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

[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.]

Part I of this commentary described the various apartheid reports and explained the definition of apartheid in international treaties and the possible reasons for this paradigm shift: a combination of changes in Israel’s declared policies in the OPT, legal changes inside Israel, and international legal changes leading to an investigation by the ICC prosecutor. The following part will analyze the differences between the reports and their possible implications.  

The Apartheid Reports: The Regime Approach and the Crime Approach

The various NGO reports are strikingly different from one another. The differences range from their territorial framing (Israel and the OPT or the OPT alone), historical framing (starting with the establishment of Israel in 1948 or after 1967 in relation to the OPT), and their focus on apartheid as a crime or as a regime, which I shall refer to as the “crime approach” or the “regime approach”. They also suggest divergent possibilities to rectify this situation.

The reports by ESCWA and the Palestinian human rights organizations adopted the “regime approach,” taking a very broad framework and arguing that apartheid exists in the entire territory under Israeli control since 1948, being the constitutive logic of the State of Israel (raison d’état). At the same time, regarding suggested solutions, they adhere to the requirements of international human rights law, calling for repealing laws that discriminate against Palestinian citizens in the State of Israel and recognizing the rights of return and of self-determination of the Palestinian people.

The document written by the Israeli organization Yesh Din is the narrowest one and was defined as a “legal opinion” on the “Israeli occupation of the West Bank and the crime of apartheid.” The opinion examines whether Israeli officials commit apartheid as an international crime in the occupied territories of the West Bank (without referring to East Jerusalem, which has been annexed by Israel but is considered occupied under international law), reaching a positive conclusion. The organization explained its focus on the West Bank by the expertise and knowledge it had gained in this area only. However, the opinion does not rule out the possibility that apartheid as a regime is more extensive. The focus on the OPT is also evident in the temporal framing of the report to the post-1967 period, when government statements and legislative changes have become increasingly explicit in their intentions, narrowing the gap that existed in the past between actions and words.

In January 2021, B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, published a position paper concluding that   over the years, the regime in Israel and the territories has become an apartheid regime. The short document does not include any legal analysis of the crime of apartheid but focuses on an analysis of the regime’s actions and goals. According to B’Tselem, Israel is undergoing a gradual process that began sometime after 1967, which aims to preserve Jewish supremacy in the entire space consisting of the State of Israel, the West Bank, East Jerusalem and the Gaza Strip, where group-based entitlement to various levels of rights is an essential part of the organization of the regime. B’tselem’s territorial scope is thus wide, while its temporal framework is narrow.  

The Human Rights Watch (HRW) report presents an analysis similar to B’Tselem’s in terms of territorial and temporal scope but differs from it in examining both the regime and the crime. The organization has found that while the elements of systematic and widespread repression with the intention of maintaining the superiority of one group exist both within Israel and in the OPT, only in the OPT (including East Jerusalem) does the severity of inhumane acts make them criminal. This report thus creates a distinction between the regime and the crime, arguing that while elements of apartheid regime exist throughout the territory, the international crime of apartheid is committed only in the OPT. The report’s recommendations for Israel include the cessation of crimes, but HRW also emphasizes the demand from other parties to stop their complicity with these crimes, including the international community, the business community, and even the Palestinian Authority, which according to the report is complicit through its security cooperation with Israel. In this respect, the HRW view of international responsibilities is wider than previous reports.

Amnesty International’s latest report takes the far-reaching position that apartheid, as a crime and as a regime, has existed since the establishment of Israel in 1948, and in the OPT after 1967. It is the only report so far explicitly arguing that crimes of apartheid have been perpetrated inside Israel since 1948, and accordingly considers many Israeli policies as falling under the category of inhumane acts, such as preventing the return of Palestinian refugees, expropriating land, imposing military government on Palestinian citizens of Israel until 1966, anchoring the Jewish character of the state in legislation, and placing legal barriers on challenging this definition. The report’s recommendations are also broad and include the cessation of all forms of discrimination, segregation and oppression, a re-examination of discriminatory legal measures, allowing the return of Palestinian refugees to Israel and the OPT, and compensating victims.

