BACKGROUND TO THE ISRAELI/PALESTINE CONFLICT
It is well known that the situation in Palestine has been deteriorating for decades (especially within the West Bank, East Jerusalem, and Gaza). The amount of violence that Israel employs in sustaining their forced occupation is striking and unlike the likes of that seen since the WWI occupations of eastern Europe. Civil society and other organisations that report on the state of the Palestinian crisis have consistently reached the conclusion that force is being used arbitrarily and that non-Jewish citizens are denied their rights (para 5). This is not a new occurrence. However, the new question seems to be whether this state of occupation has transitioned towards being a crime of apartheid within international law. The state of Palestine’s occupation may serve as new ground of what constitutes apartheid within the 21st century, and the recent report of the UN Special Rapporteur on Human Rights in Palestine may offer valuable insight into how we should see the concept of race within the crime of apartheid.
In March 2022, the UN Special Rapporteur issued an advance report on the situation within the Palestinian territories with a specific emphasis on whether the forced occupation of Palestine can now be called apartheid under international law. To do so, the report makes specific creative arguments which build on existing research. What this article will focus on, given that it is particularly striking, is the report’s consolidation of a new test for apartheid, and its expansion of the question of race within the traditional view of what we usually think to be apartheid.
THE LAWS OF OCCUPATION APPLYING IN PALESTINE
The Palestinian territory has been occupied since 1967, and over the past five decades, Israel has created over 300 Jewish-only settlements (all of them illegal). The result of this is that there are now around five million stateless Palestinians living without access to rights and a state that has no viable path to self-determination, contrary to the promises made by the international community. By its nature, an occupation under international law is required to be temporary, meaning that Israel is prohibited from annexing even a millimetre of occupied territory, and given its status as an occupier, it must fully comply with international law on occupation, which includes the protection of those within the occupied territory. None of this has been realised by Israel in reality. This is made comprehensively clear within the special rapporteur’s report (para 15 and 16). Israel continues its occupation in sheer defiance of international law and its provisions which govern the safety and rights of those being occupied. By its insistence that the laws that protect our humanity do not apply to non-Jewish citizens, Israel’s occupation has broken through the realm of temporariness and extinguished any prospects of genuine self-determination for Palestine (para 15).
MOVING FROM OCCUPATION TO APARTHEID
With this in mind, the report asserts that a new legal question has arisen from this continuous illegal occupation: “does the current situation in Palestine fully reflect the nature of Occupation under International law?”. Arguably not. While the laws of occupation still fully apply within the occupied territories of Palestine, the report is right to claim that this is not enough to comprehensively understand the situation on the ground anymore (para 16). We need a new legal test that can capture the holistic picture, and possibly, this new test can be found within the laws that govern the crime of apartheid. Apartheid is governed within international law under the Convention Against Apartheid (the convention) and the Rome Statute (the statute). The crux of the issue is that neither these legal documents define “racial group” within the context of the crime of apartheid. Whilst the initial approach towards “racial group” within the convention seems to suggest that it is strongly influenced by the apartheid regime in South Africa, that focused on “black and white skin color”. The Israeli/ Palestinian situation does not reflect similar factual circumstances. Whilst it is possible to draw similarities from the fact that both African descendants within South Africa, and non-Jewish citizens within Palestine, are downgraded to second-class citizens through systematic initiatives in place which aim to implement discrimination-based laws. To conclude that the situation in Palestine comes under the crime of apartheid, it would require a broad interpretation of discrimination and apartheid, one where the question of “race” and “racial group” takes a wider, purposive view, rather than a narrower one. This is where the report provides a creative avenue for reconciling these differences.
A BROAD CONCEPTION OF “RACE” WITHIN INTERNATIONAL LAW
The UN special rapporteur takes a strikingly broad view of the question of “race” as used in the convention and the statute. The report claims that an evolution of the concept of apartheid is needed in order to better adapt to situations that have occurred within international law in recent decades (para 36). We need to look at “race” as a “social contract rather than a biological determination based on skin colour or assumptions regarding inherent racial differences” (para 36). The report provides compelling evidence for this legal shift in thought, citing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which precedes the Convention Against Apartheid and provides for a broad reading of “racial discrimination” within article 1. The architects of the ICERD understood that inequality and discrimination transcend racial lines. It includes ethnicity, descent, and national origin. A key takeaway from this is that any restriction based on these factors, that has the effect of nullifying or impairing the equal footing of human rights, goes against the ICERD. The wording of the ICERD is meant to be read broadly, encompassing situations where discrimination is not based on race alone, but where other structural mechanisms are in place to reduce the equal footing of a specific national or ethnic group.
This broad definition allows the report to apply these conceptualisations of discrimination specifically to the context of Israel’s actions towards the Palestinians living in occupied territory, given that Jewish Israelis and Palestinian Arabs can be understood to be distinct racial groups (para 37). This is because under the argument that social constructs are a matter of perception, we must look at discrimination through the eyes of the dominant group that distinguishes itself from other groups based on specific social markers that are culturally distinct. In our case, this would be the Israeli government denying fundamentally guaranteed rights towards those within the occupied Palestinian Territory under their determinant of who is a Jew and who is not a Jew (para 37). Arguably, this is the correct definition that international law should adopt moving forward. As international law needs to be applied on a global scale, it cannot be confined to a purportedly fixed definition of discrimination. Rather, it should reflect how different global circumstances can cultivate a state of discrimination over time within their treatment of respective groups based on perceptions of identity and their subsequent classification.
This broad definition of discrimination allowed the special rapporteur to apply an amalgamated test of apartheid (which combines characteristics from both the convention and the statute) towards the Israeli/ Palestinian situation (para 55). Firstly, the report draws on evidence that the differences in living conditions and citizenship rights between those who Israel perceives to be Jew or non-Jew, is deeply discriminatory and continuously maintained through systematic and institutionalised oppression. This would fit the criteria of an institutionalised regime of racial oppression and discrimination (para 42).
Secondly, the dominance of one racial group over another has been established. The report is correct to assert that the commitment of Israeli leaders in maintaining a state of endless occupation through the expropriation of Palestinian property and harsh methods of population control fit the criteria of alien rule with the intent to maintain domination of one group over another (para 50). And thirdly, the imposition of institutionalised discrimination is built up a regular practice of inhumane acts. The report cites the arbitrary and extra-judicial killings, the violent deaths of children, and denial of fundamental rights to support this conclusion (para 53).
HOW DO WE MOVE FORWARD FROM HERE?
This is apartheid. It has been confirmed by the UN special Rapporteur. It is not new in its assertion; many civil society organisations and international lawyers have come out with this bold claim in the past. But this recognition by the special rapporteur is important for two reasons. Firstly, it challenges the way we think about discrimination and the subsequent crime of apartheid under international law. The Israeli/ Palestine situation may not contain the features we are well accustomed to when thinking about apartheid in the traditional sense of how it was practised in South Africa, but nonetheless it allows us to broaden our horizons into what features new regimes can put in place that allow for the same discriminatory outcomes. Any regime that links the freedoms of one group intrinsically with the subjugation of another should not be tolerated under international law.
Secondly, it places a legal duty on the international community to follow suit in this recognition and provide the necessary measures to those suffering under this oppressive regime. As the report mentions; “Israel has imposed upon Palestine an apartheid reality in a post-apartheid world” (para 59). This, like many other instances of violations of international law we have seen, is unacceptable, and this report serves as a reminder of the international community’s duty to respond accordingly.
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.