The Time Has Come to Admit: Israel Is an Apartheid Regime

Yehudit Karp
Yehudit Karp
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A boy looks at Israeli soldiers during a protest in support of Palestinian farmers and against Israeli settlements, in Beita, West Bank, today.
Yehudit Karp
Yehudit Karp

A good Jew doesn’t pronounce God’s sacred name, the tetragrammaton, out of fear and awe. And similarly, there is a word that due to a taboo, a good Zionist refrains from uttering. They believe that Israel is a democratic country with moral legitimacy to defend itself, and that security needs are a kosher correcting fluid that whites out any injustice.

The average reader is horrified and stops reading when they encounter this word if it is referring to Israel, and believes that its attribution expresses a lie, heresy and antisemitism, and that whoever uses it is a radical leftist, an Israel-basher who hates their people and their country. The average writer, it should be admitted, also refrains from mentioning the specific word for fear that he will lose the last of his readers. And those petitioning the High Court of Justice prefer caution, arguing that wrongful discrimination exists, and for their own reasons choose not to call the facts by their hard-to-pronounce name.

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This name was given by the international community in two international conventions, to a situation that is defined as a crime, in which in order to maintain control by a group of people of one ethnic/national origin over another ethnic/national group, the government maintains a dual system of laws in a single geographic area.

In such a system the human rights of the citizens of the reigning country are preserved, and an institutionalized regime is maintained, which includes inhumane treatment and systemic oppression of the other ethnic/national group, in a manner that undermines the basic human rights of its members. The international community called this situation “apartheid.”

And this is a story about a petition submitted to the High Court of Justice by six Palestinians who are residents of the area controlled by Israel, together with Yesh Din – Volunteers for Human Rights, and Physicians for Human Rights, against an order regarding security directives, which according to the petition allows for entering and searching Palestinian homes without a judicial order or any external monitoring, and without clear limitations, thereby leaving an opening for arbitrary use of authority.

The petition was based on long-term documentation of entry and search methods used by the Israel Defense Forces, and of the serious collateral damage to human dignity, to people’s bodies and property, the right to privacy, individual freedom, the individual’s sense of security and as a result, to the emotional health of adults and children who are present during the search, due to shock, humiliation and fear. This damage is part and parcel of the methods of searching, which is regularly done late at night by armed soldiers who wake up the entire family and threaten them.

The petitioners complained about the illegality of the order from the point of view of international and Israeli law, and the illegal discrimination that undermines basic rights, from which the population of the Palestinian area suffers compared to the Jewish residents. The High Court rejected the petition, with the explanation that this is not discrimination among equals, but rather a permitted distinction between populations that differ for reasons of state security, and because it believes that the basic rights of the Palestinians are preserved insofar as possible in the context of security needs.

I have no intention here of arguing with the court’s reasons, although I am shocked by the harsh implications of the decision on the lives of human beings who have the misfortune of being Palestinians living in the territories, who are under occupation. But I do intend in this article to illuminate two statements the court made on its way to rejecting the petition.

And these are the words of Justice Yael Wilner: “… I didn’t see fit to accept the petitioners’ claim regarding the disparity between the authority to search Palestinian homes in the region and the authority relating to a search based on criminal law, in the homes of Israelis living in Israel and in the region, which they claim constitutes prohibited discrimination … One of the reasons for the above-mentioned disparities is the overall difference between the criminal law systems applying to those under prosecution in Israel, and to those under prosecution in the region, and this difference exceeds the bounds of the above-mentioned petition.”

And Justice Uzi Vogelman added: “Referring to the implications of the disparity between the authority to search the homes of Palestinian residents of the region and the authority to search the homes of Israeli citizens living in the region, we will note that as a rule the judicial regime applying to the latter differs from that applying to a resident of the region.

“Regarding Israeli citizens, there is a separate stratum of legislation that includes internal Israeli legislation that was applied individually and in an exterritorial manner … In light of the above-mentioned difference as a rule, and the difference between the criminal law systems that apply to those being prosecuted in Israel and those prosecuted in the region in particular, there is nothing in the existence of a different law applying to an Israeli citizen, even in the context of the search laws, that affects the legality of the law applying to a resident of the region.”

Therefore, in practice the High Court of Justice in Israel provided a legal seal of approval for the existence of two separate legal systems in the same geographic area under a single government. One is privileged for the Jewish citizens of the ruling authority who live in the region (as opposed to international law), and whose human rights are protected, and the other – discriminatory, oppressive and Draconian – for those being ruled, residents of the region, who are identified based on a different national or ethnic affiliation.

The discriminatory disparity exists not only in the area of criminal law; it applies to all the aspects of the lives of the Palestinians living in the occupied territories, whose basic and natural human rights are denied by the occupying power in the name of the security of the State of Israel. And as could be understood from the words of Justice Vogelman – if there is discrimination in one judicial sphere due to different laws that apply in the same territory to two distinct populations – there is nothing to prevent discrimination in other spheres as well.

However, this discrimination, whose existence is admitted by the court, is forbidden according to humanitarian international law, which includes the laws of occupation. And therefore it cannot be classified as the legal authority of an occupier under the laws of occupation, which may have been applied, perhaps, in a disproportionate way.

That is the elephant that is in the room under the aegis of the High Court. And with the granting of a specific seal of approval by the Israeli court, the time has come to call a spade a spade: An apartheid regime is the name given in international law by the international community to a regime of the type that Israel is maintaining in the occupied territories.

Yehudit Karp is a former deputy attorney general, and is a member of the public council of the New Israel Fund and of Yesh Din, and Friends of Breaking the Silence.

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