At the Israeli Military checkpoint Between Bethlehem and Jerusalem, August. 2011 (photo source: ActivStills.com) At the Israeli Military checkpoint Between Bethlehem and Jerusalem, August. 2011 (photo source: ActivStills.com)

The South African session of the Russell Tribunal on Palestine discussed intensively whether Israel’s practices against the Palestinian people constitute the crime of apartheid.1  The findings of that session concluded that Israel is committing the crime of apartheid against the Palestinian people. This Israeli apartheid regime is not limited to the Palestinians living in the occupied Palestinian territory (oPt) but it is also targeting Palestinians residing inside the “Green Line.” Reflections on whether a one or two-state solution would be the appropriate means to end the injustice and suffering in historic Palestine overlook the fact that one legal entity has already been established within that specified territory: the Palestinians, wherever they may reside, are collectively exposed to one coherent structure of apartheid. The main components of that structure discriminate against Palestinians in areas such as nationality, citizenship, residency rights and land ownership. This system was originally applied in 1948 in order to dominate and dispossess all forcibly displaced Palestinians, including the 130,000 who were able to remain within the "Green Line" and later became Israeli citizens. After the occupation of the remaining part of historic Palestine by Israeli forces in 1967, this territory became subjected to the same Israeli apartheid regime.

Nevertheless, Israel's crimes and human rights violations amount to more than just the crime of apartheid. More accurately, Israeli practices are a combination of apartheid, military occupation, and colonization as a means to ethnically cleanse the territory from Palestinian presence. The Zionist Movement, when setting the scene to colonize “Mandate Palestine” in 1897 under the premise, “people without land will get a land without people”, faced three major obstacles:

-          The indigenous Palestinian people who were living in that territory

-          Palestinian property and land rights within that territory

-          Bringing Jewish people to that territory

On overcoming these three obstacles, they needed to create a legal system in order to maintain the newly established status quo. The Zionist Movement, and later Israel, had no interest in creating a system of apartheid in order to simply construct and maintain the domination of one “racial” group over another. Israel’s aim was, and still is, not to exploit the indigenous workforce or simply to limit their political and social participation. Rather, the intention was to establish a homogeneous Zionist-Jewish state exclusively for Jewish people. This was apparent from the early years of the Zionist Movement, illustrated by the fact that Israel has hitherto no defined borders. As explained by Golda Meir, “the borders are determined by where Jews live, not where there is a line on a map”.2 This statement, in combination with Ben-Gurion’s famous writings in 1937, “the compulsory transfer of the Arabs from the valleys of the projected Jewish statecould give us something which we never had… we have to stick to this conclusion the same way we grabbed the Balfour Declaration, more than that, the same way we grabbed at Zionism itself”3, offers endless possibilities for transferring Palestinians out and implanting Jewish settlers into the territory. As illustrated by Nur Masalha, between 1930 and 1948 the Zionist Movement has planned for the transfer of the indigenous Palestinian population in nine different plans, starting with the 1930 Weizmann Transfer Scheme up to Plan Dalet carried out in 1948.4

In order to deal with the three obstacles identified above, the Zionist movement initiated a series of pro-active and preventive measures in the form of laws, practices and policies. The Israeli Law of Return 1950 provides that every Jewish person in the world is entitled to “Jewish nationality” and can immigrate to Israel and acquire Israeli citizenship. This law aims at simplifying and encouraging the immigration of Jewish persons to Israel in order to achieve the "Jewish state" envisioned by Zionism.

The Israeli Absentee Property Law 1950 was used to confiscate most Palestinian property, legally owned by forcibly displaced Palestinian refugees and internally displaced persons (IDPs). Once confiscated, this land became state property.5 As a result of the overall Israeli land regime, Palestinians today own only a few percent of the land which was Mandate Palestine.6

The expansion of existing Palestinian localities in Israel and the oPt has been severely curtailed as a result of Israel's highly discriminatory planning policy. Since the occupation of the West Bank and the Gaza Strip in 1967, Israel has not permitted the establishment of any new Palestinian municipalities.7 Military Order 418 created a planning and building regime which gives full control to the Israeli state in all areas related to planning and development in the oPt. As a result Palestinian communities often find themselves separated from their surrounding lands. In contrast, even the smallest Jewish localities have detailed building plans and regulations regarding land use. To summarise the situation: “Israeli space has been highly dynamic, but the changes have been mainly in one direction: Jews expand their territorial control by a variety of means including on-going settlement, while Arabs have been contained within an unchanged geography.”9

