PART 1 OF 2: ISRAELI PRACTICES TOWARD THE PALESTINIAN PEOPLE AND THE QUESTION OF APARTHEID

ISRAELI PRACTICES TOWARD THE PALESTINIAN PEOPLE 

AND THE QUESTION OF APARTHEID

© 2017 United Nations 

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Preface 

The authors of this report, examining whether Israel has established an apartheid regime that oppresses and dominates the Palestinian people as a whole, fully appreciate the sensitivity of the question.1 Even broaching the issue has been denounced by spokespersons of the Israeli Government and many of its supporters as anti-Semitism in a new guise. In 2016, Israel successfully lobbied for the inclusion of criticism of Israel in laws against anti-Semitism in Europe and the United States of America, and background documents to those legal instruments list the apartheid charge as one example of attempts aimed at “destroying Israel’s image and isolating it as a pariah State”.2 

The authors reject the accusation of anti-Semitism in the strongest terms. First, the question of whether the State of Israel is constituted as an apartheid regime springs from the same body of international human rights law and principles that rejects anti-Semitism: that is, the prohibition of racial discrimination. No State is immune from the norms and rules enshrined in the International Convention on the Elimination of All Forms of Racial Discrimination, which must be applied impartially. The prohibition of apartheid, which, as a crime against humanity, can admit no exceptions, flows from the Convention. Strengthening that body of international law can only benefit all groups that have historically endured discrimination, domination and persecution, including Jews.

Secondly, the situation in Israel-Palestine constitutes an unmet obligation of the organized international community to resolve a conflict partially generated by its own actions. That obligation dates formally to 1922, when the League of Nations established the British Mandate for Palestine as a territory eminently ready for independence as an inclusive secular State, yet incorporated into the Mandate the core pledge of the Balfour Declaration to support the “Jewish people” in their efforts to establish in Palestine a “Jewish national home”.3 Later United Nations Security Council and General Assembly resolutions attempted to resolve the conflict generated by that arrangement, yet could not prevent related proposals, such as partition, from being overtaken by events on the ground. If this attention to the case of Israel by the United Nations appears exceptional, therefore, it is only because no comparable linkage exists between United Nations actions and any other prolonged denial to a people of their right of self-determination.

Thirdly, the policies, practices and measures applied by Israel to enforce a system of racial discrimination threaten regional peace and security. United Nations resolutions have long recognized that danger and called for resolution of the conflict so as to restore and maintain peace and stability in the region.

To assert that the policies and practices of a sovereign State amount to apartheid constitutes a grave charge. A study aimed at making such a determination should be undertaken and submitted for consideration only when supporting evidence clearly exceeds reasonable doubt. The authors of this report believe that evidence for suspecting that a system of apartheid has been imposed on the Palestinian people meets such a demanding criterion. Given the protracted suffering of the Palestinian people, it would be irresponsible not to present the evidence and legal arguments regarding whether Israel has established an apartheid regime that oppresses the Palestinian people as a whole, and not to make recommendations for appropriate further action by international and civil society actors.

In sum, this study was motivated by the desire to promote compliance with international human rights law, uphold and strengthen international criminal law, and ensure that the collective responsibilities of the United Nations and its Member States with regard to crimes against humanity are fulfilled. More concretely, it aims to see the core commitments of the international community to upholding international law applied to the case of the Palestinian people, in defense of its rights under international law, including the right of self-determination.

Executive Summary 

This report concludes that Israel has established an apartheid regime that dominates the Palestinian people as a whole. Aware of the seriousness of this allegation, the authors of the report conclude that available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the crime of apartheid as legally defined in instruments of international law.

The analysis in this report rests on the same body of international human rights law and principles that reject anti-Semitism and other racially discriminatory ideologies, including: the Charter of the United Nations (1945), the Universal Declaration of Human Rights (1948), and the International Convention on the Elimination of All Forms of Racial Discrimination (1965). The report relies for its definition of apartheid primarily on article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973, hereinafter the Apartheid Convention):

The term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to… inhuman acts 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. 

Although the term “apartheid” was originally associated with the specific instance of South Africa, it now represents a species of crime against humanity under customary international law and the Rome Statute of the International Criminal Court, according to which: 

“The crime of apartheid” means 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. 

