03 April 2024

Apartheid in the Occupied Palestinian Territory?

A call for a more nuanced approach

The apartheid claim made against Israel because of its policy in the Occupied Palestinian Territory (OPT) – most recently in the ongoing advisory proceedings before the International Court of Justice (ICJ) – cannot be settled with the counter-claim of antisemitism, but calls for an objective, thorough and fact-based legal inquiry. Only such an approach with regard to this and other allegations against Israeli policy will strengthen Israel, understood as a liberal and democratic Rechtsstaat, which guarantees, in line with its 1948 Declaration of Independence, “complete equality” to “all its inhabitants”. At the same time, recent developments have once again made clear that a solution to the Palestine question in line with international law is simply existential for the future safe existence of the State of Israel.

Apartheid claim reloaded

In the most recent hearings in the ICJ advisory proceedings on the “Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”, 20 (out of a total of 50 intervening) States as well as three international organizations have invoked the apartheid claim (s. here p. 80 with references in fn. 100), including the apartheid victims South Africa (here, pp. 18-9) and Namibia (here, pp. 14 ff.) as well as the African Union representing 55 African States (here, p. 47). Even if there are no European or “Western” states among these States, it is noteworthy that respected European international lawyers have advocated the apartheid claim on behalf of those States (such as English Professor Philippa Webb for Belize [here, pp. 15-6] and Sir Michael Wood for Jordan [here, p. 63] and – en passant – German Professor Andreas Zimmermann and French Professor Alan Pellet, both for Palestine [see here p. 57 and here p. 97 and passim]). The apartheid claim has, in the meantime, also found its way into the investigation into possible crimes in the “situation of Palestine” before the International Criminal Court (ICC) through a collective referral by five ICC State parties (pursuant to Art. 13(a), 14 ICC Statute), led by South Africa (and supported by Bangladesh, Bolivia and Djibouti and Comoros).

It should be recalled, however, that this claim is much older than the recent debate, triggered by the 2021 reports of Human Rights Watch, Amnesty International and the Israeli NGO B’Tselem, seems to suggest. First claims of this kind can already be found in the publications of some Palestinian intellectuals in the 1960s (see Waxman). In the 1970s, racism and Zionism were given equal status in Resolutions of the UN General Assembly (see e.g. Res. 3151 G (XXVIII) of December 14, 1973). The apartheid claim was then made explicitly for the first time at the World Conference against Racism in 2001 in Durban, South Africa. A draft final declaration mentioned apartheid in relation to “the ethnic cleansing of the Arab population in historic Palestine” and described “foreign occupation based on settlements” as “a new kind of apartheid”. Yet, this reference disappeared in the final version of the declaration.

Unbiased and nuanced analysis

In any case, the apartheid claim has now again taken center stage in the international legal discourse with the recent ICJ hearings. Yet, this time, the target is Israel and the former apartheid victims South Africa and Namibia are among its main adversaries. At the same time, the apartheid legacy of these two countries provides relevant legal precedent with four ICJ advisory opinions (1950, 1955, 1956, 1971) and a contentious case (Ethiopia v. South Africa, 1960-1966), all concerning the former South West Africa, now Namibia, back then controlled by (apartheid) South Africa as mandatory power.

In legal terms, apartheid essentially describes a specific wrong that encompasses systemic and structural forms of discrimination destroying equality and freedom, within the framework of an institutionalized system of oppression. The modern concept of the international crime of apartheid, building on the definition of Art. II of the 1973 Apartheid Convention but emancipated from its South African precedent, can be found in Article 7 (2)(h) of the ICC Statute (as a crime against humanity) and is defined there by means of three (cumulative) elements: (i) “inhumane acts” “similar” to those mentioned in Article 7 (1) ICC Statute, i.e., ranging from deprivation of liberty to killings; (ii) existence of an “institutionalized regime of systematic oppression and domination of one racial group by another racial group or groups” and (iii) the (specific) “intent of maintaining” that regime.

