By Heather Galbraith
Is it true? Is Israel an apartheid state? Or is it a propaganda myth by the Palestinians? The case for declaring Israel guilty of apartheid is a controversial one. There is much debate about whether the Israeli policies in relation to Palestinians constitute true apartheid. In order to examine this question, we must first establish what apartheid is, then test if Israeli policies correspond with this definition. This article will focus solely on the case of Palestinians living within the borders of Israel and will not address the situation in the occupied territories.
Apartheid is classified as a crime against humanity under Article 7(1)(j) of the Rome Statute of the International Criminal Court 2002 (hereafter referred to as the ‘Rome Statute’). Although Israel has yet to ratify this Convention, it provides a definitive definition of what apartheid is and so it helps us to understand whether Israel is committing it without concern for prosecution, at this time. Apartheid is then defined in Article 7(2)(2)(h) as ‘inhumane acts of character’ in the context of ‘systematic oppression and domination by one racial group over any other racial group’ and furthermore is committed ‘with the intention of maintaining that regime’.
For an expanded definition of the types of suppression constituting apartheid it is important to consider the International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 (hereafter referred to as the ‘Apartheid Convention’). While, again Israel is not a party to this Convention, it remains a useful resource for defining the meaning of apartheid and determining whether Israel is guilty of such acts.
The definition provided in Article 2 of the Convention lists a series of acts that may constitute apartheid but it is important to note that at no point in the Convention does it state that these are cumulative. Legal interpretation would therefore suggest that any of the relevant acts listed in Article 2(a)-(f) ‘committed with the purpose of establishing and maintaining by one racial group of persons over any other racial groups of persons and systematically oppressing them’ could constitute the crime of apartheid.
It is important to consider the different acts proposed by the Convention as constituting apartheid in order to determine whether Israel has committed any of these acts. Article 2(a)(iii) states that arbitrary arrest and illegal imprisonment constitutes a denial of the liberty of person which means it could be apartheid. Furthermore, denial of basic rights and freedoms, including the rights to freedom of movement, expression and association (Article 2(c)), prevention from participation in political, social, economic and cultural life (Article 2(c)), any measures designed to divide population along racial lines such as the creation of reserves and ghettos (Article 2(d)), the prohibition of mixed marriages (Article 2(d)) and the expropriation of property of a group (Article 2(d)) all constitute acts of apartheid when carried out with the intent to establish one racial group over another.
Furthermore, by using the phrase ‘any measures, including legislative measures’ (Article 2(d)) and ‘any legislative and other measures’ (Article 2(c)) the Convention would suggest that the measures taken to suppress do not necessarily have to be contained in law.
Now that the definition of what constitutes apartheid is clear, we must consider Israeli policies and behaviour in order to determine whether these constitute apartheid.
For a comprehensive list of all the discriminatory laws in Israel against the Palestinians see the Adalah database. The ‘Nakba Law’ allows the finance minister to withhold state funding of any event that rejects the existence of Israel, including the Palestinian day of mourning, held on Israeli Independence Day. This directly impacts Palestinian freedom of expression, freedom of association and demonstrates a clear discriminatory practice. Furthermore, the Foreign Property Ownership Law prevents anyone from selling, renting or bequeathing property to anyone who is not an Israeli citizen or a Jew. This is another clear case of discrimination against Palestinians who are unable to transfer land ownership to anyone who is not an Israeli citizen, this could include their close family members who happen to live outside the border of Israel. As Israeli citizens are allowed to transfer land ownership to anyone who is Jewish, they are not subject to the same arbitrary restrictions as Palestinians and thus it is a clear case of discrimination.
The Law of Political Parties – Amendment No. 12 prohibits registration of political parties that deny the existence of the state of Israel and furthermore, the parties will not be registered if its goals or actions directly or indirectly support the armed struggle of an enemy state. These provisions clearly affect the Palestinians participation in political and cultural life with the aim of establishing Jewish supremacy over Palestinians and deny Palestinian freedom of expression and association. The Adalah website explains in detail the discriminatory nature of several Israeli laws, that point to an intention by Israel to ‘establish and maintain domination by one racial group’.
An integral part of the definition of apartheid, as explained above, is that the measures need not necessarily be contained in law, suggesting they can be policy or other measures. Israel has arbitrarily demolished Bedouin homes within the borders of Israel and the Parliament gave initial support to an extremist law that would prevent Bedouins from contesting these demolitions. This evidently interferes with Bedouin rights to participate in political, economic, cultural and social life as it renders them internally displaced persons. Furthermore, it heavily impacts their fundamental human rights contained in the Universal Declaration of Human Rights.
These are just some examples of the kind of discrimination faced within the borders of Israel. Many more can be found in the sources listed below that suggest Israel is committing inhumane acts for the purpose of establishing and maintaining domination by one racial group over others.
An argument often used against the term of apartheid being applied to Israel is that it does not match the apartheid of South Africa. This is a weak and legally unsound argument. Although the Apartheid Convention mentions South Africa, it only calls for ‘similar policies and state practices’ and is only a small part of the definition. There is no requirement that Israeli policies must match the scale or severity of apartheid legislation in South Africa and furthermore, no stipulation that any case that does not directly reflect the system of apartheid in South Africa cannot be apartheid. It is also interesting to note that the Rome Statute makes no mention of South Africa in its definition and therefore, any argument suggesting Israeli legislation and policies cannot equate to apartheid because it looks different than it did in South Africa is completely irrelevant. Legally, any state that matches the criteria for apartheid as set out in the aforementioned Conventions can be guilty of such a crime.
