RAJIV GANDHI NATIONAL

UNIVERSITY OF LAW, PUNJAB

INTERNATIONAL CRIMINAL LAW

PROJECT

TOPIC: APARTHEID IN
ISRAEL- CASE STUDY

SUBMITTED TO:
SUBMITTED BY:
DR. SANGEETA TAAK
HEMAKSHI
ASSISTANT PROFESSOR
ROLL NO- 15055
OF LAW
GROUP NO- 10
RGNUL
4TH YEAR

RGNUL

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 TABLE OF CONTENTS
S.NO CONTENTS PAGE
NO.
1. INTRODUCTION 3-4
2. APARTHEID AS A CRIME 5-7
3. APARTHEID IN ISRAEL: CASE 8-15
STUDY
4. CONCLUSION 16-17
5. REFERENCES 18

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 INTRODUCTION

The prohibition of apartheid in international human rights law draws primarily from two areas:

(1) Prohibitions of discrimination on the basis of race; and

(2) Rejection of the racist regime that governed in the Republic of South Africa between 1948
and 1992.

The prohibition of racial discrimination traces to the earliest principles of the United Nations.
Foundational statements include Article 55 of the United Nations Charter and article 2 of the
Universal Declaration of Human Rights (1948). Later instruments, particularly the International
Convention on the Elimination of All Forms of Racial Discrimination, spelled out the prohibition
in greater detail. Thus Member States of the United Nations are obligated to abide by the
prohibition of apartheid whether or not they are parties to the Apartheid Convention.

The juridical history of international rejection of apartheid in South Africa dates to the early years
of the existence of the United Nations. General Assembly resolution 395(V) of 1950 was the first
to make explicit reference to apartheid in southern Africa, which it defined as a form of racial
discrimination. Resolution 1761(XVII) of 1962 established what came to be called the Special
Committee against Apartheid. In the preamble to the 1965 International Convention on the
Elimination of All Forms of Racial Discrimination, alarm is expressed about “manifestations of
racial discrimination still in evidence in some areas of the world… such as policies of apartheid,
segregation or separation” (emphasis added). In article 3, signatories to the Convention
“particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and
eradicate all practices of this nature in territories under their jurisdiction” (emphasis added).

The Apartheid Convention of 1973 classifies apartheid as a crime against humanity (in articles I
and II) and provides the most detailed definition of it in international law.9 It also clarifies
international responsibility and obligations with regard to combating the crime of apartheid. In
the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (hereinafter Additional Protocol I to the
1949 Geneva Conventions), apartheid is defined as a war crime. The 1998 Rome Statute of the
International Criminal Court (ICC), hereinafter the Rome Statute, lists apartheid as a crime against
humanity (article 7 (1) (j)), bringing its investigation and possible prosecution under the
jurisdiction of the ICC.

Although only 109 States are parties to the Apartheid Convention, most States (currently 177) are
parties to the International Convention on the Elimination of All Forms of Racial Discrimination,
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under which they commit themselves to “prevent, prohibit and eradicate” apartheid (article 3). As
of 31 January 2017, 124 States had ratified the Rome Statute. Hence, most States have a legal
responsibility to oppose apartheid and take measures to end it wherever it may arise. That
responsibility concerns not only human rights violations resulting from apartheid but the threat it
poses to international peace and security. The Apartheid Convention further provides that States
parties should act at the national level to suppress and prevent the crime of apartheid, through
legislative action and prosecutions and legal proceedings in any competent national court.

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 APARTHEID AS A CRIME

 CRIME OF APARTHEID PRIOR TO ROME STATUTE

Although the term apartheid is usually used to describe the South African policy of racial
classification and segregation between 1948 and 1994 (the apartheid era), the practice of racial
discrimination in South Africa pre-dates the coming to power of the Nationalist Party in 1948.
The first United Nations General Assembly (UNGA) resolution expressing concern regarding
racial discrimination in South Africa was passed in December 1946. What distinguishes the
apartheid era is the systematic manner in which the Nationalist Party formalized their policies of
racial discrimination through legislation and the brutality of the enforcement mechanisms
established to implement them.

