Israel’s Apartheid Regime

The existence and prevalence of apartheid in Israel—whether only in the occupied Palestinian Territory (the West Bank , including East Jerusalem , and Gaza Strip ), or in the entire territory controlled by Israel between the Mediterranean Sea and the Jordan River —became a global legal and political issue beginning in the early 2020s. Building on earlier analyses by Palestinian civil society groups, regional and international human rights organizations  published major reports in which they concluded that Israel has been conducting an apartheid system of rule. Many of these reports applied the legal test of apartheid developed through international conventions and statutes to reach this conclusion. 

What Is Apartheid?

Apartheid is a discriminatory political and legal system which emerged out of the white settler-colonial states of southern Africa in the first half of the twentieth century. The word apartheid means “apartness” in Afrikaans, and it described the legislated system of white minority rule over the indigenous African populations in South Africa , South West Africa (Namibia ), and other colonial-ruled states in the region. South Africa formally adopted apartheid as its political system following the election of the National Party in 1948. During the height of its political existence in southern African, apartheid entrenched discriminatory political and legal entitlements favoring its white minority populations, providing them with exclusive or preferential rights respecting voting, property ownership, political representation and legislative law-making, judicial appointments, corporate and trade union leadership, and educational opportunities. Through legislative, police, and military repression, these rights were denied to the majority black African populations. 

Apartheid collapsed in southern Africa between the 1980s and the early 1990s following several decades of wide-spread civil disobedience and armed resistance as well as growing international political and economic sanctions. Yet, even as majority black political rule emerged in South Africa and Namibia, the economic distortions of apartheid have lingered well into the twenty-first century.

International Law and Apartheid

While apartheid is popularly associated with its roots in southern Africa, it has a universal definition anchored in international law which prohibits apartheid wherever and whenever it may exist in the world. The two leading international instruments prohibiting the crime of apartheid are the 1973 International Convention on the Suppression and Punishment of Apartheid and the 1998 Rome Statute of the International Criminal Court .

The 1973 Convention Against Apartheid declared in Article 1 that apartheid is a “crime against humanity.” Article 2 defines the crime against humanity of apartheid as including:

similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

The 1998 Rome Statute, adopted four years after the fall of apartheid in South Africa, provides a forward-looking definition of apartheid with a universal application. In Article 7(2)(h), the Statute defines the crime against humanity of apartheid as:

inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over another racial group or groups and committed with the intention of maintaining that regime.

Notably, the Rome Statute does not make any specific reference to southern Africa, indicating that the existence of apartheid in the world is not limited either in time or in geography.

The International Legal Test for Apartheid

While the 1973 Convention on Apartheid and the 1998 Rome Statute contained some secondary differences in their respective definitions of apartheid, these differences are reconcilable. Accordingly, the contemporary definition of the “crime against humanity of apartheid” that draws from, and is consistent with, these two legal instruments would consist of the following three-part test:

1. There exists an institutionalized regime of systematic racial oppression and discrimination;

2. which has been established with the intent to maintain the domination of one racial group over another; and

3. which features inhuman(e) acts committed as an integral part of the regime.

To determine the existence of crime of apartheid in the modern world, this is the test to apply, rather than asking whether the particular attributes of apartheid from southern Africa can be found in a contemporary situation of systematic racial discrimination.

In addition to these two authoritative prohibitions in international law, apartheid is  proscribed as an internationally wrongful act in international human rights law through the 1965 International Convention for the Elimination of All Forms of Racial Discrimination . As well, in international humanitarian law (the laws of war and occupation), apartheid is prohibited as a wrongful act by Article 85(4) of the 1977 Additional Protocol I of the Geneva Conventions . It defines as a grave breach the “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination.”

Apartheid in Israel/Palestine

Beginning in the early 2020s, this international legal definition of apartheid was applied by the international and regional human rights movement to the situation in Palestine, either in the occupied Palestinian territory (OPT) or, more expansively, in the entire land controlled by Israel between the Mediterranean Sea and the Jordan River.

Application of Apartheid Test to the OPT

A number of human rights advocates, including Addameer and the United Nations Special Rapporteur for human rights in the OPT, have concluded that Israel has imposed apartheid in the West Bank, including East Jerusalem, and Gaza. They have argued that all three parts of the apartheid test have been satisfied. Yesh Din has stated that Israel practices apartheid in the West Bank, while Al-Mezan has reported that the enclosure of Gaza is an integral part of Israel’s apartheid regime.

An institutionalized regime of systematic racial oppression and discrimination

With respect to the first part of the apartheid test, these advocates have noted that a dual legal and political system of rule has been established by Israel in the OPT, reinforced by a dual ID card categorization. The more than 700,000 Israeli settlers living in Jewish-only segregated settlements in the occupied Palestinian territory enjoy the full panoply of legal, political, social and judicial rights enjoyed by other Israeli Jewish citizens. Meanwhile, the almost three million Palestinians in the West Bank are largely governed by more than 1,800 Israeli military orders enforced by a military court system with a conviction rate exceeding 99 percent. In East Jerusalem, the more than 360,000 Palestinians possess a residency status without citizenship or voting rights, and live in congested neighbours with sparse municipal services and a much lower standard of living than Jewish Israelis living in Jerusalem . And in Gaza, the more than two million Palestinians have been quarantined in a narrow strip of land since 2007 through a comprehensive Israeli air, sea and land blockade, amounting, according to Ban Ki-Moon , a former UN Secretary General, to the prohibited practice of collective punishment.

