Evidence mounts

Savage cruelty: An Israeli artillery unit on guard near the border with the Gaza Strip on Dec 5, 2023, amid the continuing Israel war on Gaza.

IN September 2023, Tamir Pardo, who headed the Mossad, Israel’s national intelligence agency, under Prime Minister Benjamin Netanyahu from 2011 to 2016, said that Israel is imposing apartheid on the Palestinians.

In August 2023, the former northern commander of the Israeli army described the situation in the West Bank as one of “total apartheid.”

Before that, in June, former United Nations Secretary-General Ban Ki-moon and former UN Human Rights Commissioner Mary Robinson, wrapping up a trip to Israel/Palestine, highlighted the “ever growing evidence” they found that “the situation meets the international legal definition of apartheid” and highlighted that they “heard no detailed rebuttal of the evidence of apartheid.”

Palestinians have long used the term to describe the reality of their lives under Israeli rule. Developments in recent years and the intense Israeli bombardment in Gaza in the wake of Hamas’ attack on Israel on Oct 7 have brought this question into the mainstream.

Hence, around 15 of the 52 countries which spoke recently on the legality of Israel’s occupation of Palestinian territories at the International Court of Justice (ICJ) in The Hague had said that Israel is responsible for apartheid against the Palestinians.

This included South Africa, which called for the end of "Israel's apartheid" while stressing that the Zionist regime's occupation of Palestine is “inherently and fundamentally illegal”.

International law

Apartheid is a particularly severe form of institutional discrimination and systematic oppression based on race or ethnicity, and is prohibited by international law.

While apartheid was coined in relation to South Africa, international treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination, United Nation resolutions, and many countries’ domestic laws define it as a universal legal term that applies globally.

Apartheid is also a crime against humanity, as set out both in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and the 1998 Rome Statute of the International Criminal Court. It consists of three primary elements:

1. An intent to maintain domination by one racial group over another;

2. A context of systematic oppression by the dominant group over the marginalised group;

3. Inhumane acts such as “forcible transfer” and “expropriation of landed property.”

Under international law, race and racial discrimination have been interpreted to mean more than skin color or genetic traits. They refer also to distinctions based on descent and national or ethnic origin, to be evaluated on the basis of the particular context and construction by local actors.

In April 2021, after years of research, detailed case studies and a careful review of Israeli government planning documents, statements by officials and other sources, Human Rights Watch found that Israeli authorities were and are committing the crime of apartheid against Palestinians, based on the Israeli government policy to maintain domination over Palestinians and grave abuses against Palestinians in the occupied territory.

We found that across Israel and the occupied territory – the West Bank, including East Jerusalem, and Gaza – Israeli authorities have sought to maximise the land available for Jewish communities and minimise the number of Palestinians on that land by concentrating most Palestinians in dense population centers. In Jerusalem, for example, the government plan for the municipality explicitly refers to “maintaining a solid Jewish majority in the city” and even specifies its target demographic ratio across West and occupied East Jerusalem.

Unequal status

The Netanyahu government that came to power a year ago identified as a guiding principle: “The Jewish people have an exclusive and indisputable right to all areas of the Land of Israel,” which the prime minister defined to include the West Bank.

Israeli authorities have also adopted policies to mitigate what they have openly described as a “demographic threat.”

For more than two decades, they have barred, with few exceptions, granting long-term legal status inside Israel to Palestinians from the West Bank and Gaza who marry Israeli citizens or residents, while conferring such status to spouses from virtually every other country.

Under Israeli law, a Jewish citizen of any other country who has never been to Israel can move there and automatically gain citizenship, while Palestinians expelled from their homes in what became Israel and living for more than 75 years in refugee camps in Gaza (the majority of Gaza’s population are refugees) or a nearby country cannot.

We also found that Israeli authorities maintain a two-tiered legal system: methodically privileging Israelis, who have the same rights and privileges wherever they live, while repressing Palestinians to varying degrees wherever they live.

As Hagai El-Ad, the former director of the Israeli human rights group B’Tselem, wrote, “There is not a single square inch in the territory Israel controls where a Palestinian and a Jew are equal.”

The oppression is most severe in the occupied territory. In the West Bank, Israel imposes harsh military rule on Palestinians while affording Jewish Israelis living in a segregated manner in the same territory their full rights under Israeli civil law.

While many systematic abuses come together to collectively amount to apartheid, the Human Rights Watch report focused primarily on five: sweeping restrictions on movement in the form of the Gaza closure and a permit regime in the West Bank; confiscation of more than a third of the land in the West Bank; harsh conditions in parts of the West Bank that have forced thousands of Palestinians out of their homes, which amounts to forcible transfer; denial of residency rights to hundreds of thousands of Palestinians and their relatives; and the suspension of basic civil rights for millions of Palestinians living under military rule.

For more than 16 years, Israeli authorities have imposed a generalized ban on travel outside of Gaza for the more than 2.2 million people living there, with few exceptions, denying them freedom of movement.

They have instituted a “policy of separation” between the West Bank and Gaza, regularly blocking the movement of Palestinians between the two parts of the occupied territory.

They have also imposed sweeping restrictions on the entry and exit of goods, which has devastated the economy in Gaza.

While Israeli authorities continue to expand settlements in the West Bank, which violates international law, the authorities demolish hundreds of Palestinian homes and other structures every year for lacking building permits, which authorities make nearly impossible for Palestinians to obtain.

Between 2016 and 2018, Israeli authorities issued 100 times more demolition orders than building permits for Palestinians living in the West Bank under Israel’s control.

Palestinians in the West Bank hold different-coloured identity cards and passports than Jewish Israeli settlers, which carry with them different baskets of rights and privileges. Israeli settlers, for example, can freely move between the West Bank and Israel, while Palestinians require difficult-to-obtain permits to enter large parts of the West Bank, East Jerusalem and Israel. The more than 645 checkpoints and other permanent obstacles Palestinians face can turn a short commute to school or work into an hours-long journey.

Crimes against humanity

Many of the abuses, such as denying building permits and demolishing homes that lack them, have no security justification. Others, such as the blanket denial of long-term legal status to Palestinians from the occupied territory married to Israeli citizens and residents, use security as a pretext to further demographic goals.

Even when security forms part of the motivation, it does not justify apartheid and racial and ethnic persecution, just as torture or other unlawful actions cannot be justified in the name of security. At the same time, of course, apartheid and other abuses by Israeli authorities can never justify war crimes and other violations by armed Palestinian groups, including the killings and taking of hostages during the Oct 7 attacks.

Our findings that Israel’s oppression of Palestinians amounts to apartheid are consistent with where we found this crime against humanity in other contexts, including in Myanmar, where we found apartheid against the Rohingya.

Those responsible for such crimes should be held to account, and foreign governments and businesses should end complicity in these grave abuses.

There can be no way to address or resolve the continuing crisis in Israel and Palestine, even after the current hostilities wane, without diagnosing it correctly.

The discourse about the way forward needs to be based on the reality on the ground of decades of Israeli repressive rule of Palestinians. Major Israeli, Palestinian and other international human rights groups have found that Israeli authorities are committing apartheid against Palestinians, as has the UN special rapporteur for the occupied Palestinian territory and many others.

Denying millions of Palestinians their fundamental rights, solely because they are Palestinian, is a violation of international law, and that reality is becoming more and more clear to much of the international community. — LAT/TNS

Lama Fakih is the Middle East and North Africa director at Human Rights Watch. Omar Shakir is the Israel and Palestine director at Human Rights Watch.

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