The first condemnation of apartheid in an internationally binding legal instrument can be found
in the 1966 International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD). Article 3 of ICERD requires state parties to ‘condemn racial segregation and apartheid
and undertake to prevent, prohibit and eradicate all practices of this nature in territories under
their jurisdiction’. Contrary to some assertions, Article 3 of ICERD does not oblige states party
to the Convention to recognize apartheid as a crime against humanity nor does it attempt to assert
extra-territorial jurisdiction. The first attempt to criminalize apartheid in a legally binding
international instrument was made two years later, during the drafting of the 1968 Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (the
1968 Convention).

 THE 1968 CONVENTION ON THE NON-APPLICABILITY OF STATUTORY

LIMITATIONS TO WAR CRIMES AND CRIMES AGAINST HUMANITY

On 26 November 1968, the UNGA adopted a draft convention on the NonApplicability of

Statutory Limitations to War Crimes and Crimes Against Humanity (the 1968 Convention). 20
Article 1(b) of this Convention provides (inter alia) that no statutory limitation will apply to
‘inhuman acts resulting from the policy of apartheid … even if such acts do not constitute a
violation of the domestic laws of the country in which they were committed’. The UNGA
resolution adopting the draft 1968 Convention was approved by 58 votes in favour, seven against
and 36 abstentions. As Miller notes, ‘[m]ore opposing votes were cast against the adoption of this
convention than voted in opposition to any prior international human rights instrument.

The 1968 Convention is an important milestone on the road to recognizing that crimes against
humanity can be committed outside the context of an international armed conflict, but it cannot

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— by itself — be regarded as recognizing the existence of apartheid as an international crime
against humanity for two reasons. First, the voting record demonstrates a clear lack of consensus
on the issue and, secondly, it is doubtful that a convention whose sole purpose is to require states
not to apply a rule of statutory limitation to a disputed categorization of crimes against humanity
can ipso facto create a crime against humanity i.e. a convention providing for purely procedural
matters cannot be used as a bootstrapping device to create a substantive offence.

 APARTHEID CONVENTION

Article I(1) of the Apartheid Convention provides that:

“The States Parties to the present Convention declare that apartheid is a crime against humanity
and that inhuman acts resulting from the policies and practices of apartheid and similar policies
and practices of racial segregation and discrimination, as defined in article II of the Convention,
are crimes violating the principles of international law.”

Article II of the Apartheid Convention also states that the enumerated inhuman acts constituting
the material elements of the crime of apartheid must be 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’. It does not appear that the precise ambit of the mens rea of
the crime of apartheid was ever addressed during the drafting of the Apartheid Convention. Clark
denies that Article II requires evidence of specific intent on the grounds that ‘the principle of strict
construction is arguably not a generally accepted mode of treaty analysis’ but Dugard challenges
this view on grounds that strict interpretation in favour of the accused is a general principle of
criminal law.

The Apartheid Convention was adopted by the UNGA on 30 November 1973. Although there are
currently 108 parties to the Apartheid Convention, the customary status of the convention has
been challenged on the grounds that ‘[i]n view of the refusal of most Western states to ratify the
convention, its provisions should be considered to be legally binding only on the states parties.’
It is tempting to dismiss the reference to ‘Western states’ as Euro-centric but, as Tomuschat notes,
‘[t]he fact that the West has consistently rejected the Apartheid Convention proves that a universal
opinio iuris is missing.’ As Bassiouni acknowledges, there are two essential and endemic
problems with the Apartheid Convention. First, it appears intended to apply to southern Africa
only, and, secondly, its definition of what constitutes the prohibited practices in Article II ‘is too
broad and imprecise with regard to the requirements of penal legality and specificity.’

 INCLUSION OF CRIME OF APARTHEID IN ROME STATUTE

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The crime of apartheid was not included in the statute of the International Criminal Tribunal for
the former Yugoslavia (ICTY) (or of the International Criminal Tribunal for Rwanda (ICTR))
despite a request for it to be included from the ICRC. The crime of apartheid was also missing
from the list of crimes against humanity in the Draft Statute of the International Criminal Court
produced by the Preparatory Committee on the Establishment of an International Criminal Court
although the core concept undoubtedly falls within the concept of persecution on ‘political, racial,
national, ethnic, cultural or religious’ grounds that was included in subparagraph (h) of proposed
article Y (defining crimes against humanity). By contrast, apartheid was initially included in the
possible options for the proposed definition of war crimes as an example of an outrage upon
personal dignity.

Article 7(1)(j) of the Rome Statute states that ‘the crime of apartheid’ is a crime against humanity
when committed ‘as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack’. Article 7(2)(h) of the Rome Statute stipulates that for
the purpose of paragraph 1:

“The crime of apartheid’ means 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.”

Given that Article 7(1)(h) criminalizes persecution against any identifiable group or collectivity
on (inter alia) racial or ethnic grounds, the crime of apartheid in the Rome Statute would appear
to be limited to a residual category of inhuman acts not falling within the ambit of the concept of
persecution79 or ‘other inhuman acts of a similar character intentionally causing great suffering,
or serious injury to body or to mental or physical health’80 but requiring, in addition, the context
of ‘of an institutionalized regime of systematic oppression and domination’ and the specific intent
to maintain that regime. This residual category would appear to be either (i) any inhuman acts that
did not cause great suffering, or serious injury to body or to mental or physical health or (ii) acts
that did not constitute ‘the intentional and severe deprivation of fundamental rights contrary to
international law’. As Dugard has noted in relation to the Apartheid Convention, proving the
necessary specific intention will be difficult to establish in practice against all but the political
leaders responsible for the design and implementation of the ideology of apartheid.

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 APARTHEID IN ISRAEL: CASE STUDY

 INTRODUCTION

The term "apartheid" evokes South Africa, but systematic racial discrimination is not unique to
that nation. It has been evident several other nations also. Some aboriginal peoples claim they are
victims. Religious-based states may violate the rights of racial groups that do not adhere to the
religion. As Eastern Europe changes its political face, racial animosities are surfacing that may
yield systematic oppression of minorities.

The apartheid claim has been levelled in Israel, whose treatment of its minority population of
Arabs has been the subject of controversy. The United Nations General Assembly called Zionism,
the national ideology of Israel, "a form of racism and racial discrimination," a charge prompted
primarily by Israel's treatment of the Arabs within its borders. British historian Arnold Toynbee
called Israel "a racialist state. . ." and said that "it is wrong that people feel differently about the
rights and wrongs of the existence of the state of Israel versus white South Africa ....”1

Israel itself has strenuously denied that its policy towards the Arabs in its borders is one of
apartheid. When Iraq levelled the charge at the United Nations in 1961, Israel's representative
replied, "[t]o say the Jews deny ordinary rights is one of the most astonishing statements heard in
the history of the United Nations.”2

 DISPLACED PALESTINE ARABS: VICTIMS OF DISCRIMINATION

In 1948 the state of Israel was established in a portion of the territory formerly called Palestine.
The new state included what had been Palestine, less the Gaza Strip and the West Bank of the
Jordan River. The population was predominantly Arab, but during the hostilities that surrounded
the establishment of Israel in 1948, most of them were displaced. A small number of Arabs
remained, as a minority within a majority Jewish population.

The Palestinian Arabs felt aggrieved by the displacement of their fellow country people, and by
their reduction from the predominant population group to a minority. The Jews who established
Israel viewed it as a state for the Jews of the world, which implied less than full status for others.
For Israel, the Palestinian Arabs were a potential fifth column, hostile to the concept of a Jewish
state in territory they deemed wrongfully taken from them. The government instituted and
maintained martial law in the Arab-populated areas until 1966.

