The Apartheid Reports: A Paradigm Shift on Israel/Palestine (Part I)

[Dr. Smadar Ben-Natan is an Israeli and international lawyer, and postdoctoral fellow at the University of Washington, Seattle. She studies the intersection of international law, human rights, and criminal justice in Israel/Palestine, and has published on Israeli military courts, POW status, torture, and extraterritorial human rights.]

[A previous version of this commentary was published in Hebrew by the Forum for Regional Thinking, part of the Van Leer Jerusalem Institute. The author is a board member at B’tselem, one of the organizations discussed in this commentary.]

Over the last 18 months, several reports by human rights organizations defined the Israeli regime as apartheid and provoked a vigorous public debate in Israel and around the world. Two recent examples include a report by Amnesty International published on February 1, 2022, stating that Israel maintains an apartheid regime. Israel is described as employing “a system of oppression and domination over Palestinians wherever it exercises control over the enjoyment of their rights – across Israel and the OPT and with regard to Palestinian refugees.”  A few weeks later, the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, Michael Lynk, concluded  that Israel’s rule over these territories currently constitutes apartheid. These two reports follow several others issued in the last year, constituting together a paradigm shift in the human rights world, in which “apartheid” is replacing “occupation” as the leading analytical framework for critique of Israel. Politically, the use of the apartheid framework has a strong mobilization potential. It advances an analogy to South African apartheid, which was strongly condemned, suffered international sanctions, and was ultimately defeated with an inspiring transition to democracy. This commentary, however, focuses on the legal framework of apartheid and on the discourse and activity advanced by human rights NGOs. What are the possible reasons for the emergence of this new apartheid framework and discourse? What are the differences between the reports of the various organizations? And what are some of their potential implications?

Apartheid in International Treaties

The word apartheid – literally, separateness – originates in the regime enforced in South Africa between 1948-1994 by the Afrikaner National Party, a system of legally institutionalized segregation and discrimination against non-white racial groups. Following efforts by the South African Anti-Apartheid movement, apartheid became a legal term in international law, with an independent definition that is not based solely on the analogy to South Africa. Under international law, apartheid was prohibited in three main conventions. First, the International Convention on the Elimination of All Forms of Racial Discrimination from 1965 (ICERD) condemned apartheid and racial segregation – governmental policies based on racial superiority or hatred – as a particularly egregious form of racial discrimination, which state parties to the Convention committed to prevent, sanction, and eliminate. The term “race” in expressions such as “racial group” or “racial discrimination” is not confined to “biological” racism. Race as a biological category has long been discredited and its very existence is no longer acceptable.  Instead, race is understood as a social construct attributing inferiority to a population group distinguished by factors such as ethnic origin, religion, culture, and other collective traits. Thus, for example, the ICERD defines racial discrimination as “any distinction, exception, limitation or preference established on the grounds of race, color, family lineage, national or ethnic origin which has the purpose or effect of nullifying or impairing … enjoyment or exercise … of human rights and fundamental freedoms”.

Subsequent conventions have made apartheid an international crime that can lead to criminal liability for individuals: the International Convention on the Elimination and Punishment of the Apartheid Crime of 1973 (Apartheid Convention), and the Rome Statute of the International Criminal Court of 2000 (Rome Statute) that determined the crimes under the jurisdiction of the International Criminal Court (ICC). The First Additional Protocol to the Geneva Conventions of 1977 also includes a prohibition on “practices of apartheid and other inhumane and degrading practices,” making these practices a war crime. Apartheid is listed in the Protocol along with other forms of inhumane and degrading practices based on racial discrimination, without a detailed definition of the term, arguably relying on the definition in the Apartheid Convention.

The Apartheid Convention in turn defines the crime of apartheid as “inhuman acts committed in order to establish and maintain control of one racial group of human beings over any other racial group of human beings and to systematically suppress them.” The Rome Statute includes a similar definition: “inhumane acts of a character similar to those referred to in paragraph 1, 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.”

