Israeli Apartheid Q&A

Is the Israeli regime an apartheid regime?

Is the Israeli Regime an Apartheid Regime?

This section examines the policies of Israel, clarifying the established Israeli apartheid regime according to the definition of apartheid under international law.  For further clarifications on the meaning and legality of apartheid, check Apartheid 101 section.

1. On what basis is Israel accused of committing the crime of apartheid?

The most comprehensive answer to this question appears in the ESCWA report that examined Israeli policies and practices towards all Palestinians, whom Israel has forcibly divided into four categories: 

  1. Palestinian citizens of Israel, who live as juridical equals under Israeli civil law, although they are denied numerous privileges and advantages that Israeli law accords exclusively to Jewish citizens;
  2. Palestinians in East Jerusalem, which Israel occupied in 1967 and later annexed in violation of international law, who are classified as permanent residents;
  3. Palestinians in the West Bank and Gaza, who are living as civilians (stateless people) under Israeli military occupation, and
  4. Palestinian refugees and involuntary exiles living outside the land of Mandate Palestine, who are subject to whatever laws have been designed for them in the countries where they live. 

The authors of the ESCWA report examined Israeli policies, practices, and procedures that affected each of the above four segments (or legal ‘domains’) and considered their impact on the Palestinian people as a whole. They concluded that although Israel uses different methods of administration to control Palestinians in each domain, those domains function as one synchronised system designed to ensure Jewish-national domination in territory under Israel’s direct rule. Accordingly, all Palestinians are being subjected to one integrated regime that discriminates against them wherever they are on the basis of their being non-Jews. 

In reaching this determination, the authors of the report, Richard Falk and Virginia Tilley, adhered to the strictest criteria established by the definition of apartheid embodied in international law. The authors succeeded in demonstrating that Israel is indeed violating the prohibition on apartheid by noting how its policies and practices accord with the definition of apartheid in the Apartheid Convention and the Rome Statute: i) Israel is committing almost all of the ‘inhuman acts’ listed in the Apartheid Convention, ii) those acts are indeed designed to ensure the domination by one racial group (Jews) against other racial groups (Palestinians and any non-Jews living under Israeli authority), iii) those acts are systematic and elements of an institutionalised regime, and iv) those acts have the purpose of racial domination, exploitation, victimisation, and oppression. 

2. What are the most striking apartheid policies in the occupied Palestinian territory?

A 2009 South African study conducted an item-by-item comparison of Israeli practices with the ‘inhuman acts’ listed in the Apartheid Convention. It concluded that every ‘inhuman act’ listed in the Apartheid Convention is practiced by Israel in the West Bank, except for genocide

Palestinians in the occupied territory, in addition to being denied their freedoms and rights, are subjected to an institutionalised regime of racial discrimination and segregation that accords them lesser rights and protection compared to Jewish settlers residing illegally in the occupied territories. This illegality is established by Article 49(6) of the Fourth Geneva Convention.

Palestinians in the occupied West Bank are governed by Israeli military law, while Israeli-Jewish settlers, whose presence in the occupied Palestinian territory is illegal under international law, are subject to, and protected by, Israeli civil law. The mere existence of two separate legal systems for two different racial groups living on the same land, is a strong indicator of an apartheid regime, but its hierarchical and discriminatory nature adds weight to such an assessment. 

Under this discriminatory dual legal system administered by Israel in the occupied West Bank, rights, legal protection, judicial proceedings, and the ability to benefit from public services are determined by the individual’s racial and national identity. Jewish settlers enjoy guarantees against arbitrary arrest and detention; Palestinians are not ensured even the most basic and minimal guarantees of a fair trial. Jewish settlers are granted unrestricted travel throughout most of the West Bank; Palestinians must deal with a complex set of physical and bureaucratic hurdles in order to move about on their own land and often even to gain access their property. Roads are built on confiscated Palestinian lands for the exclusive use of Jewish settlers; Palestinians aren’t allowed to come near such roads, let alone use them. Jewish settlers are given residency and permits to build on lands they never owned; Palestinians are stripped of residency in their homeland, and are denied permits to build or repair their own homes.  