1
John Quigley, Apartheid outside Africa: The Case of Israel, https://mckinneylaw.iu.edu., last visited on 24th April
2019 at 4:00 p.m.
2
Ibid.
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The first manifestation of an Israeli policy towards the Palestinian Arabs came in 1948, during
the hostilities that led to the formation of Israel as a state. As Israeli military units captured Arab
towns, they compelled many of their residents to vacate. They frightened away many others by
heavy bombardment. The Arabs' fear was heightened by executions of substantial numbers of
Arab civilians perpetrated by right-wing elements among the Israeli forces. Over 85% of the
900,000 Arabs who at the start of 1948 lived in the territory that came to be Israel were gone by
the end of that year, having become refugees in nearby states.

Count Folke Bernadotte, who visited the region as United Nations mediator in September 1948,
urged Israel to repatriate the Arab refugees. Israel was bringing Jews into the country as migrants,
thereby adding to the settlers who had brought the Jewish segment of Palestine's population from
less than 5% in the nineteenth century to 30% by 1947. Bernadotte found something wrong in this
Jewish migration coupled with the refusal to repatriate the Arabs. "It would be an offence against
the principles of elemental justice," Bernadotte said, "if these [Palestinian Arab] victims of the
conflict were denied the right to return to their homes while Jewish immigrants flow into
Palestine.’ " But David Ben Gurion, Israel's first prime minister, said of the Arab refugees, "[w]e
must do everything to ensure that they never do return!"' The United Nations General Assembly
called on Israel to repatriate the Arab refugees. To date, it has not done so.3

The aim of the political movement that established Israel was to form a Jewish state in a territory
that was Arab. A Jewish state was not possible so long as an Arab majority remained. When Ben
Gurion, in December 1947, planned the military campaign that would give Palestine over to his
movement, he said that the offensive would "greatly reduce the percentage of Arabs in the
population of the new state.

As a result of the forced relocation and refusal to repatriate, Jews in Israel enjoy a numerical
predominance over Arabs (83% to 170%). This numerical advantage alone would give the Jews
a preponderant role. However, the Israeli government uses exclusionary legislation directed
against the Arabs in important aspects of social life.

 IDEOLOGY OF STATE OF ISRAEL

Israeli legislation reflects an official ideology that Israel is a Jewish state. Israel defines itself as a
state of the Jews. The Declaration of the Establishment of the State of Israel called Israel a "Jewish
State." The signers identified themselves as "representatives of the Jewish Community of Eretz-

3
Ibid.
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Israel and of the Zionist Movement." While the Declaration does not carry the force of law, it has
been held by the courts to define Israel's "fundamental credo."4

Israeli legislation identifies Israel as a Jewish state. In a 1952 law, the Knesset declared that Israel
"regards itself as the creation of the entire Jewish people." In a 1985 law the Knesset prohibited
from standing in Knesset elections any candidates "rejecting the existence of the State of Israel as
the state of the Jewish people." The Knesset also prohibited its members from tabling a bill that
"negates the existence of the State of Israel as the state of the Jewish people."5

In the Flag and Emblem Law, Israel's parliament (Knesset) used a Jewish symbol, the Star of
David, in the state flag, and another Jewish symbol, the menorah, as the official emblem of the
state. The menorah is connected to the remembrance of the destruction of the Second Temple in
Jerusalem by the Roman Emperor Titus. Its use, said one scholar, signifies that the establishment
of Israel was "a return of the Jews to political existence as an independent nation."

Judges in Israel refer to Jewish religious law in construing Israeli law. One statute adopted by the
Knesset requires a judge "faced with a legal question requiring decision" who "finds no answer to
it in statute law or case law or by analogy" to "decide it in the light of the principles of freedom,
justice, equity and peace of Israel's heritage.” Since Israel is defined legislatively as a Jewish
state, "Israel's heritage" means Jewish heritage.