In line with Amnesty International’s activity, which is not solely legal, Amnesty calls for solidarity with human rights and civil society organizations that have been outlawed over the years, including the Israeli Defense Minister’s decision of October 2021 to outlaw six Palestinian human rights NGOs. Amnesty also includes recommendations to the international community to hold Israel accountable, and to other countries, including the Palestinian Authority, to ensure that they do not contribute to the maintenance of this regime. Amnesty International states that the treatment of Palestinians by the international community “in the Occupied Territories within the framework of international humanitarian law [Occupation Law, SB] only, and apart from the crimes committed against Palestinians in Israel, represents a failure to deal with the conflict and ensure justice.”

Although the report states that it focuses on violations of international law, statements of the kind quoted above and its very broad interpretive approach create the impression that the criticism voiced by Amnesty is indeed more radical. The report emphasizes not only the treatment of the Palestinian population everywhere under Israeli control, but also the definition of the State of Israel as a Jewish state and the preferential status of the Jewish population group as enshrined in legislation. It refers to Jewish identity as a racial one, based on ethnic, national and religious affiliation. It is therefore understandable that the report was read by Israeli officials and parts of the Israeli public as stating that apartheid is intrinsic to the very definition of Israel as a Jewish state. However, a closer reading shows that the organization is walking a tightrope. The report identifies the policy interpretation that has been given to a Jewish state as maintaining a Jewish demographic majority. However, it reiterates that Israel’s declaration of independence committed to ensure equal rights for all its citizens, and that commitment has not been implemented. That is, a state defined as Jewish but guaranteeing equal rights to all would not have met the definition of apartheid. What is flawed, therefore, according to Amnesty, is not the existence or definition of a Jewish state but its concrete demographic interpretation and implementation. Arguably, then, the definition itself does not indicate an intention to oppress and control, i.e., does not in itself establish an apartheid regime. This was indeed the position of Amnesty’s press release immediately upon publication of the report, adding that Jews, like Palestinians, have a right to self-determination.

The last report so far is by the UN Special Rapporteur (SR) Michael Lynk. This is the first time that a UN appointee conducts a detailed examination of the crime of apartheid with relation to Israel/Palestine. Pursuant to the mandate of the SR, the report examines only the OPT, and reaches the conclusion that Israel’s occupation has turned into a system of apartheid, and that the crime of apartheid is being committed.

Overall, we see that most of the reports which take the crime approach have a narrower focus, highlighting the OPT after 1967. The reports that take the regime approach also include Israel and the treatment of its Palestinian citizens in their analysis. Some of these reports, from either approach, draw a narrative of change from the initial occupation into an apartheid system, while others argue for a continuity of apartheid since Israel’s inception.      

What Now?

The multiple reports and ensuing debate are indicative of the withering away of the two-state solution as the dominant agreed political vision for Israel/Palestine. This withering is apparent in the treatment of Israel and the OPT as one analytical and political unit, and in the demise of the occupation paradigm, and not in any direct position on a two-state or a one-state vision. The reports emphasize the right of the Palestinian people to self-determination, which has been recognized in international law, but do not mention a Palestinian state or a one state as the way to exercise these rights. The demands from Israel, as in the Amnesty report, to grant “equal and full human rights to all Palestinians in Israel and the Occupied Territories in accordance with the principles of international law … and without discrimination”, are relevant to any and every Palestinian population under Israeli control, be it today or in any future arrangement.

The growing list of international human rights organizations arguing that a new apartheid regime has emerged attempts to pressure states, corporations, and international institutions to recognize and take action against Israeli policies, and to affect public opinion and civil society. Most of all, the reports are intended for the ICC prosecutor, and this is where they carry the greatest potential influence. The growing pile of legal documents discussing Israel and apartheid, especially those taking the crime approach, makes it difficult for international legal institutions to ignore the claim. The ICC prosecutor will be almost compelled to consider the evidence, analysis, and arguments included in these reports. Undoubtedly, the international human rights discourse on Israel has taken a paradigm shift. These reports signal to Israel that internationally, maintaining the current status quo could entail significant risks.