The apartheid reports by human rights organizations discussed below rely on the definitions of international law. Importantly, however, the legal debate does not exhaust the various aspects of apartheid. Well beyond the legal definitions, apartheid is also a political regime and a historical phenomenon. The growing public and academic debate about it is therefore much broader, involving political scientists, historians, sociologists, geographers and researchers from other fields in  the increasing academic and public research and debate. Even the international conventions include two framings of apartheid: as a political regime and as an international crime. ICERD relates to governmental policies and hence a regime, and the Apartheid Convention and the Rome Statute relate to crimes that are committed in the context of, and as part of an institutionalized regime: the crime of apartheid can only be committed in the context of a regime. However, the definition of the crime of apartheid, in line with rules of international criminal law, focuses on specific criminal “inhumane acts” that can be attributed to individual officials, and therefore applies a much narrower definition than that of apartheid as a regime.

Apartheid Claims are Not New

In the international legal arena, claims that Israel maintains an apartheid regime are not new. As early as the 1960s and 1970s, Fayez Sayegh, the UN Special Rapporteur on the Implementation of the ICERD, argued that Israel practiced apartheid and introduced the term into the critical international discourse on Israel. Similar claims have been made in the academic and international-legal discourse by many Palestinian scholars and human rights experts, such as the UN Special Rapporteur on the State of Human Rights in the Occupied Territories, Prof. John Dugard, in 2007. A 2017 report by the United Nations Council on Socio-Economic and Cultural Rights (West Asia Division – ESCWA), written by Prof. Richard Falk, former Special Rapporteur on the State of Human Rights in the Occupied Territories, and Prof. Virginia Tilly, also determined that Israel maintains an apartheid regime, but was quickly shelved by the UN Secretary-General after pressure from the United States and Israel. Most of the discussion in these reports focused on the situation in the Occupied Palestinian Territories (OPT) – the West Bank and Gaza Strip – but was not limited to these territories. In 2018, a group of Palestinian human rights organizations (Al-Haq, Badil, the Palestinian Center for Human Rights, a-Damir, the Al-Mizan Center for Human Rights, the Civil Coalition for Palestinian Rights in East Jerusalem, the Cairo Institute for Human Rights and the Beatat Coalition for Housing and Land Rights) submitted a comprehensive report to the UN Commission under the ICERD. The report treated Israel and the OPT as part of the same regime, addressing structural and legal forms of discrimination, including the newly legislated Nation State Law (Basic Law: Israel – the Nation State of the Jewish People) from 2018.

Recently, the apartheid discourse has been amplified after being adopted by the prominent Israeli human rights organizations Yesh Din and B’Tselem, by leading international organizations such as Amnesty International and Human Rights Watch (HRW), and most recently by the UN Special Rapporteur. These reports rely on data, evidence, and analysis by their own investigators and by Palestinian NGOs.  To give a brief overview, in July 2020, the Israeli organization Yesh Din published a legal opinion on the commission of the crime of apartheid by Israel in the occupied West Bank. In January 2021, B’Tselem published a position paper defining the regime in the entire territory controlled by Israel as apartheid.  In April 2021 the international organization HRW published a comprehensive report  that referred to the entire Israeli-controlled area as meeting the definition of apartheid.  In February 2022, Amnesty International claimed in its wide-ranging report that apartheid has been practiced in all Israeli-controlled territories ever since 1948. Finally, in late March 2022 Special Rapporteur Michael Lynk submitted a report to the UN Human Rights Council arguing that a transition “from occupation to apartheid” has occurred. This brief description already gestures at the essential differences between the various reports, to which I will return later; but they all have in common the statement that apartheid is practiced as a regime, or committed as a crime, in at least part of the territory under Israeli control.

Why Now?

There are numerous reasons for the current emergence of the apartheid discourse, some of which can be gleaned from the reports themselves. The prolonged Israeli military control and civilian settlement in the OPT, and the disappearance of the two-state solution (or any other possible resolution) from the political horizon have undermined the relevance of the laws of occupation under international law as an analytical framework. Occupation refers to temporary military control of an enemy territory until a bilateral political solution or a unilateral withdrawal, while the unilateral annexation of territory is considered illegal. Although this process of the last twenty years is undoubtedly the backdrop to the apartheid shift, it still does not provide a sufficient explanation. For one thing, despite many indications over the years that Israel intends to retain control of the territories, its stated policy has been to reach a political settlement with the Palestinians in the foreseeable future.

More recently, and particularly during the Trump administration, the declared Israeli policy regarding the future of the OPT as well as the political regime within Israel have changed. The combination of these two changes has created a paradigm shift toward treating of Israel and the OPT as a single unit of analysis. The reports all point to the change in the declared position of the Israeli governments, pointing out not only the denial of the feasibility of a political end to the occupation, but also a lack of political will for such a solution. The desire to annex the territories (without giving equal rights to their residents) has been openly expressed and culminated in the plan of former US President Donald Trump, dubbed the “deal of the century”, which favored such a possibility. But even when short-term annexation plans were abandoned, the declared Israeli political intentions, including those of the current government, support the maintenance of the status quo and lean towards conflict management over conflict resolution. Declaratory changes regarding the regime occurred within Israel as well, perceived as affecting both the status of the OPT and the rights of Palestinian citizens of Israel. A series of bills and laws in the Israeli legislature (the Knesset) attempted to legalize and entrench the status of OPT settlements established on private Palestinian land, applied extensive parts of Israeli law in the territories (even if only to the settler population), and banned various types of protest and resistance, such as in the laws known as the “Anti-Boycott Law” and the “Nakba Law.” The process culminated in Basic Law: Israel – the Nation State of the Jewish People, which as a basic law forms part of the future Israeli Constitution (known as the “Nation State Law”). This Law is mentioned in all the apartheid reports and encouraged the consideration of the status Palestinian citizens in Israel as part of the apartheid framework, beyond the occupation framework. The Nation State Law declared that the State of Israel is exclusively the state of the Jewish people, thus signaling that the Arab-Palestinian citizens of Israel do not enjoy equal status. The possible meaning of the Nation State Law is that privileges accorded to Jewish citizens in allocation of land, immigration, and citizenship status, have become constitutionally protected and legitimized as a matter of future policy. Whereas the State of Israel was previously self-defined in basic laws as “Jewish and democratic”, the Nation State Law established a constitutional norm prioritizing the state’s Jewish aspect over its democratic aspect. Against the backdrop of these parallel processes, the paradigm of a single regime gained prominence.

Additional developments took place at the international level, chief among them the opening of an investigation in the International Criminal Court (ICC) regarding the situation in the territories occupied by Israel in 1967. The UN General Assembly’s recognition of Palestine as an observant state in 2012 paved the way for the Palestinian Authority to accede to the Rome Statute and file a complaint against Israel for the commission of war crimes. In February 2021, the pre-trial chamber ruled that the ICC has jurisdiction over the case, following which the ICC prosecutor announced the opening of an investigation. The crimes examined by the prosecutor thus far have been war crimes (on the part of Israel, Hamas, and other armed Palestinian groups), but the investigation is not technically limited to these suspicions and may include any crime within the jurisdiction of the Court. The crime of apartheid, which is not defined as a war crime but as a crime against humanity, is under the jurisdiction of the court under the Rome Statute, and therefore the current investigation can examine whether the crime of apartheid was committed. The ICC is a principal international arena for substantiating findings on human rights violations, and the international human rights organizations’ reports address the ICC prosecutor directly, requesting an investigation into the crime of apartheid. If the prosecutor accepts, this will be the first time that the crime of apartheid will be examined by the ICC.