In legislative drafting, said a former attorney general of Israel, "[w]henever our experts find in
Jewish law a provision which we can adapt to the needs of our modem and progressive country,
we give it priority over the provisions of other law systems." The Ministry of Justice set up a
Jewish Law department to advise the Knesset committees on Jewish law as it relates to bills under
consideration. The drafters' commentary on the Succession Law of 1952 states: "In the essentials
of the rules we have endeavoured to rest our proposals as far as possible upon Jewish Law, and in
a number of matters-and among them the more basic, such as maintenance out of the estate-we
regard our proposals as a kind of continuation of Jewish Law." "Israel's specific mission is to
constitute the national state of the Jews and to preserve and further Jewish national culture,"
explained one specialist in Jewish law.6

 CITIZENSHIP LAWS

Preference for Jews is seen in Israel's laws on immigration and citizenship. The 1950 Law of
Return gave "every Jew... the right to come to this country,” while the 1952 Nationality Law

4
Ibid.
5
Ibid.
6
Ibid.
10 | P a g e
conferred Israeli citizenship automatically on a Jew who settles in Israel. An Israeli jurist-
diplomat viewed this unrestricted immigration by Jews as an integral part of the aspiration for a
Jewish state. Ben Gurion, explaining the Law of Return, said, "[t]his is not a Jewish State only
because Jews constitute a majority, but a State for Jews wherever they are, and for every Jew who
wants to be here." He said that the Law of Return embodied "a central purpose of our state, the
purpose of the ingathering of exiles."

Palestinian Arabs displaced in 1948 have no right to return under Israeli law. They are excluded
from citizenship by a provision in the Nationality Law that permits acquisition of nationality by a
person who maintained continuous residence in Israel from May 14, 1948, to July 14, 1952, or
who legally returned during that period, if, in addition, the person registered as an inhabitant, by
March 1, 1952. This provision was intended to apply to Palestinian Arabs, and it excluded from
citizenship those Palestinian Arabs who departed in 1948, unless they returned legally before July
14, 1952.7

For Jews, proof of continuous residence from May 14, 1948, to July 14, 1952, was not required
by the Nationality Law, since any Jew from any state was automatically entitled to Israeli
citizenship. Thus, the proof requirement imposed on the Palestinian Arabs an obstacle not placed
on Jews. Even for Arabs who never departed, the proof requirement was a serious impediment,
because many Arabs could not prove residency to the satisfaction of authorities and thus became
stateless. A child born of stateless parents was also stateless.

In 1968 the Nationality Law was amended to grant citizenship to such a stateless child if the child
applied between the ages of 18 and 21 and had not been convicted of a security offense, or been
sentenced to a term of five or more years imprisonment . In 1980 the Nationality Law was
amended again to remove the requirement of residency between 1948 and 1952 for those Arabs
who were residents of Israel and to grant them citizenship from that time.

 NATIONAL INSTITUTIONS

The Jewish Agency was created in the 1920s as the political arm of the World Zionist
Organization (W.Z.O.). In 1948 the Agency established the Israeli state. After 1948 the two
organizations continued to function, to mobilize Jewish support for Israel. They coordinated the
migration of Jews to Israel and financed their settlement there.

The immigration of Jews, as indicated, was viewed by Israel's government as one of its key
functions. By statute the Knesset authorized the W.Z.O. and J.A. to handle this activity. The World

7
Ibid.
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Zionist Organization/Jewish Agency (Status) Law stated that the executive arm of the W.Z.O.
was a "juristic body” that "takes care as before of immigration and directs absorption and
settlement projects in the State." Thus, the 1952 statute made the W.Z.O. and J.A. responsible for
one of the government's most vital activities. A W.Z.O. /J.A. resolution characterized the work
of the two organizations as being "conducted in the interests of the State of Israel within the
Diaspora."8

In 1971 the J.A. and W.Z.O. were separated into two organizations. The W.Z.O. assumed
responsibility for Zionist political activity, and for promotion of immigration to Israel from
Western states. The Jewish Agency took activities in Israel-rural settlement, immigrant
absorption, youth training, and later, urban rehabilitation. Policy for the two organizations was set
by a single body-the World Zionist Congress.