Against that background, this report reflects the expert consensus that the prohibition of apartheid is universally applicable and was not rendered moot by the collapse of apartheid in South Africa and South West Africa (Namibia).

The legal approach to the matter of apartheid adopted by this report should not be confused with usage of the term in popular discourse as an expression of opprobrium. Seeing apartheid as discrete acts and practices (such as the “apartheid wall”), a phenomenon generated by anonymous structural conditions like capitalism (“economic apartheid”), or private social behavior on the part of certain racial groups towards others (social racism) may have its place in certain contexts. However, this report anchors its definition of apartheid in international law, which carries with it responsibilities for States, as specified in international instruments.

The choice of evidence is guided by the Apartheid Convention, which sets forth that the crime of apartheid consists of discrete inhuman acts, but that such acts acquire the status of crimes against humanity only if they intentionally serve the core purpose of racial domination. The Rome Statute specifies in its definition the presence of an “institutionalized regime” serving the “intention” of racial domination. Since “purpose” and “intention” lie at the core of both definitions, this report examines factors ostensibly separate from the Palestinian dimension — especially, the doctrine of Jewish statehood as expressed in law and the design of Israeli State institutions — to establish beyond doubt the presence of such a core purpose.

That the Israeli regime is designed for this core purpose was found to be evident in the body of laws, only some of which are discussed in the report for reasons of scope. One prominent example is land policy. The Israeli Basic Law (Constitution) mandates that land held by the State of Israel, the Israeli Development Authority or the Jewish National Fund shall not be transferred in any manner, placing its management permanently under their authority. The State Property Law of 1951 provides for the reversion of property (including land) to the State in any area “in which the law of the State of Israel applies”. The Israel Lands Authority (ILA) manages State land, which accounts for 93 per cent of the land within the internationally recognized borders of Israel and is by law closed to use, development or ownership by non-Jews. Those laws reflect the concept of “public purpose” as expressed in the Basic Law. Such laws may be changed by Knesset vote, but the Basic Law: Knesset prohibits any political party from challenging that public purpose. Effectively, Israeli law renders opposition to racial domination illegal. 

Demographic engineering is another area of policy serving the purpose of maintaining Israel as a Jewish State. Most well known is Israeli law conferring on Jews worldwide the right to enter Israel and obtain Israeli citizenship regardless of their countries of origin and whether or not they can show links to Israel-Palestine, while withholding any comparable right from Palestinians, including those with documented ancestral homes in the country. The World Zionist Organization and Jewish Agency are vested with legal authority as agencies of the State of Israel to facilitate Jewish immigration and preferentially serve the interests of Jewish citizens in matters ranging from land use to public development planning and other matters deemed vital to Jewish statehood. Some laws involving demographic engineering are expressed in coded language, such as those that allow Jewish councils to reject applications for residence from Palestinian citizens. Israeli law normally allows spouses of Israeli citizens to relocate to Israel but uniquely prohibits this option in the case of Palestinians from the occupied territory or beyond. On a far larger scale, it is a matter of Israeli policy to reject the return of any Palestinian refugees and exiles (totaling some six million people) to territory under Israeli control.

Two additional attributes of a systematic regime of racial domination must be present to qualify the regime as an instance of apartheid. The first involves the identification of the oppressed persons as belonging to a specific “racial group”. This report accepts the definition of the International Convention on the Elimination of All Forms of Racial Discrimination of “racial discrimination” as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. On that basis, this report argues that in the geopolitical context of Palestine, Jews and Palestinians can be considered “racial groups”. Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination is cited expressly in the Apartheid Convention.

The second attribute is the boundary and character of the group or groups involved. The status of the Palestinians as a people entitled to exercise the right of self-determination has been legally settled, most authoritatively by the International Court of Justice (I.C.J) in its 2004 advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. On that basis, the report examines the treatment by Israel of the Palestinian people as a whole, considering the distinct circumstances of geographic and juridical fragmentation of the Palestinian people as a condition imposed by Israel. (Annex II addresses the issue of a proper identification of the “country” responsible for the denial of Palestinian rights under international law.) 

This report finds that the strategic fragmentation of the Palestinian people is the principal method by which Israel imposes an apartheid regime. It first examines how the history of war, partition, de jure and de facto annexation and prolonged occupation in Palestine has led to the Palestinian people being divided into different geographic regions administered by distinct sets of law. This fragmentation operates to stabilize the Israeli regime of racial domination over the Palestinians and to weaken the will and capacity of the Palestinian people to mount a unified and effective resistance. Different methods are deployed depending on where Palestinians live. This is the core means by which Israel enforces apartheid and at the same time impedes international recognition of how the system works as a complementary whole to comprise an apartheid regime.

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 favor 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 epicenter of Palestinian political life is caught inside 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 4.6 million Palestinians who live in the occupied Palestinian territory, 2.7 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 neighboring 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 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. 

Introduction 

This report examines the practices and policies of Israel with regard to the Palestinian people in its entirety. This is not an arbitrary choice. The legal existence of the “Palestinian people” and its right, as a whole people, to self-determination were confirmed by the International Court of Justice (I.C.J) in its advisory opinion on the separation wall in occupied Palestinian territory:1 

As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a “Palestinian people” is no longer in issue. Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, lsraeli Prime Minister. In that correspondence, the President of the PLO recognized “the right of the State of Israel to exist in peace and security” and made various other commitments. In reply, the Israeli Prime Minister informed him that, in the light of those commitments, “the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people”. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its “legitimate rights” (preamble, paras. 4, 7, 8; article II, para. 2; article III, paras. 1 and 3; article XXII, para. 2). The Court considers that those rights include the right to self-determination, as the General Assembly has moreover recognized on a number of occasions (see, for example, resolution 58/163 of 22 December 2003). 

The status of the Palestinians as a people is therefore legally settled (although Israel contests it), and so the practices and policies of Israel towards the whole Palestinian people, despite the Palestinians being fragmented geographically and politically, should be addressed as a single, unified matter. That view is reinforced by the realization that there is no prospect for achieving fundamental Palestinian rights, above all the right of self-determination, through international diplomacy as long as this question remains open. 

The authors hope that this report will assist United Nations Member States in making responsible and full use of their national legal systems in the service of the global common good. Civil society organizations are also urged to align their agendas and priorities with the findings of this report. Nonetheless, it is primarily incumbent on Israel to comply with international criminal law. Apartheid as an international crime is now viewed by jurists as a peremptory norm (jus cogens) of international customary law, which creates obligations erga omnes. In other words, it is an overriding principle, from which no derogation is permitted, and which is therefore binding, regardless of the consent of sovereign States, and cannot be renounced by national Governments or their representatives.2 In effect, this means that even States that do not accede to the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the Apartheid Convention) are responsible for adhering to its obligations. Israel is thus bound by its obligations to end a crime of apartheid if authoritative findings determine that its practices and policies constitute such a criminal regime.

1. 

The Legal Context Short History 

of the Prohibition of Apartheid 

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 1992.6 

The prohibition of racial discrimination traces to the earliest principles of the United Nations. While a full list would overburden this report, 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.7 Resolution 1761(XVII) of 1962 established what came to be called the Special Committee against Apartheid.8 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, 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. 

This report proceeds on the assumption that apartheid is a crime against humanity and that all Member States of the United Nations are legally responsible for acting to prevent, end and punish its practice. 

Alternative definitions of apartheid 

Arguments about whether a State practices apartheid rest on how apartheid is defined. Several definitions are currently used in polemical debate with regard to Israel, which is frequently labelled an “apartheid State” for its practice of discrete “acts of apartheid”, such as the “apartheid wall”.10 Those who insist that Israel cannot be held culpable for apartheid argue that the country’s laws are fundamentally different from those of apartheid South Africa: for example, because Palestinian citizens of Israel have the right to vote.11 These diverse arguments arguably fall outside a study grounded in the tenets of international law as set forth in the pertinent instruments, but a quick overview of them here is warranted. This brevity should not be taken to imply a dismissal of such definitions, which have their place beyond strict considerations of international law. Rather, the overview serves to explain why they are not employed in this report. Neat divisions cannot always be made between these definitions, and some clearly overlap, but they can be identified as types or tendencies. 

1. Defining only regimes consistent with the apartheid regime in South Africa as being apartheid, so that, by definition, digressions from South African practices preclude any charge of apartheid. 

2. Treating discrete practices considered to have qualities of apartheid, such as the so-called “apartheid wall” (“separation fence” or “separation barrier” in official Israeli discourse), as signifying that a State has established a comprehensive apartheid regime. 

3. Defining apartheid as the outcome of anonymous structural global forces, such as global corporate influences or neoliberalism, as enforced by Bretton Woods institutions. 

4. Defining apartheid as the aggregate body of private racist practices by the dominant society as a whole, whereby State involvement is a contingent tool for enforcing a draconian social system based on racial hierarchy, discrimination and segregation. 

5. Treating apartheid as pertaining only to Palestinian citizens of Israel, or only to Palestinians in the occupied territory, or excluding Palestinian refugees and involuntary exiles living outside territory under Israeli control.12 

These types of definition, and the reasons that make them unsuitable for this report, are elaborated upon below.

1. The comparison with southern Africa 

Arguments about whether Israel has established an apartheid regime often compare the policies and practices of Israel with the system of apartheid in southern Africa (South Africa and Namibia).13 The very term “apartheid” may suggest that the system of racial discrimination as practiced by the South African regime constitutes the model for a finding of apartheid elsewhere.14 The comparison does sometimes provide illuminating insights: for instance, by clarifying why existing proposals for a two-State solution in Mandate Palestine are most likely to generate a Palestinian Bantustan.15 Such insights are found by examining the South African distinction between so-called “petty apartheid” (the segregation of facilities, job access and so forth) and “grand apartheid”, which proposed solving racial tensions with the partition of South African territory and by establishing black South African “homelands” delineated by the regime. Be that as it may, the South African comparison will be mostly avoided in this report, because (1) such comparison contradicts the universal character of the prohibition of apartheid and (2) because apartheid systems that arise in different countries will necessarily differ in design. Nonetheless, because they tend to have much in common, this approach requires brief elaboration. 

(a) Reasons for the error of comparison 

The first reason people turn to the South African case is that the collective memory of the South African struggle and the term “apartheid” itself encourage this error. On coming to power in 1948, the Afrikaner-dominated Nationalist Party translated its constituency’s long-standing beliefs about racial hierarchy into a body of racial laws designed to secure white supremacy and determine the life conditions and chances of everyone in the country on the basis of race. The Nationalists’ term for this comprehensive system was apartheid (Afrikaans for “apart-hood” or “separate development”).16 The opposition to apartheid (coordinated by the African National  Congress, the Pan-African Congress, the domestic United Democratic Front and other southern African actors, as well as sympathetic international human rights networks) accordingly adopted the term in order to denounce it. The General Assembly did the same, using the term for a series of measures concerning South Africa. For many people, this long history of legal activism naturalized the association between apartheid and South Africa to the point of conflation. 

That this conflation is a legal error can be seen in the history of usage through which the term gained universal application: 

• 1962 – The General Assembly established the Special Committee on the Policies of Apartheid of the Government of South Africa, later renamed the Special Committee against Apartheid; 

• 1965 – Under the International Convention on the Elimination of All Forms of Racial Discrimination, apartheid was classified as a form of racial discrimination (preamble and article 3) with no mention of South Africa; 

• 1973 – The Apartheid Convention clarified that “inhuman acts” that constitute the crime of apartheid would “include” acts that are “similar to” those of apartheid South Africa; 

• 1976 – The Secretariat of the United Nations set up the Center against Apartheid; 

• 1998 – Apartheid was listed in the Rome Statute as a crime against humanity, with no mention of South Africa. 

That the term has come to have universal application is clarified by South African jurist John Dugard (a leading legal scholar of apartheid): 

That the Apartheid Convention is intended to apply to situations other than South Africa is confirmed by its endorsement in a wider context in instruments adopted before and after the fall of apartheid… It may be concluded that the Apartheid Convention is dead as far as the original cause for its creation – apartheid in South Africa – is concerned, but that it lives on as a species of the crime against humanity, under both customary international law and the Rome Statute of the International Criminal Court (emphasis added).17

This report assumes that the term “apartheid” has come to have universal application in international law and is accordingly not confined to the South African case. 

(b) The paucity of precedents 

A second reason people turn to the South African comparison is that, because no other State has been accused of the crime of apartheid, South Africa stands as the only case providing a precedent. Given the importance of precedents in the interpretation of law, it is arguably natural for people to look at the “inhuman acts” of apartheid in southern Africa as the models or benchmarks for what apartheid “looks like”. For example, some claim that Israel clearly does not practice apartheid because Palestinian citizens of Israel have the right to vote in national elections, while black South Africans did not. That the design of apartheid regimes in other States must necessarily differ — due to the unique history of their societies and the collective experience shaping local racial thought, such as settler colonialism, slavery, ethnic cleansing, war or genocide — is neglected in such a simplified search for models. 