The central obstacle to the Zionist Movement, in form of the Palestinian people, has been addressed by various means throughout the last six decades. More than two million Palestinians have been forcibly displaced from their homes and Israeli laws such as the 1954 Prevention of Infiltration Law and military orders 1649 and 165010have prohibited Palestinians from legally returning to Israel or the oPt. This deliberate and planned forcible displacement amounts to a policy and practice of forcible transfer of the Palestinian population, or ethnic cleansing. This ongoing Nakba has so far resulted in approximately 70% of the Palestinian population worldwide being refugees and/or IDPs.11

Forced population transfer or forcible displacement can be defined as a practice or policy having the purpose or effect of moving persons into or out of an area -either within or across an international border. “The State’s role may be active or passive, but nonetheless contributes to the systematic, coercive and deliberate nature of the movement of population into or out of an area. Thus, an element of official force, coercion or malign neglect is present in the State practice or policy. The State’s role may involve financial subsidies, planning, public information, military action, recruitment of settlers, legislation or other judicial action, and even the administration of justice.”12 Forced population transfer is illegal and has constituted an international crime since the Allied Resolution on German War Crimes, adopted in 1942. The strongest and most recent codification of the crime is found in the Rome Statute of the International Criminal Court, which clearly defines forcible transfer of population and implantation of settlers as war crimes.13

“The essence of population transfer remains a systematic and discriminatory state policy whose purpose is an alteration of the demographic composition of an area by moving people into and/or out of the area.”14 The policy can be implemented in various ways by the state. In the case of Israel, ten major triggers of forced displacement are identifiable:

1. Residency rights revocation and refusal to grant residency statuses including almost total denial of family-reunification and the restrictions on child registration by Palestinian parents with different political statuses issued by Israel – such as the Jerusalem ID and the West Bank ID;

2. Constant Israeli military operations and attacks against the Palestinian people;

3. The construction of the Apartheid Wall and its associated checkpoint and permit regime which severly restricts freedom of movement within the oPt;

4. Restrictive zoning and planning policies including house demolitions and land confiscations;

5. Settlers’ implantation in the oPt and  settler violence and harassment carried out with impunity.

6. Individual and mass deportations of Palestinians and the suppression of any form of resistance including systematic arrests and torture in Israeli prisons;

7. The denial of return and/or freedom of movement within historic Palestine and the political and geographic separation of the West Bank, the Gaza Strip and East-Jerusalem.

8. Restrictions and limitations on the utilization of essential resources, most importantly water, and the undermining of livelihoods in particular among the herding and agriculture-based communities;

9. Marginalization and exclusion of Palestinians -with or without Israeli citizenship- from the Israeli (Jewish) society and the benefits connected to the “Jewish nationality”; 

10. Official or de-facto annexation of huge amounts of land in order to permanently deny the indigenous population to exercise its right to self-determination.

All these triggers aim at forcibly displacing Palestinians by creating an overall untenable living situation which leaves no other choice for the inhabitants than to leave their homes.   Sharett - one of the signatories of Israel'sDeclaration of Independence- defined this when he stated “a policy based on minimal fairness should be adopted toward Arabs who were not inclined to leave”.15Therefore, Israel’s apartheid system is a means to an end and not an endgoal in itself. It does simply seek domination over the indigenous Palestinians but their forcible displacement.

South Africa not only invented the apartheid system but was also proud of its creation and  publicly advocated it. The word "apartheid" itself is Afrikaans for "separateness" and became the official government policy of racial segregation in 1948. The South African apartheid structure was based on a clear-cut social separation and segregation policy. It was unthinkable for a white supremacist to sit next to a black South African in a café, bus or any other social gathering. The implementation of that policy, also referred to as "separate development," was made possible by a series of laws passed in the 1950s. The Population Registration Act and the Group Areas Act classified all South Africans into three racial groups (white, colored and black) and assigned these races to different residential areas and business sectors. Moreover, the Bantu Authorities Act and later the Bantu Homelands Citizenship Act made every black South African a citizen of one of the homelands (Bantustans), thereby effectively excluding them from participating in the South African political process. Additionally, other laws prohibited most social contacts between the races; separate job categories; public facilities; transportation; education; and health systems.16

It is clear from the outset of the formulation and development of South Africa’s apartheid system that the intention was to create a permanent structure and that energy was invested in order to preserve the established status quo. For instance, the 1970 Bantu Homelands Citizens Act was designed to react and adapt to increasing criticism from the international community through establishing separate legal entities in order to pretend that the black population was no longer excluded from the state affairs because they simply no longer belong to the South African state. This attempt aimed at continuing the exploitation of the indigenous workforce and resources –fortifying the existing system- while at the same time discarding its racist, anti-democratic image.