 PARLIAMENTARY LEGISLATION

The Palestinian Arabs in Israel have the right to vote and to be elected to the Knesset. As a result
of the 1948 expulsion, however, the number of Arabs eligible to vote (17% of the electorate) is
too small to threaten Jewish control.' The 17%, moreover, includes the 100,000 Arabs of East
Jerusalem, few of whom vote because they object to the attempted annexation of East Jerusalem
by Israel in 1967. The confiscation of Arab land cut the economic base of the Arab population
and thereby reduced its political power. Arabs have never held more than eight of the 120 seats in
the Knesset.

Although the Palestinian Arabs, because of their numbers, have no possibility of controlling the
Knesset, Israel's government has moved administratively to keep them from playing an important
political role. For example, in the 1950s, using its martial law powers, Israel's government
prevented Arab political organizing. The military administration did not permit travel by Arabs
from one town to another without a permit, and it routinely denied permits to political activists.
It issued house arrest orders against some activists. It prevented meetings and public speeches of
a nationalist group called the Popular Front.

 HIGHER EDUCATION

Limitations on Arab participation in social and economic life are found in the government's policy
on higher education. Universities in Israel are private. They are forbidden by government
regulation to discriminate in the admission of students on the basis of "race, sex, religion, national
origin or social status." But the universities do not admit Arab applicants to certain faculties, on

8
Ibid.
12 | P a g e
security grounds.' Certain scholarships are given by the Office of Absorption of the J.A. Arabs
are not eligible to compete for the scholarships.' Certain privately funded scholarships are open
only to students with I.D.F. service.

 BANS ON CHALLENGE TO RACIAL DISCRIMINATION

Israel reinforces its race-based immigration policy with measures designed to prevent Palestinian
citizens of Israel from challenging the doctrine and laws that purport to establish Israel as a Jewish
State. Article 7 (a) of the Basic Law: Knesset (1958), for instance, prohibits any political party in
Israel from adopting a platform that challenges the State’s expressly Jewish character:

“A candidates list shall not participate in elections to the Knesset, and a person shall not be a
candidate for election to the Knesset, if the objects or actions of the list or the actions of the
person, expressly or by implication, include one of the following: (1) Negation of the existence of
the State of Israel as a Jewish and democratic State (emphasis added)…”

Voting rights lose their significance in terms of equal rights when a racial group is legally banned
from challenging laws that perpetuate inequality. An analogy would be a system in which slaves
have the right to vote but not against slavery. Such rights might allow slaves to achieve some
cosmetic reforms, such as improved living conditions and protection from vigilante violence, but
their status and vulnerability as chattels would remain. Israeli law bans organized Palestinian
opposition to Jewish domination, rendering it illegal and even seditious.9

 COUNTER ARGUMENTS RAISED TO DENY APARTHEID

o Consistency With International Practice: The Israeli doctrine of maintaining a Jewish
majority, enabling the Jewish people to have its own nation-State, is consistent with the
behaviour of States around the world, such as France, which express the self-determination of
their respective ethnic nations. It is therefore unfair and exceptional treatment — and
implicitly anti-Semitic — to target Israel as an apartheid State when it is only doing the same.
This common argument derives from miscasting how national identities function in modern
nation States. In France, for example, anyone holding French citizenship, regardless of
whether they are indigenous or of immigrant origin, are equal members of the French nation
and enjoy equal rights. According to the Supreme Court, Israel is not the State of the “Israeli
nation” but of the “Jewish nation”.86 Collective rights in Israeli law are explicitly conferred
on Jews as a people and on no other collective identity: national rights for Jews, embedded in
such laws as the Law of Return and the Citizenship Law (discussed above) do not extend to