Intentional imposition of systematic discrimination

The second part of the apartheid test asks whether this systematic discrimination has been imposed with the intent to maintain the domination of one racial group over another. The advocates have pointed out that the recent Israeli governmental leadership has adopted a widely held political consensus that Israel will keep East Jerusalem and most, or all, of the West Bank, whether or not there is a peace agreement. Under any such arrangement, the Palestinians would remain under Israel’s permanent security and political control, without citizenship or internationally recognized rights.

Inhuman(e) acts as integral to the regime

The third step of the apartheid test asks whether inhuman(e) acts have been committed as an integral part of the regime. The inhuman(e) acts cited by human rights advocates regarding the occupied Palestinian territory include the denial of the right to life and liberty, the denial of full participation in all features of the society, the inability to exercise the freedoms of movement and association, the entrenched segregation in housing and the economy of East Jerusalem and the West Bank, the ongoing confiscation of Palestinian public and private land, the Israeli exploitation of the dependent Palestinian labor force in the settlements and as day-labourers in Israel, and the frequent use by Israel of collective punishment, administrative detention, torture and extrajudicial killings. The repetition of these acts over a long period of time, and their endorsement by Knesset legislation and the Israeli courts, indicates that they are not the result of random and unintentional practices but are integral to Israel’s system of rule.

Application of the Definition to Historic Palestine, Including Israel

Employing the same three-part legal test, other respected human rights advocates have concluded that Israel is practicing apartheid in the entire territory that it controls between the Mediterranean Sea and the Jordan River. Human Rights Watch , Amnesty International , al-Haq , and B’Tselem , among others, have issued reports that have argued, in essence, that it is impossible to have “democracy here, and apartheid there.” In their view, Israel’s strategic fragmentation of the Palestinian territory and population over the past seventy-five years—the Palestinians in East Jerusalem, the West Bank, and Gaza and within the Green Line ; the Palestinian refugee camps in Lebanon , Syria and Jordan ; and the Palestinian diaspora have been separated by Israel socially, politically, and demographically from each other—amounts to systematic discrimination and the prevalence of apartheid. Some commentary has pointed to the intimate relationship between Israel’s practice of apartheid and its long history—beginning in the early twentieth century—of settler colonialism in Palestine. 

Among the primary features of apartheid which these advocates argue applies to the entire territory controlled by Israel are the 1950 Law of Return (which grants every Jews the right to immigrate to Israel and to obtain automatic Israeli citizenship), the refusal to allow any of the 1,000,000 Palestinian refugees from the Palestine War and the 1967 War or their descendants to return to their homes, and the massive confiscation of Palestinian homes and property and the physical destruction of hundreds of Palestinian communities after 1948 through the Absentees Property Law of 1950 and the Land Acquisition Law of 1953 . Palestinian citizens of Israel are entitled to vote, to run for political office, and to participate in some features of Israeli public life; however, they are severely restricted respecting land ownership and use, they are denied access to some publicly provided social benefits (because most of them do not serve in the Israeli military, a prerequisite for securing some benefits),  they face a discriminatory labor and housing market, and their socio-economic status is considerably worse than Israeli Jews. The Basic Law: Israel, the Nation State of the Jewish People , adopted by the Israeli Knesset in 2018, states that Jews alone have the right of self-determination in this land, and that the development of Jewish settlements is a “national value.”

In its 2021 report, B’Tselem concluded that Israel “has created a regime of Jewish supremacy from the Jordan River to the Mediterranean Sea,” which constitutes apartheid.

Global Response to Human Rights Findings of Israeli Apartheid

Israel and its supporters commonly advance three counterarguments in response to the apartheid designation. The first claims that any such accusations are mendacious and constitute anti-Semitism. The second is that Israel cannot be compared to apartheid South Africa. And the third counterargument maintains that the label of apartheid is a political distraction, which only leads decision-makers away from solving the true problems on the ground. 

As the debate over Israeli apartheid emerged in the early 2020s, governments in the global north have either criticized or ignored the new categorization, but without providing any substantive reasons for their dismissal. The apartheid analysis has found a more receptive audience in the global south, where states such as South Africa, Namibia, Malaysia and Indonesia have adopted the designation.    

Distinguished voices have stated in recent years that Israel’s entrenched policies and practices amount to, or closely resemble, apartheid. Ban Ki-moon, the former United Nations Secretary General, wrote in 2021 that “Israel’s structural domination and oppression of the Palestinian people through indefinite occupation … arguably constitutes apartheid.” Nobel Laurate Desmond Tutu of South Africa stated in 2014: “I know first-hand that Israel has created an apartheid reality within its borders and through its occupation.” And Michael Ben-Yair , a former Israeli Attorney General, said in 2022 that Israel has become “an apartheid regime … a one-state reality, with two different peoples living with unequal rights.”

The political and social trends on the ground in Israel/Palestine point to the entrenchment of the system of apartheid, both in the OPT and within Israel itself. The steady growth of the Israeli settler population, and the establishment and legalization of new settlements, has only deepened the discriminatory segregation of the Jewish and Palestinian populations in East Jerusalem and the West Bank. The intensification of Israel’s comprehensive blockade of Gaza, with the occupying power maintaining almost complete control over who and what enters and leaves the Strip, has caused widespread civilian immiseration. This medieval siege of a substantial population is unique in the modern world. And the structure of discriminatory laws and practices imposed by Israel on its Palestinian citizens, which relegates them to a second-class citizenship, will only intensify as the impact of the 2018 Nation-State law is felt.