The crime of apartheid and the subsequent Apartheid Convention17 was modelled on, but not limited to, the South African apartheid system. “The Apartheid Convention was the ultimate step in the condemnation of apartheid as it not only declared that apartheid was unlawful because it violated the Charter of the United Nations, but in addition it declared apartheid to be criminal.”18 Today, Israel is guilty of committing a combination of crimes in order to forcibly displace the Palestinian people from historic Palestine. Israel's commission of internationally-sanctioned crimes such as apartheid and persecution, as well as permanent occupation and annexation, are intended to create an unbearable situation in order to drive the indigenous population out. This continuous and calculated strangulation of the Palestinian people must be properly challenged by the international community as it was in South Africa, by codifying that state’s actions and policies into elements of an international crime against humanity. Israel's regime must be judged accordingly and its impunity must be brought to an end because the silence, if not complicity, of powerful members of the international community, in the face of practices and policies that violate fundamental rights and laws further entrenches politics, to the detriment of law.

In fact, the ongoing disrespect for international law in the Palestinian-Israeli conflict undermines the legitimacy of international law, in particular human rights, humanitarian law and international criminal law. Therefore, it is time to ensure and ascertain that international law is more than only coherent words put together, but a legal system which protects rights, establishes obligations and most importantly creates realities according to its values and principles –as seen in the case of South Africa.


[1]For more information please see al-Majdal issue 47.

[2]Noam Chomsky, “Middle East Diplomacy: Continuities and Changes”, Z Magazine (December 1991).

[3]Nur Masalha, Expulsion of the Palestinians: the concept of "transfer" in Zionist political thought, 1882-1948 (Institute for Palestine Studies 1992), p. 210.

[4]Nur Masalha, Expulsion of the Palestinians: the concept of "transfer" in Zionist political thought, 1882-1948 (Institute for Palestine Studies 1992). P.?

[5]See Salman Abu Sitta, “Dividing War Spoils: Israel’s Seizure, Confiscation and Sale of Palestinian Property” (August 2009), available at: http://www.plands.org/store/pdf/Selling%20Refugees%20Land.pdf,

[6]See BADIL, “Palestinian Refugees and Internally Displaced Persons Survey of 2008 - 2009” (2009).

[7]See Salman Abu Sitta,Tthe Palestinian Nakba 1948 (The Palestinian Return Centre 2000).

[8]See A. Cohen-Liftshitz and N. Shalev, The Prohibited Zone: Israeli Planning Policy in the Palestinian Villages in Area C (Bimkom, Jerusalem: 2008).

[9]Kedar, S., Khamaisi, R., and Yiftachel, O., “Land and Planning” in After the Rift: New Directions for Government Policy Towards the Arab Population in Israel (Ghanem, A., Rabinowtiz, D., and Yiftachel, O. eds), p. 17.

[10]Al-Haq, “Al-Haq’s Legal Analysis of Israeli Military Orders 1649 & 1650: Deportation and Forcible Transfer as International Crimes” (April 2010), available at: http://www.alzaytouna.net/english/Docs/2010/Al-Haq-April2010-Legal-Analysis.pdf.

[11]See BADIL, “Palestinian Refugees and Internally Displaced Persons Survey of 2008 - 2009” (2009).p. 57.

[12]Conclusions of the special Rapporteurs, Awn al-Khasawneh and Ribot Hatano, The Human Rights

Dimensions of Population Transfer, including the implantation of settlers and settlements, UN

document E/CN.4/Sub.2/1993/17 of 6 July 1993 at 14-15.

[13]Emily Haslam, “Unlawful Population Transfer and the Limits of International Criminal Law”, The Cambridge Law Journal Vol. 61, No. 1 (March 2002), pp. 66-75.

[14]Simone O’Broin, “Applying International Criminal Law to Israel’s Treatment of the Palestinian People”, BADIL Working Paper No. 12(October 2011), p. 30.

[15]Nur Masalha, A Land without a People: Israel, Transfer and the Palestinians 1949-96 (Faber and Farber Limited 1997), p. 3.

[16]See H. Booysen, “Convention on the Crime of Apartheid”, South African Yearbook of International Law, vol. 2 (1976), p. 56; R.S. Clark, “The Crime of Apartheid” in International Criminal Law (ed. M.C. Bassiouni) vol. 1 (Crimes), Dobbs Ferry, N.Y. (Transnational Press 1986), p. 299.

[17]1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.

[18]John Dugard, “International Convention on the Suppression and Punishment of the Crime of Apartheid” (2008), available at: http://untreaty.un.org/cod/avl/ha/cspca/cspca.html.