3. How Are Palestinians in East Jerusalem subjected to racial discrimination?

Although, like the West Bank and Gaza, East Jerusalem is an occupied territory according to international law, Palestinians living there face a slightly different set of discriminatory measures compared to those living in the West Bank. When East Jerusalem was invaded, occupied, then illegally annexed by Israel, Palestinians living there were granted the revocable status of ‘permanent residents’, rendering them stateless. As residents, they are treated ‘as foreigners’ for whom residency in the land of their birth is a privilege rather than a right, subject to revocation. Palestinian residents in Jerusalem face onerous requirements to constantly prove that their so-called ‘centre of life’ is in Jerusalem, to be allowed to remain there. Such contingent residency has been coupled with constant threats of forced evictions, house demolitions, and other policies and practices such as residency revocation, aimed at guaranteeing and maintaining an Israeli-Jewish demographic majority in the city at the expense of the rights of the indigenous people of Palestine. This demographic motivation is clearly outlined in Israel’s racist master plans for Jerusalem

In comparison to the Jewish residents of the city, Palestinians are discriminated against when it comes to education, health care, building permits and other public services. Inferior health and educational services provided to Palestinian Jerusalemites, are clearly reflected in their health and educational indicators in comparison to Jewish residents of the city. “As of 2019, it is estimated that 72 per cent of all Palestinian families in Jerusalem live below the poverty line, compared to 26 per cent of Israeli-Jewish families. At the same time, 81 per cent of Palestinian children in Jerusalem live below the poverty line, compared to 36 per cent of Israeli-Jewish children. Moreover, roughly a third of Palestinian adolescents in Jerusalem do not complete 12 years of schooling. In turn, the drop-out rate for Israeli-Jewish students in Jerusalem is estimated at 1.5 per cent. Lastly, fewer than half of Palestinians in East Jerusalem are formally connected to the water network”[1].


[1] Al-Haq et al., Joint Parallel Report to CERD on Israel’s 17-19 Periodic Reports (UNOHCHR: November 2019), 74: page 25-26

 

4. How are Refugees and Involuntary Exiled Palestinians subject to Israeli apartheid?

Though living outside the territory under Israel’s jurisdiction, the right of Palestinian refugees and exiles to return to their homes and property is directly affected by Israel’s refusal to allow them to exercise their right of return.  Palestinian refugees and exiles are denied the right to return to their homes either in Israel or the occupied Palestinian territory because they are not Jewish. Only Jews enjoy an unrestricted right of return, which under the Law of Return is available to all Jews even if they or their ancestors never lived in those parts of Palestine now constituting the State of Israel. 

Furthermore, ownership of refugees’ property inside Israel has been transferred to the State’s Custodianship Council for Absentees’ Property.[1] Submitting claims for compensation or recovery of their confiscated land is barred because they are not Israeli citizens,[2] while privatisation of this confiscated land to new Jewish owners was authorised in 2009.[3] This transfer of property aims to further disconnect Palestinian refugees from their rights in the land and highlight their inability to exercise their right of return.

In 1948, General Assembly resolution 194 (III) resolved that “the [Palestinian] refugees wishing to return to their homes… should be permitted to do so”. Israel’s refusal to acknowledge, let alone implement, the refugees’ right to return ensures that the Palestinian population does not grow to a point of providing Palestinian citizens of Israel with the demographic leverage to demand full democratic rights. 


[1] Israeli Absentees’ Property Law, 5710-1950, articles 2-3.

[2] Absentees’ Property (Compensation) Law, 1973, article 1. 

[3] Under Israel Land Administration Law, 2009. Adalah, the Legal Center for Arab Minority Rights in Israel, 2009.

 

5. Can Israel be accused of discriminating against its non-Jewish citizens?

Palestinian citizens of Israel live under a legal system that not only promotes their oppression but also outlaws and condemns legal challenges to it.  As a Jewish State, Israel’s legal architecture codifies a privileged status for its Jewish citizens, and enacts discrimination by way of nationality laws against all others, particularly its Palestinians citizens. Uniquely, Israeli law distinguishes between citizenship (ezrahut) and nationality (leum), which in other states are interchangeable terms. Israeli law recognizes only one ‘national’ identity in Israel: the Jewish nation; Israel’s Supreme Court has confirmed that no other group can have ‘national’ standing in Israel. In 2018, the Knesset confirmed this arrangement in the ‘Nation State’ law, which expressly confirms that Israel is the nation-state of the ‘Jewish people’ exclusively. For this reason, non-Jews can attain the status of citizens of Israel, but never that of nationals. As such, they enjoy some rights by virtue of being citizens, but have no access to the whole spectrum of nationality rights that are reserved for Jews.

