July 1 passed without an annexation, as have the following days. Maybe we’re witnessing the evaporation of the right’s most audacious policy for the Israeli-Palestinian conflict, a policy that Israel’s biggest supporters have warned will turn it into an apartheid state. Does the removal of annexation from the agenda also remove the danger of apartheid?
Unfortunately, the answer is no. In recent months, I have studied the issue in depth and, in a legal opinion I authored for the Yesh Din rights group, I came to a disheartening conclusion on this term’s relevancy for describing the type of control wielded by Israel in the West Bank. Yes, even without annexation.
The word “apartheid” is used in various ways in different contexts; the meaning of the term in the public arena isn’t identical to its meaning in political science, history and law.
In the legal sphere, “apartheid” is a term for a type of regime and an international crime. Once an ideology of a regime in a specific time and place in the 20th century, apartheid is now a term for an international crime constituting a crime against humanity. The crime of apartheid is defined in two international conventions; one is the Rome Statute, which codifies the activities of the International Criminal Court in The Hague.
Though apartheid’s origin is historically linked to the racist regime in South Africa, it is now an independent legal concept with a life of its own that can exist without being founded on racist ideology. The crime of apartheid is defined as “inhumane acts ... 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.”
In other words, apartheid is a regime that, using all the tools at its disposal – law, policy, practice – creates the superiority of one group and imposes inferiority on another, usually manifested in institutional discrimination regarding rights and resources. Contrary to popular belief, in international law, a racial group is defined in accordance with sociopolitical classifications, not biological-genetic ones, thus the definition encompasses national or ethnic origin. It’s not enough to impose inferiority on such a group; a condition for committing the crime is that the superiority is not temporary but meant to be permanent.
Hence, international law criminalizes “inhumane acts” committed against the inferior group with the aim of preserving the superior group’s control over it. You’d have to turn out the lights, plug your ears and close the shutters to evade the conclusion that the Israeli regime in the West Bank is an apartheid regime and that annexation would only deepen and expand it.
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For the past 53 years, Israel has held the West Bank in a military occupation. Every occupation, including Israel’s, is by nature a system of forcibly controlling people whose civil rights are suspended, who are not eligible to vote, be elected and be represented in the institutions where their future is determined.
But Israel chose to colonize the territory with its citizens; over five and a half decades, hundreds of thousands of them have settled there. Thus arose a situation in which two groups live under the same regime, one with rights and privileges, political power and representation, and one with no political presence whatsoever in the institutions that govern it.
The result is exactly what the prohibition against building settlements was meant to prevent: directing all the territory’s resources to the occupying group at the expense of the occupied community. Thus, over the years, 99.76 percent of public lands allocated by Israel’s Civil Administration in the West Bank have served Israeli purposes, with less than a quarter of 1 percent allocated for Palestinian use. This shocking statistic is all the more distressing when you consider that, at the same time, Israel dispossessed Palestinian communities of more than a million dunams (247,000 acres) of land that were in use by them and slated for their development.
Since 1967, 130 settlements (and about another 100 outposts) have been built in the West Bank, and aside from a neighborhood for Bedouin who were forcibly evicted from the Mishor Adumim area, and the city of Rawabi, which Israel allowed the Palestinian Authority to build, no new localities have been established for Palestinians. Palestinian communities in sparsely populated areas that Israel set its sights on became a target for a policy of uprooting, carried out by a failure to grant construction permits and by frequent demolitions (mainly in the South Hebron Hills, the Jordan Valley and the Jerusalem area).
Israelis enjoy generous water allocations, franchises to quarry natural resources and access to natural springs, archaeological sites and nature reserves. Along with all this, Israel created a dual system of law in which one law applies to a Palestinian and another to an Israeli. The Israelis enjoy the benefits and protections of much of modern Israeli law, while Palestinians struggle under the weight of oppressive military injunctions.
Many inhumane acts
Thus, Palestinians do not have the right to demonstrate, but settlers do. Thus, an Israeli who gets in trouble with the law will be tried in a civil court where their right to due process is guaranteed, while their Palestinian neighbor accused of the same crime will be tried in a military court, where the proceedings are not even conducted in their language. Thus an Israeli is free to travel abroad, while a Palestinian needs a permit from the army.
Every policy of dispossession, every practice of (physical and legal) separation, every prevention of development and every forced transfer of Palestinians constitutes “inhumane acts” as seen in the definition of the crime of apartheid. All are intended to permanently establish the regime of control over and oppression of the Palestinians and have nothing to do with security – the basic Israeli excuse for every violation of Palestinian rights.
As a whole, Israel’s actions in the West Bank since 1967 provide solid evidence of the intention to perpetuate Israeli control over the territory, and thus over the people in it. If this had to be proved in court, it would be considered an easy case.
And if Israel’s deeds weren’t enough, they have been joined by words in recent years. The official policy of striving for annexation, which came out of the closet after Donald Trump moved into the White House, shatters the alibi that until 2015 was brandished by Israel’s governments to refute the accusation of apartheid: We have no intention or desire to rule over the Palestinians; the situation is temporary.
This has always been the claim – that as soon as there is a partner, we will negotiate, we will reach an agreement, and we will bid the Palestinians farewell. Right? Wrong. Once Israel began officially striving for annexation – that is, for perpetuating its rule by force – it lost this meager alibi, which could hardly cover for all its actions in any case.
Apartheid was made a crime so as to defend the heart of human morality as defined after World War II: the notion of our common humanity. A regime that denies and subverts this idea is an illegitimate regime that must be brought to an end.
Not all of us Israelis are guilty of the crime of apartheid, but we are all responsible for it, and it is our duty to stop the crime being committed in our name – for our sake, for the sake of future generations, and for the sake of a future based on the fundamental Jewish idea that every human being is created in God’s image.
Michael Sfard, a human rights lawyer, is the legal adviser to the rights group Yesh Din.