 2.6% of the land in East Jerusalem is zoned for public buildings for the Palestinian population of the city.12
Apartheid requires: (1) inhuman acts, (2) committed with the intent to establish or maintain the domination of one racial group over another, (3) in the context of an institutionalized regime of systematic racial discrimination and oppression. Many of the Israeli laws described above target only the Palestinian minority. In many cases, security is used to harshly discriminate against the Palestinian minority without direct laws or regulations.
As for the answer to the question of whether Israel is an apartheid state, it is getting closer and closer to that definition.
1 HRW, A Threshold Crossed: Israel Authorities and the Crimes of Apartheid and Persecution, Available at: https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-andcrimes-apartheid-and-persecution
2 Amnesty International, Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity, Available at: https://www.amnesty.org/en/documents/mde15/5141/2022/en/
3 See, Btselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid, at: https://www.btselem.org/publications/fulltext/202101_this_is_apartheid, and Badil Center, Applicability of the Crime of Apartheid to Israel, available at: https://www.badil.org/publications/al-majdal/issues/items/225.html
4 International Convention on the Suppression and Punishment of the Crime of Apartheid, see at: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf
5 See, Paragraph 1 of the Rome Statute, the paragraph lists types of acts that constitute crimes against humanity, available at: https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
6 See, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/470?OpenDocument
7 For more details see ACRI report: One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank, available at: https://law.acri.org.il/en/wp-content/uploads/2015/02/Two-Systems-of-Law-English-FINAL.pdf
8 See for example, Knesset passes Jewish nation-state bill into law: https://main.knesset.gov.il/EN/News/PressReleases/Pages/Pr13979_pg.aspx
9 After coalition battle, Knesset reauthorizes ban on Palestinian family unification, available at: https://www.timesofisrael.com/after-coalition-battle-knesset-reauthorizes-ban-on-palestinianfamily-unification/
10 See approved version of the law at the Knesset website (Hebrew) at: https://main.knesset.gov.il/Activity/Legislation/Laws/Pages/LawBill.aspx?t=lawsuggestionssearch&lawitemid=2169827
11 See, Adalah: The Legal Center for Arab Minority Rights in Israel, at: https://www.adalah.org/en/law/index
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