Currently more than 65 Israeli laws explicitly discriminate against non-Jewish citizens. They cover a wide range of areas, including subsidies and grants for education and training, immigration, political participation, the state budget and the ability to benefit from public land and services. 

6. Did any independent entity or State official accuse Israel of establishing an apartheid regime?*

After the 1967 Six Day War, Israel’s first prime minister, David Ben Gurion, warned that Israel would become an apartheid State if it did not rid itself of the occupied territories of the West Bank and Gaza and its ‘Arab’ population.  In 1976, Yitzhak Rabin, Israel’s prime minister at the time, warned that the State of Israel could become an apartheid State, saying: “I don’t think it’s possible to contain over the long term, if we don’t want to get to apartheid, a million and a half [more] Arabs inside a Jewish State” – referring to Palestinians with Israeli citizenship.

As prospects of a two-state solution dimmed, references to Israeli apartheid reappeared in statements by some prominent politicians but continued to be excluded from formal diplomatic statements. Former US President Jimmy Carter (in 2006), U.S. Secretary of State John Kerry (in 2017) and even leading Israelis such as former Prime Minister Ehud Olmert (In 2007), and former Prime Minister Ehud Barak (in 2010) —warned that if partition truly failed then Israel’s ruling two ethnic groups according to different laws would effectively constitute an apartheid regime, with particular reference to the Palestinians living in the West Bank and Gaza.[1]

Several high-profile Israelis suggested that apartheid is already a present reality, including former education minister Shulamit Aloni (2006), former environment minister Yossi Sarid (2008) and former attorney general Michael Ben-Yair (2002), but with respect to occupied Palestinian territory. Former Foreign Ministry chief Alon Liel (2013), who also served as an ambassador to South Africa, acknowledged that Israel was an apartheid State from the Jordan River to the Mediterranean sea, saying “until a Palestinian State is created, we are actually one State. This joint State…is an apartheid State.”


[1] Olmert warned that “if the two-state solution collapses, and we face a South African-style struggle for equal voting rights, then the State of Israel is finished” while Barak has declared that “if this bloc of millions of Palestinians cannot vote, that will be an apartheid state.”

*This section is derived from: Mehdi Hassan, “Top Israelis Have Warned of Apartheid, so Why the Outrage at a UN Report?”, The Intercept, 22 March 2017

 

7. What are the principal methods by which Israel maintains its apartheid regime?

Israel imposes its apartheid regime on the Palestinians through their strategic geographic and juridical fragmentation. Through wars, dispossessions, partitions, de jure and de facto annexation and prolonged occupation of the land, Israel has managed to keep Palestinians fragmented into four different geographic regions: (1) as citizens of Israel, (2) as permanent residents (but not citizens) in Jerusalem, (3) under occupation in the West Bank or under siege in Gaza, and (4) as refugees or exiles outside the territory under Israel’s control. Each segment of the Palestinian people has been victimised by a distinct set of Israeli discriminatory laws and policies, but all share in common the experience of racial oppression resulting from the apartheid regime. 

This fragmentation is consolidated by severe restrictions on freedom of movements, residence, and numerous obstruction of normal family life, as the Joint Parallel Report to CERD on Israel’s Seventeenth to Nineteenth Periodic Reports, notes:  “Despite claims to the contrary, Israel has imposed draconian restrictions on freedom of movement and residence within the occupied Palestinian territory and across the Green Line, severely impacting the rights of indigenous Palestinians to family life, choice of residence and spouse, adequate housing, and an adequate standard of living for oneself and one’s family. These policies and practices have played an important role in the fragmentation of the Palestinian people and territory, ensuring that Palestinians from different geographical areas of their native country are unable to meet, group, live together, share in the practice of their culture, and exercise any collective rights, including to self-determination and permanent sovereignty over their natural wealth and resources”[1].