As outrageous as the apartheid claim may appear from the point of view of the Israeli government, it is in Israel’s own best interest to take it seriously. If it were successful, Israel would face – besides genocide1) and war crimes (based on violations of the law of armed conflict, ius in bello) – another charge of an international wrongful act and an international crime with similar restraining consequences for third States supporting Israel militarily (see generally here; less restrictively here; on Nicaragua v. Germany see here, here and here). Indeed, apart from domestic legislation prohibiting arms exports in the face of the commission of international crimes (on German law, see here, at 182 ff.; on Dutch law and the recent Hague Appeals Court decision, see here, here, here), the UN Arms Trade Treaty (ATT) – albeit often disregarded by major military powers – would equally apply in an apartheid context given the latter’s characterization as a crime against humanity. Accordingly, a State must not supply arms to a conflict party if this party uses them to commit international crimes (including apartheid as a crime against humanity) and the supplying State “has knowledge” of this use “at the time of authorization” of the arms supply (Article 6(3) ATT).  In terms of the law of State responsibility (Article 16 ILC Draft), the supplying State would be complicit “in the commission of an international wrongful act” (i.e. apartheid) if it has the respective knowledge of the commission of this act (for a previous debate on German complicity in war crimes in Yemen by supplying weapons to Saudi Arabia see e.g. here and here). In addition, anti-apartheid monitoring mechanisms could be reactivated, especially the Apartheid Convention’s “Group of Three”.

However, can we really speak of apartheid in legal terms with a view to Israeli policies and practices in the OPT, especially the West Bank?2) If one undertakes a thorough and careful analysis, applying the above-mentioned three elements of the apartheid crime to the factual situation in the OPT, the answer to this question turns out to be more complex than the hearings before the ICJ and the widespread (international law) discourse suggest. In fact, only one of the intervening States (namely Belize, pp. 15-6) undertook something close of a legal analysis, but apart from too brief and somewhat superficial, it mixed up the specific genocidal with the apartheid intent and ignored the tricky issue of the applicable standard of proof. In a nutshell, the main take-aways from a more thorough analysis may be summarized as follows (for a detailed treatment, see Ambos, Apartheid in Palestine? 2024, pp. 87 ff. and 47 Fordham Int’l L.J., forthcoming 2024):

The existence of the first element of the apartheid crime is largely undisputed because Israeli occupation policy entails “inhumane acts”, e.g. unlawful killings, arbitrary arrests and violations of physical integrity, including torture, and these acts – increasingly occurring in the form of settler violence (for a recent German radio report see here) – are attributable to the State of Israel. The second element raises, however, significant problems of interpretation. While the existence of an “institutionalized regime of systematic oppression and domination” in the OPT is largely uncontroversial (see e.g. for a good overview of the discriminatory legislation here), the oppression / domination of the local Palestinian population by Israel as the occupying power and by Jewish settlers cannot easily be understood as the oppression of one racial group (Palestinians) by another racial group (Israeli Jews). While Israeli discriminatory policies and practices in the OPT have been qualified as “racial discrimination” within the meaning of Article 1 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) by the respective Committee (here, para. 24 and here, para. 22-3), the requirement of a racial group oppression is arguably narrower since it presupposes that the respective populations are to be understood as “racial groups”, i.e., there must be more than just discrimination of one group by the other (note that Article 7(2)(h) ICC Statute does not even contain the word ‘discrimination’). Also, the “racial group” element seems to imply that the Israeli-Palestinian conflict is to be perceived in (purely) racial terms, but what if it is read primarily as a national conflict between Israeli citizens and Palestinian non-citizens (see e.g. here)? While the full controversy cannot be recounted here, ultimately, the existence of a national conflict does not exclude a parallel discrimination with racial ingredients (convincingly here, 851-2), i.e., where the oppressed group is considered as inferior to the dominant group. Such racialised or race-based oppression may ultimately amount to a racial group oppression within the meaning of the apartheid crime. Finally, the third element of the specific apartheid intent is very difficult to prove, especially if one uses the very high evidentiary threshold of the “only reasonable inference” (for a discussion, see here) required by both the ICJ (here, para. 148) and the International Criminal Tribunal for the Former Yugoslavia (here, para. 10, 2598 ff., 5669, 5781, 5830) with regard to the crime of genocide.

Anti-Semitism versus Fact-Based Legal Criticism of Israeli Policy

Whatever the result of an impartial examination of the apartheid claim – or, for that matter, the genocide claim brought against Israel by South Africa regarding the ongoing Gaza war –, it cannot be settled with a counter-claim of antisemitism. As recently demonstrated, once again, in the context of an interdisciplinary research project, antisemitism is an extremely diverse and complex phenomenon that can hardly be captured by one comprehensive and convincing definition. This explains why three definitions of antisemitism – the one of the International Holocaust Remembrance Alliance (IHRA, 2016) and, in response, those of the so-called Jerusalem Declaration and the Nexus Document (both 2021) – are fighting for recognition, with none of these definitions claiming to be legally or otherwise binding, but only to serve as a basis for a more informed and rational discussion. In particular, the broad and vague IHRA definition, which was accepted as the only binding definition by the German Federal Government already