“Calling Israel an apartheid state is a slander with no basis in law”

The word has a legal definition, and the definition is not about South Africa. Article II of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid applies the term to 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,” and lists among them “any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos… the expropriation of landed property belonging to a racial group or groups or to members thereof.” Article 7(2)(h) of the 1998 Rome Statute of the International Criminal Court gives the crime against humanity of apartheid a compact definition: “inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” Neither instrument requires a comparison with Pretoria; the analogy is a rhetorical convenience, not a legal element.

The first of the recent findings came from inside Israel. In January 2021 B’Tselem published A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid, whose conclusion reads: “A regime that uses laws, practices and organized violence to cement the supremacy of one group over another is an apartheid regime. Israeli apartheid, which promotes the supremacy of Jews over Palestinians, was not born in one day or of a single speech. It is a process that has gradually grown more institutionalized and explicit, with mechanisms introduced over time in law and practice to promote Jewish supremacy. These accumulated measures, their pervasiveness in legislation and political practice, and the public and judicial support they receive — all form the basis for our conclusion that the bar for labeling the Israeli regime as apartheid has been met.”

Human Rights Watch followed on 27 April 2021 with the 213-page report A Threshold Crossed, concluding that Israeli authorities are committing the crimes against humanity of apartheid and persecution, on the basis of “an overarching Israeli government policy to maintain the domination by Jewish Israelis over Palestinians and grave abuses committed against Palestinians living in the occupied territory, including East Jerusalem.” On 1 February 2022 Amnesty International published its own investigation, finding that Israel enforces a system of oppression and domination against Palestinians amounting to apartheid as defined in the Rome Statute and the Apartheid Convention; its Secretary General, Agnès Callamard, stated: “Whether they live in Gaza, East Jerusalem and the rest of the West Bank, or Israel itself, Palestinians are treated as an inferior racial group and systematically deprived of their rights.”

Then the question reached a court. In its advisory opinion of 19 July 2024 the International Court of Justice recited Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination — “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction” — and noted that the provision “refers to two particularly severe forms of racial discrimination: racial segregation and apartheid.” The Court found that the separation Israel maintains between settlers and Palestinians is “first and foremost physical,” and also “juridical,” since “settlers and Palestinians are subject to distinct legal systems in the Occupied Palestinian Territory.” Its conclusion at paragraph 229: “Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.”

What is genuinely contested should be stated as contested. The Court did not specify which of the two prohibited practices — segregation or apartheid — it considered established, and judges divided on that point in their separate opinions; Israel rejects the characterisation entirely and maintains that its measures are security responses to a hostile population. But an allegation examined and partly upheld by the principal judicial organ of the United Nations, and reached independently by the leading Israeli human rights organisation, is not a slander. It is a finding that has to be argued with on its own terms.

Sources

• Rome Statute of the International Criminal Court, Article 7 — United Nations, Office of Legal Affairs
• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), Article II — United Nations Treaty Series, vol. 1015, I-14861 (PDF)
• B’Tselem, This Is Apartheid, January 2021 (PDF)
• Human Rights Watch, A Threshold Crossed, 27 April 2021
• Amnesty International, “Israel’s apartheid against Palestinians: a cruel system of domination and a crime against humanity,” 1 February 2022
• International Court of Justice, advisory opinion of 19 July 2024, paragraphs 224–229 (PDF, UN Question of Palestine)