This fragmentation aided by the restriction on movement of Palestinians, operates to stabilise the Israeli regime of racial domination over the Palestinians through weakening the Palestinians’ national identity, and their capacity to develop a unified and effective national leadership.  Also, splintering the Palestinian people, and deploying different laws and policies against each of these groups, obscures the character, and even the reality, of a coherent apartheid regime. 

Additionally, demographic engineering allows Israel to maintain its apartheid regime and keep it below the international radar screen. To maintain the semblance of a democracy, Israel needed to establish a Jewish majority that can help it maintain the Jewish character of the State and ensure continuing control over the non-Jewish minority. Steps towards achieving this objective, included the ethnic cleansing of an estimated 800,000 Palestinians during the 1948 war from areas that became part of the internationally-recognised territory of Israel, a harrowing event for the Palestinians known as the Nakba, or catastrophe. Subsequent measures of demographic control undertaken by Israel involved preventing Palestinian refugees from returning to their homes, which was partly motivated by the strategic goal of making sure the Palestinian population never gains sufficient demographic weight that would either threaten Israeli military control of the occupied Palestinian territory, or provide the demographic leverage within Israel to allow Palestinians to insist on full democratic rights, producing political equality that would supersede the Jewish character of the State of Israel. In short, demographic engineering is designed to guarantee that Palestinians are never able to change or challenge the Jewish character of the State. Other rules, such as prohibiting Palestinian spouses of Israeli citizens from gaining legal residency rights in Israel, also help keep the Palestinians in Israel a small enough minority as to be indefinitely controlled, and thus never in a position to challenge the apartheid regime through elections or by a political movement.

Further, to manage and stabilise its apartheid regime, Israel has created coercive mechanisms to suppress violently resistance and opposition activities, even if non-violent. According to the Parallel Report, Israel is achieving this goal by: “silencing opposition to its widespread and systematic human rights violations committed against the Palestinian people. In order to create a climate of fear and intimidation, Israel has systematically resorted to arbitrary detention, torture and other ill-treatment, and collective punishment, in violation of international humanitarian law, as well as smear and delegitimisation campaigns against individuals or groups, including human rights defenders, seeking to challenge its prolonged occupation, human rights abuses, and apartheid regime over the Palestinian people.”[2]


[1] Al-Haq et al., Joint Parallel Report to CERD on Israel’s 17-19 Periodic Reports (UNOHCHR: November 2019), 65, pp 22

[2] Ibid., 122, pp 43

 

8. Are the Palestinians in Gaza also victims of the Israeli apartheid regime after the Israeli ‘disengagement’ from Gaza in 2005?

Gaza remains subject to the structures of Israeli control, with only the main change brought about by disengagement being modalities of Israeli deployment of its police and military forces. That is, instead of being directly controlled by an internal Israeli security presence, the borders, airspace, and sea access were placed under strict Israeli control, accentuated by a comprehensive brutal and unlawful blockade imposed in 2007. This redesigned form of occupation was severely aggravated by periodic large-scale attacks undertaken at the discretion of Israel, causing massive civilian suffering and loss of life, extensive devastation, and widespread trauma, and including tactics and behavior widely condemned as violations of international criminal law.

From the perspective of international law, the UN, and a consensus of governments, Gaza remains ‘occupied,’ and actually more oppressively so than it was before the ‘disengagement’ plan was put into effect by unilateral fiat. The disengagement plan in 2005 was an Israeli strategy to lessen the economic and political burdens of direct internal forces in a geographical portion of Palestine that is outside the scope of Israeli territorial ambitions.

Israel was also removing Gaza from its sovereign control for demographic reasons, to maintain a clear Jewish majority over time. The fact that the Gaza Strip is an impoverished area of no historical relevance to the Jewish religion. However, the discovery of natural gas reserves off the Gaza coast did give Israel an economic incentive to retain control over the economic and political developments of Gaza, and has already somewhat altered Israeli long-term strategy.  

Even more true than elsewhere, for Palestinians living in the Gaza Strip, the Israeli apartheid regime established, beyond doubt, a pattern of intentional racial domination that relies on ‘inhuman acts’ to maintain its control, and ruthlessly suppresses opposition and resistance activity. 