We need look no further than the Basic Laws of Israel to establish that Israel is primarily a Jewish state and thus is implementing discriminatory practices as outlined above which may constitute apartheid. For example the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation directly refer to Israel as “a Jewish and democratic state”. This suggests an intent to establish domination of one racial group over another which is informative of the general strategy of the Israeli government even if it does not constitute apartheid in itself.
As demonstrated, Israel is clearly guilty of apartheid within its own borders against the Palestinian people. Therefore, it is guilty of violations of international law, as contained in the Rome Statute, and the Apartheid Convention (although it has not ratified these so could not be held accountable under these conventions) and is guilty of a grave breach of the Geneva Conventions. The illegality of apartheid is also a norm of customary international law and so Israel is in violation of customary international law and can be held accountable under this norm and for a grave breach of the Geneva Conventions.
Considering that Israeli policies clearly constitute apartheid as defined in several Conventions, the international community should act on this. We cannot allow the Israeli state to continue to enforce apartheid while standing by and doing nothing. Israel must be held to account in order to end their discriminatory practices and principles. It is the responsibility of every member state of the UN to ensure no country can commit crimes against humanity with impunity and of every individual to speak out against Israeli apartheid.
If we fail to hold Israel to account then we act to undermine international law and its impartial application. It sets a precedent that states can continue to discriminate internally without fear of consequences from the international community, especially if they have the support of a super power. If the global democracies intend to uphold human rights and encourage the spread of democracy then allowing Israel to act with impunity thwarts any progress towards this goal and embarrasses the states that lend their support to Israel. We cannot let Israel get away with this flagrant violation of international law. Israel is an apartheid state.
 Adalah, http://www.adalah.org/en/law/index, last accessed 02/12/16
 Amendment 40 to the Budget Foundations Law, passed 2011
 Foreign Property Ownership – Israel Lands Law (Amendment No.3), 2011
 See explanation on Law of Political Parties – Aendment No. 12 on Adalah’s website http://www.adalah.org/en/law/view/512, last accessed 02/12/16
 For further historical analysis of apartheid laws in Israel see “Israeli Apartheid – A Basic Legal Perspective”, D. Kirshbaum, 2007, available at http://www.palmediaproject.org/html/ilrc/israellaws/essays/israellawsessay.htm, last accessed 02/12/16
 https://www.hrw.org/world-report/2014/country-chapters/israel/palestine see the Israel section for details, last accessed 02/12/16
 See for example “Israel has many injustices but it is not an apartheid state”, B. Pogrund, May 2015, The Guardian http://www.theguardian.com/commentisfree/2015/may/22/israel-injustices-not-apartheid-state
 Article 2 International Convention on the Suppression and Punishment of the Crime of Apartheid 1973
 Basic Law: Human Dignity and Liberty 1992, Section 1
 Basic Law: Freedom of Occupation 1994, Section 2
 Article 85(4)(c) Protocol Additional to the Geneva Conventions of 12 August 1949 And Relating To The Protection Of Victims Of International Armed Conflicts (Protocol 1) of 8 June 1977
 ICRC, Customary IHL, Chapter 32, Rule 88, Section E, Paragraph 1 available at https://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter32_rule88_sectione last accessed 02/12/16
Amendment 40 to the Budget Foundations Law, passed 2011, available at http://www.adalah.org/uploads/oldfiles/upfiles/2011/discriminatory_laws_2011/Nakba_Law_2011_English.pdf
Basic Law: Human Dignity and Liberty 1992, available at http://www.mfa.gov.il/mfa/aboutisrael/state/law/pages/basic%20laws%20of%20the%20state%20of%20israel.aspx
Basic Law: Freedom of Occupation 1994, available at http://www.mfa.gov.il/mfa/aboutisrael/state/law/pages/basic%20laws%20of%20the%20state%20of%20israel.aspx
Foreign Property Ownership – Israel Lands Law (Amendment No.3), 2011, http://www.adalah.org/en/law/view/493
Human Rights Watch, World Report 2014: Israel and Palestine, Events of 2013, https://www.hrw.org/world-report/2014/country-chapters/israel/palestine
ICRC, Customary IHL https://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter32_rule88_sectione
International Convention on the Suppression and Punishment of the Crime of Apartheid 1973, https://treaties.un.org/doc/Publication/UNTS/Volume%201015/volume-1015-I-14861-English.pdf
Kirshbaum, D. “Israeli Apartheid – A Basic Legal Perspective”, 2007, available at http://www.palmediaproject.org/html/ilrc/israellaws/essays/israellawsessay.htm
Pogrund, B. “Israel has many injustices but it is not an apartheid state”, May 2015, The Guardian http://www.theguardian.com/commentisfree/2015/may/22/israel-injustices-not-apartheid-state
Protocol Additional to the Geneva Conventions of 12 August 1949 And Relating To The Protection Of Victims Of International Armed Conflicts (Protocol 1) of 8 June 1977, https://www.icrc.org/ihl/INTRO/470
Rome Statute of the International Criminal Court 2002, https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf