It is common knowledge within the legal community that Israeli occupation of Palestine has been increasing at an alarming pace. The new question being asked, however, is not whether this is occupation but, rather, whether it constitutes apartheid under international law and, if so, how we move forward. In March 2022, the United Nations (UN) Special Rapporteur of human rights in Palestine issued a report accepting that the state of occupation of Palestinian territories has now transitioned from a forced occupation to the crime of apartheid. This article breaks down how this conclusion is reached into small, digestible sections and highlights the importance of the wider community reaching a similar conclusion.
There is broad international consensus that Palestine is an occupied territory, that this occupation is being implemented by force, and therefore we must start by examining the laws governing occupation. In this regard, legal analysis on occupier violence starts with articles 43 and 46 of the Hague Regulation. The regulation requires an occupying state to “restore, and ensure, as far as possible, public order and safety”. What this means in context is that Israel, as an occupier, has the obligation to abide by the Hague Regulation, including protecting the Palestinian population against all acts or threats of violence.
None of the above measures have been fully realised by Israel. The special rapporteur refers to instances where settler violence has been rampant (para. 7) and civil societies targeted (para. 9). Israel has conducted its occupation in sheer defiance of international law. The policies behind its occupation, which can be encapsulated nicely by Israel’s former Prime Minister’s explanation in 2019 that “…maintaining a separation policy between the Palestinian Authority in the West Bank and Hamas in Gaza helps prevent the establishment of a Palestinian state”. Israel has progressively engaged in both the de jure and the de facto annexation of the occupied territory, engaging in annexations that are legally sanctioned and those that are not (para. 15). Time and time again Israel has chosen to disregard the laws that govern our humanity and chooses to deny the protections afforded by these laws toward the people of Palestine.
We can start to see a transition from the legal status of occupation towards apartheid. The starting point is the special rapporteur’s statement that the above-mentioned circumstances have created a legal oxymoron: an occupation in perpetuity (para. 15).
THE LEGAL FRAMEWORK DEFINING APARTHEID
The special rapporteur asserts that even the consensus of illegality regarding Israeli occupation “capture[s] the full extent of the qualitative changes occurring in the Palestinian territory” (para. 16). What this means is that whilst the laws of occupation continue to apply within the Palestinian territory, they no longer aid in understanding the situation. We need a new legal framework to better understand and assess the situation; that legal framework can be found within the laws governing apartheid. The move from a forced occupation to an apartheid system is substantiated in the report due to the increasing permanence of the occupation by Israel, with no substantial reason to believe that any temporariness of the situation will continue.
The legal prohibition of apartheid is well-established through both customary and conventional international law, regarded today as a jus cogens norm, meaning that no derogations from the norm are permitted. Apartheid being a jus cogens norm gives rise to obligations erga omnes, which creates a legal duty on all states to cooperate to end its violations. As the General Assembly declared in Resolution 2396, the starting point to the crime of apartheid is to “deny the majority population its right to self-determination”. Self-determination is crucial to a state’s achieving independence or some form of autonomy. This prohibition of apartheid applies to every nation state, regardless of whether it has ratified the principle or joined an international instrument outlawing apartheid. It is not optional.
The definitions of apartheid are contained in both the Convention Against Apartheid and the Rome Statute. Whilst they contain differences within their provisions, the report asserts that these differences are legally reconcilable (para. 35), and a definition of apartheid can be drawn from the following three features: first, there exists an institutionalised regime of systematic racial oppression and discrimination; second, this is established with the intent to maintain the domination of one racial group over another; and third, inhumane acts are committed as an integral part of the regime in question.
APPLYING THE DEFINITION OF APARTHEID TO THE PALESTINIAN SITUATION
Looking at this first criterion, within Palestine an institutionalised regime of systematic racial oppression and discrimination has been established. The political system in place, which denies rights and benefits to non-Jewish members of the state, ensures supremacy of one group over the other (para. 45). Palestinians are severely restricted through Israeli military orders to exercise their rights to freedom of expression, assembly, association, and movement via being confined in travel by hundreds of checkpoints. These checkpoints also restrict their ability to leave and return to Palestine. The general population also has its right to work impeded by a suffocated economy and the continuous fragmentation of its territory. All these features play a role in the denial of a full participation in all features of a society (para. 53). The differences in rights serve as identifiers to the differences in living conditions and distribution of rights (para. 49). The system serves to enshrine deeply discriminatory views and is maintained through systemic and institutionalised oppression.
Now turning to the second criterion, it is a widely held view within the international community that Palestine is an occupied territory and, therefore, Israel as the occupying state has an obligation to follow the strict rules governing occupation under the Geneva Convention. Interestingly, the UN special rapporteur took Israel’s policy of disobedience to the applicable principles of international law to be “the obfuscation of an acquisitive occupier determined to maintain permanent control over the land and indigenous population” (para. 51). The enactment of the Israeli constitution entrenches racial-national discrimination into Israel law by distinguishing between the rights of Jewish citizens and non-Jewish citizens (para. 52). This creates a system of alien rule that is established with the intent of maintaining dominance over one racial-national-ethnic group over another. The duality of this rule, and the fact that Israel is planning a further expansion of Jewish settlements, would lead to the further subjugation of the Palestinian people and, inevitably, the freedoms of a certain group are “intrinsically bound with the subjugation of the other”.
Now considering the third criterion, the denial of the right to life and liberty, of full participation, and self-determination, alongside policies that aim to divide the population along racial lines, are recognised in the special rapporteur’s report. These all meet the necessary threshold to constitute inhumane actions committed as an integral part of the regime (para. 53).
The imposition of the system mentioned above is undeniably founded upon the practice of inhumane acts. Examples here include the use of systemic torture, violent killings of children, and the denial of fundamental human and humanitarian rights for a specific ethnic group (para. 58). In order to systematically implement extra-judicial killings and the denial of rights, a flawed military court system that allows arbitrary detention and denies criminal due process has been founded. These actions, combined with their endorsement by the Israeli judicial system, indicate to the international community that these are not isolated incidents but integral to Israel’s system of rule (para. 58).
MOVING AWAY FROM THE TRADITIONAL VIEW OF APARTHEID
The crux that underpins the UN special rapporteur’s assertion of apartheid lies in the conduct of the occupation, which has surpassed temporariness and forms “permanent alien rule over occupied territory” (para. 40), thereby making it indistinguishable from annexation in international law. Applying the three criteria of the amalgamated test from the Convention Against Apartheid and the Rome Statute, the special rapporteur concludes that the political system, which aims to subjugate a certain ethic group to live behind permanent military rule, whilst restricting the rights they are entitled to under international humanitarian law, satisfies the prevailing evidentiary standard for the existence of the crime of apartheid (para. 55).
The special rapporteur has confirmed that this is apartheid (para. 59). Whilst this situation does not contain the features that come to mind when thinking of apartheid as seen in the context of South Africa, there are root features of Israel’s “apartness rule” (para. 59) that satisfy the threshold of what we understand to be apartheid under international law today. This recognition of apartheid by the report is not new in any way, previous actors such as Amnesty, Human Rights Watch, and B’Tselem have argued that Israel’s forced occupation constitutes apartheid. However, the special rapporteur’s recognition is important; it highlights an increasing trend within the legal community that Israel’s continued forced occupation, and the actions it takes in implementing it, are unacceptable under the international law of apartheid.
Joyce is currently a 2nd-year student at the University of Manchester, pursuing an LLB. She is keenly invested in the documentation of Human Rights issues, with a specific interest in the rule of law, constitutional law, and transitional justice.