9
Israeli Practices towards the Palestinian People and the Question of Apartheid, www.unescwa.org..
13 | P a g e
 any other group under Israeli rule. Hence, racial-nationalist privileges are embedded in the
legal and doctrinal foundations of the State. That is exceptional and would meet with
opprobrium in any other country (as it did in apartheid South Africa).
o The Standing Of Palestinians As Foreigners: Palestinian residents of the occupied
Palestinian territory are not citizens of the State and so the State does not owe them rights and
treatment equal to that accorded to Israeli Jewish citizens and settlers. The similarities between
the legal situation in Palestinian territory under Israeli occupation and in Namibia under South
African occupation have already been noted. Israel has denied Palestinians in the occupied
Palestinian territory Israeli citizenship because they are not Jews. As the “in-gathering” of
Jews is a central mission of Israeli State institutions and the State promotes naturalisation of
Jews from other parts of the world, it is fair to assume that the Palestinians, born in territory
under the State’s exclusive control, would have been granted Israeli citizenship had they been
Jewish (and had they wanted it). In its General Recommendation No. 30 on discrimination
against non-citizens, the Committee on the Elimination of Racial Discrimination recommends
that States parties to the International Convention on the Elimination of All Forms of Racial
Discrimination should:
“Recognize that deprivation of citizenship on the basis of race, colour, descent, or national or
ethnic origin is a breach of States parties' obligations to ensure non-discriminatory enjoyment
of the right to nationality.”
The Apartheid Convention cites as crimes of apartheid “measures calculated to deny members
of a racial group or groups” basic human rights, including “the right to a nationality” (article
II (c)).Thus, the argument that Israel cannot be responsible for Palestinians who are non-
citizens reinforces a finding of apartheid when one asks why they are not citizens. At the heart
of the Israeli-Palestinian conflict is indeed the exclusion of the Palestinians, as non-Jews, from
citizenship in the State that governs their country. (The liminal condition of living in a “State
of Palestine” recently recognized by the General Assembly yet lacking all attributes of
sovereignty has not provided Palestinians with a “citizenship” that has concrete application.)
o The Purpose Clause: Israeli policies that oppress Palestinians are motivated by security
concerns, and not the intention or desire to impose racial domination. The Apartheid
Convention and the Rome Statute define crimes of apartheid as acts committed for the purpose
of establishing and maintaining domination by one racial group over another. It could be
argued that Israeli practices are only temporary measures, the purpose of which is not racial
domination, but only to maintain order until a peace agreement removes the need for such
measures. However, the security issues related to Israeli measures relevant to this study are
usually cited only in relation to the occupied Palestinian territory, while the apartheid regime
14 | P a g e
is applied to the Palestinian people as a whole. Moreover, apartheid is prohibited under
international law irrespective of its duration. The Apartheid Convention makes no distinction
in terms of the period of time apartheid is carried out or the State’s ultimate vision for the
future.

15 | P a g e
 CONCLUSION

Israel's policy towards the Arabs, explained Israeli diplomat Abba Eban, "should not be one of
integration. Race separation was perhaps inevitable in Israel, given the manner of its creation.
There was no inclination on the part of the Arabs to assimilate into the Jewish population that had
taken over Palestine and forced out the majority of their country people, just as Africans in
southern Africa were not inclined to assimilate into the European groups that took those areas.

If separation could not be avoided, discrimination could. The legislative and administrative
actions to keep Arabs subordinate find no justification in human rights principles. Some analysts
find Israel's racial discrimination less formal than South Africa's. Yet the enumerated instances of
discrimination in Israel's legislation effect a difference in treatment in major aspects of state
policy. South African legal scholar John Dugard identified the franchise, education, housing, and
land allocation as the "major areas of statutory discrimination" in South Africa. As indicated,
Israel by statute and administrative regulation discriminates against Arabs in these areas.
Regarding the franchise, the exclusion was not so complete as in South Africa. Regarding land,
the separation was more complete, however, since no percentage of the land was set aside for
Arabs.