9. How does the Israeli apartheid regime differ from its precedent, South Africa?

As observed earlier, the test of whether a State is practicing apartheid is not how its practices accord with those of apartheid South Africa but how they accord with the definition in international law, particularly the detailed definition formulated in Article II of the Apartheid Convention. As already mentioned, Israel practices all the ‘inhuman acts’ listed in the Apartheid Convention except those associated with genocide (which South Africa did not practice, either). However, it has been argued to be quite different from the South African case on several grounds.  

One difference, often cited by observers and by Israel’s advocates, is that Israel provides voting rights to Palestinian citizens of Israel while South Africa denied this right to black and other non-white South Africans. In some views, this difference definitively proves that Israel cannot be considered an apartheid regime. However, it is an old axiom of democratic theory that the right to vote is ineffective for permanent minorities. Most democracies therefore have laws to ensure that permanent minorities are not excluded juridically on any basis that will permanently marginalise their influence on legislation. In Israel, by contrast, the Palestinian population is openly considered a ‘demographic threat’ to Jewish statehood and a complex of laws ensures that the Palestinian population remains a minority safely small enough to exclude the possibility that it could ever alter the Jewish-national ‘character’ of the State. These laws include practices noted earlier, such as prohibitions on the return of Palestinian refugees coupled with laws encouraging and facilitating immigration (‘return’) by Jews and bans on spouses moving into Israel in the case of marriage by Palestinian citizens of Israel to non-Jews outside the State. The ban on mixed-marriages also ensures that a mixed-race society does not develop inside Israel that could eventually challenge the laws that privilege Jewish citizens. 

Taken as a whole, this system of demographic engineering illuminates the importance to Jewish statehood of Israel’s occupation of the occupied Palestinian territory. Israel’s control of these territories ensures that some five million Palestinians in these territories cannot organise politically in any way that threatens Israel’s control over their movement, particularly by precluding their becoming citizens of Israel.

A second difference relates to the purpose of the regime. The white-settler society in South Africa needed the labour of the black South Africans, although it was concomitantly concerned to preclude black (and Indian) South Africans from competing with white industry and farms. Apartheid laws were therefore designed to keep the non-white population politically excluded yet economically integrated at the bottom rung of the national economy.  In Palestine, the Zionist movement aimed, by and large, to replace Palestinian labour with Jewish labour.  Although Israel still makes some use of Palestinian labour (notably in settlement construction), State policy aims mainly to confine, segregate and suppress the Palestinian population in occupied East Jerusalem and Area C of the West Bank in order to prevent their economic growth and any social mixing with Jews. (Although it is not State policy, some voices in Israel urge further ethnic cleansing of the Palestinian minority living in Israel).  

Important here, however, is that the benchmark for a finding of apartheid is the purpose of racial domination, not the uses to which that domination is put. Racial discrimination itself violates international law and extending racial discrimination to comprise a comprehensive regime of racial domination is a crime against humanity whether or not the oppressed group has some subordinated function in the dominant society and its economy.

10. Will the crime of apartheid be ended if Israel ends its occupation of the occupied Palestinian territories?

Ending apartheid requires ending all practices and policies of racial discrimination so as to end any system of racial domination. This cannot be achieved by re-drawing or moving borders. Apartheid remains illegal within any territory, and so cannot be ended by restricting it to an adjusted border. 

This legal fact brings attention to the fundamental problem of Israel’s self-definition as a Jewish-national State. Israel’s policies in the occupied Palestinian territories – including Jerusalem and with respect to Palestinian refugees are all designed to help preserve this Jewish-national supremacy within Israel. In this light, ending the occupation or any partition solution that preserves such a system would not end apartheid.  The only way to end Israeli apartheid is to reject and dismantle the structures of ethnic domination and reunite all people in Mandate Palestine on the basis of full equality in dignity and rights. 

Some suggest that the aim of eliminating apartheid in Israel is tantamount to ‘destroying Israel’. However, a State does not cease to exist as a result of democratisation, especially if the regime that is dismantled was built to perpetuate a prolonged crime against humanity.  Eliminating the apartheid regime in South Africa in no way altered South Africa’s ‘existence’ as a State and indeed raised its international legitimacy and stature.

The questions and answers above are extracted from the United Nations report titled Israeli Practices towards the Palestinian People and the Question of Apartheid, prepared by Professors Richard Falk and Virginia Tilley, and published by The Economic and Social Commission for Western Asia (UNESCWA) in March 2017.

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