Since 1967, Palestinians as a people have lived in what the report refers to as four
“domains”, in which the fragments of the Palestinian population are ostensibly
treated differently but share in common the racial oppression that results from the
apartheid regime. Those domains are:
1. Civil law, with special restrictions, governing Palestinians who live as citizens of
Israel;
2. Permanent residency law governing Palestinians living in the city of Jerusalem;
3. Military law governing Palestinians, including those in refugee camps, living
since 1967 under conditions of belligerent occupation in the West Bank and Gaza
Strip;
4. Policy to preclude the return of Palestinians, whether refugees or exiles, living
outside territory under Israel’s control.
Domain 1 embraces about 1.7 million Palestinians who are citizens of Israel. For the
first 20 years of the country’s existence, they lived under martial law and to this day
are subjected to oppression on the basis of not being Jewish. That policy of
domination manifests itself in inferior services, restrictive zoning laws and limited
budget allocations made to Palestinian communities; in restrictions on jobs and
professional opportunities; and in the mostly segregated landscape in which Jewish
and Palestinian citizens of Israel live. Palestinian political parties can campaign for
minor reforms and better budgets, but are legally prohibited by the Basic Law from
challenging legislation maintaining the racial regime. The policy is reinforced by the
implications of the distinction made in Israel between “citizenship” (ezrahut) and
“nationality” (le’um): all Israeli citizens enjoy the former, but only Jews enjoy the
latter. “National” rights in Israeli law signify Jewish-national rights. The struggle of
Palestinian citizens of Israel for equality and civil reforms under Israeli law is thus
isolated by the regime from that of Palestinians elsewhere.
Domain 2 covers the approximately 300,000 Palestinians who live in East Jerusalem,
who experience discrimination in access to education, health care, employment,
residency and building rights. They also suffer from expulsions and home
demolitions, which serve the Israeli policy of “demographic balance” in favour of
Jewish residents. East Jerusalem Palestinians are classified as permanent residents,
which places them in a separate category designed to prevent their demographic
and, importantly, electoral weight being added to that of Palestinians citizens in
Israel. As permanent residents, they have no legal standing to challenge Israeli law.
Moreover, openly identifying with Palestinians in the occupied Palestinian territory
politically carries the risk of expulsion to the West Bank and loss of the right even to
visit Jerusalem. Thus, the urban epicentre of Palestinian political life is caught inside
5
a legal bubble that curtails its inhabitants’ capacity to oppose the apartheid regime
lawfully.
Domain 3 is the system of military law imposed on approximately 6.6 million
Palestinians who live in the occupied Palestinian territory, 4.7 million of them in the
West Bank and 1.9 million in the Gaza Strip. The territory is administered in a manner
that fully meets the definition of apartheid under the Apartheid Convention: except
for the provision on genocide, every illustrative “inhuman act” listed in the
Convention is routinely and systematically practiced by Israel in the West Bank.
Palestinians are governed by military law, while the approximately 350,000 Jewish
settlers are governed by Israeli civil law. The racial character of this situation is
further confirmed by the fact that all West Bank Jewish settlers enjoy the protections
of Israeli civil law on the basis of being Jewish, whether they are Israeli citizens or
not. This dual legal system, problematic in itself, is indicative of an apartheid regime
when coupled with the racially discriminatory management of land and
development administered by Jewish-national institutions, which are charged with
administering “State land” in the interest of the Jewish population. In support of the
overall findings of this report, annex I sets out in more detail the policies and
practices of Israel in the occupied Palestinian territory that constitute violations of
article II of the Apartheid Convention.
Domain 4 refers to the millions of Palestinian refugees and involuntary exiles, most
of whom live in neighbouring countries. They are prohibited from returning to their
homes in Israel and the occupied Palestinian territory. Israel defends its rejection of
the Palestinians’ return in frankly racist language: it is alleged that Palestinians
constitute a “demographic threat” and that their return would alter the demographic
character of Israel to the point of eliminating it as a Jewish State. The refusal of the
right of return plays an essential role in the apartheid regime by ensuring that the
Palestinian population in Mandate Palestine does not grow to a point that would
threaten Israeli military control of the territory and/or provide the demographic
leverage for Palestinian citizens of Israel to demand (and obtain) full democratic
rights, thereby eliminating the Jewish character of the State of Israel. Although
domain 4 is confined to policies denying Palestinians their right of repatriation under
international law, it is treated in this report as integral to the system of oppression
and domination of the Palestinian people as a whole, given its crucial role in
demographic terms in maintaining the apartheid regime.
This report finds that, taken together, the four domains constitute one
comprehensive regime developed for the purpose of ensuring the enduring
domination over non-Jews in all land exclusively under Israeli control in whatever
category. To some degree, the differences in treatment accorded to Palestinians
have been provisionally treated as valid by the United Nations, in the absence of an
assessment of whether they constitute a form of apartheid. In the light of this
6
report’s findings, this long-standing fragmented international approach may require
review.
In the interests of fairness and completeness, the report examines several counterarguments
advanced by Israel and supporters of its policies denying the applicability
of the Apartheid Convention to the case of Israel-Palestine. They include claims that:
the determination of Israel to remain a Jewish State is consistent with practices of other
States, such as France; Israel does not owe Palestinian non-citizens equal treatment
with Jews precisely because they are not citizens; and Israeli treatment of the
Palestinians reflects no “purpose” or “intent” to dominate, but rather is a temporary
state of affairs imposed on Israel by the realities of ongoing conflict and security
requirements. The report shows that none of those arguments stands up to
examination. A further claim that Israel cannot be considered culpable for crimes of
apartheid because Palestinian citizens of Israel have voting rights rests on two errors
of legal interpretation: an overly literal comparison with South African apartheid policy
and detachment of the question of voting rights from other laws, especially provisions
of the Basic Law that prohibit political parties from challenging the Jewish, and hence
racial, character of the State.
The report concludes that the weight of the evidence supports beyond a reasonable
doubt the proposition that Israel is guilty of imposing an apartheid regime on the
Palestinian people, which amounts to the commission of a crime against humanity, the
prohibition of which is considered jus cogens in international customary law. The
international community, especially the United Nations and its agencies, and Member
States, have a legal obligation to act within the limits of their capabilities to prevent and
punish instances of apartheid that are responsibly brought to their attention. More
specifically, States have a collective duty: (a) not to recognize an apartheid regime as
lawful; (b) not to aid or assist a State in maintaining an apartheid regime; and (c) to
cooperate with the United Nations and other States in bringing apartheid regimes to an
end. Civil society institutions and individuals also have a moral and political duty to use
the instruments at their disposal to raise awareness of this ongoing criminal enterprise,
and to exert pressure on Israel in order to persuade it to dismantle apartheid structures
in compliance with international law. The report ends with general and specific
recommendations to the United Nations, national Governments, and civil society and
private actors on actions they should take in view of the finding that Israel maintains a
regime of apartheid in its exercise of control over the Palestinian people.