In two other respects, Israel's discrimination was more severe than South Africa's. The national
institutions, as a device to institutionalize preferences for Jews over Arabs, had no counterpart in
South Africa. In addition, Israel was more efficient in separating out the indigenous population.
Whereas South Africa tried to move Africans into "bantustans," Israel forced Palestinian Arabs
out. "The regime in Pretoria since 1948 has often dreamt of the day when the heartland of South
Africa would be completely white," said Ali Mazrui, an analyst of apartheid, "but the regime has
yet to engineer a nightmare to send Blacks fleeing to their homelands. On this issue of
demographic manipulation there is little doubt that Zionism since 1948 has been more ruthless
and cynical than [South African] apartheid.'

Under the Apartheid Convention, Israel's discriminatory practices qualify as apartheid policy. The
discriminatory practices are not isolated phenomena, but part of a whole whose purpose is to keep
the Palestinian Arabs in a subordinate status. The Palestinian Arabs became secondclass citizens
of Israel. Israel's self-definition as Jewish shows the intent to make a state for Jews and indicates
that the various acts of discrimination are carried out with the purpose to maintain domination by
one racial group over another.

16 | P a g e
The Jewish state that was formed in Palestine in 1948 shared an historical similarity with South
Africa, in that European settlers established themselves and then, to take control, fought Britain,
which in both cases ruled the territory. The Organization of African Unity said that the two states
"have a common imperialist origin.' Former South Africa Prime Minister John Vorster drew this
historical parallel and said that Israel had an "apartheid problem" with its Arab in habitants. He
said, "We view Israel's position and problems with understanding and sympathy." In 1919 Morris
Cohen, an American Jew who opposed the idea of a Jewish state in Palestine, worried aloud that
"a national Jewish Palestine must necessarily mean a state founded on a peculiar [sic] race.' The
goal of establishing a Jewish state, said historian Maxime Rodinson, "could not help but lead to a
colonial type situation and to the development... of a racist state of mind.

In both Israel and southern Africa, the racial group in charge established conditions that went
beyond holding the other group at arm's length. It set up legal obstacles to keep the other group in
a subordinate role in the national life. In both instances, the group in charge was motivated by an
ideology that proclaimed its right to the land. Mazrui said, "[tlhey are both discriminatory
ideologies whose implementation inevitably and logically necessitated strategies of repression
and ethnic exclusivity.”

The international community has exerted considerable effort to eliminate apartheid in southern
Africa. It has been eliminated in Namibia and Rhodesia (Zimbabwe), and South African reform
has been initiated. The demise of apartheid in South Africa is viewed as essential to peaceful
relations in that region. If equality were established in Israel, there too it would set a powerful
precedent for a broader political settlement in the region. Apartheid is a system of governance that
severely inhibits a racial group in its pursuit of living a normal life. As apartheid in Southern
Africa diminishes, the international community cannot become complacent. Systematic racial
discrimination remains an actual or potential phenomenon in many locations. Eradicating such
discrimination must remain a high priority.

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 REFERENCES

1. Eden, Paul A., The Role of the Rome Statute in the Criminalization of Apartheid (June 30,
2013). (2014) 12 Journal of International Criminal Justice 171-191. Available at
SSRN: https://ssrn.com/abstract=2430864
2. John Quigley, Apartheid Outside Africa: The Case of Israel,
https://mckinneylaw.iu.edu/iiclr/pdf/vol2p221.pdf
3. Paul Eden,The Practices of Apartheid as a War Crime: A Critical Analysis, Yearbook of
International Humanitarian Law, 2013.
4. https://www.un.org/depts/dpa/qpal/docs/2012%20Geneva/P3%20mutaz%20qafisheh%20E.p
df
5. Israeli Practices towards the Palestinian People and the Question of Apartheid,
www.unescwa.org.
6. John Dugard and John Reynolds, Apartheid, International Law, and the Occupied Palestinian
Territory, EJIL (2013), Vol. 24 No. 3, 867–913.

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