Nevertheless, the case of southern Africa does serve to expose some legal arguments as specious. For example, it might be argued that the treatment by Israel of Palestinian populations outside its internationally recognized borders (that is, in the occupied Palestinian territory and abroad) falls beyond the scope of the question, making its policies on Palestinian refugees and Palestinians living under occupation irrelevant to a charge of apartheid. That this argument is unsupportable is confirmed by reference to I.C.J advisory opinions regarding the behavior of South Africa in South West Africa (Namibia).18 In 1972, the I.C.J found South African rule over Namibia illegal partly on the grounds that it violated the rights of the Namibian people by imposing South African apartheid laws there.19 South Africa was thus held to account for apartheid practices outside its own sovereign territory and in respect to non-citizens. 

This report assumes that the question of formal sovereignty is not germane to a finding of apartheid. 

2. Apartheid as discrete practices 

Discrete acts by Israel are frequently labelled as examples of “apartheid”: for example, as noted earlier, in references to the “apartheid wall”. Such references are useful to those wishing to highlight how the forcible segregation of groups strongly suggests apartheid. Yet it would be erroneous to take such isolated practices as indicative that a State is constituted as an apartheid regime.20 Rather, the Apartheid Convention provides a definition that stresses the combination of acts with their “purpose” or intent: 

For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhuman acts committed for the purpose of (emphasis added) establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them (article II). 

The Convention then lists six categories of such “inhuman acts”. In article 7 (2) (h), the Rome Statute formulates the same concept differently, but again places emphasis on such acts as reflecting an “intention”: 

“The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1 [i.e., “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”], 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. 

Both instruments thus establish that discrete acts are crimes of apartheid only if they are part of an institutionalized regime and have the “intention” or “purpose” of racial domination and oppression. The same acts, if not observably part of such a regime or lacking such a clear purpose, may be denounced as reprehensible instances of racism but do not meet the definition of a crime of apartheid. For that reason, a check-list method alone — such as looking for the “inhuman acts” mentioned in the Apartheid Convention — would be a misreading of the Convention’s intention. In article II, it explicitly establishes that such acts are illustrative, not mandatory, and are crimes of apartheid only if they serve the overarching purpose of racial domination. Hence, such acts can be considered crimes of apartheid only after the existence of an “institutionalized regime of systematic oppression and domination” has been conclusively established. 

The very existence of the Apartheid Convention indicates that apartheid is rightly distinguished from other forms of racial discrimination, already prohibited under instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, by its character as a regime. The Rome Statute expressly refers to apartheid as a regime. In political science, a State regime is the set of institutions through which the State is governed, principally regarding its arrangements for exercising power. In the oft-cited formulation by political scientist Robert Fishman: 

A regime may be thought of as the formal and informal organization of the center of political power, and of its relations with the broader society. A regime determines who has access to political power, and how those who are in power deal with those who are not… Regimes are more permanent forms of political organization than specific governments, but they are typically less permanent than the State.21 

On the basis of this definition, relevant evidence for an apartheid regime in Israel/Palestine must go beyond identifying discrete acts and determine whether the regime blocks access to “the centre of political power” on the basis of race. Moreover, the Apartheid Convention specifies that “organizations, institutions and individuals” may be culpable for the crime of apartheid (article I, para. 2). This, too, means that the State as a whole may be held accountable for committing that crime. 

Finally, identifying apartheid as a regime clarifies one controversy: that ending such a regime would constitute destruction of the State itself. This interpretation is understandable if the State is understood as being the same as its regime. Thus, some suggest that the aim of eliminating apartheid in Israel is tantamount to aiming to “destroy Israel”. However, a State does not cease to exist as a result of regime change. The elimination of the apartheid regime in South Africa in no way affected the country’s statehood. 

To determine whether specific acts constitute evidence of apartheid, this report examines whether they contribute to the overarching purpose of sustaining an institutionalized regime of racial oppression and domination. 

3. Apartheid as generated by 

anonymous structural conditions 

Some writers have begun to define apartheid as the racialized impact of anonymous socioeconomic forces, such as the capitalist mode of production. It may indeed be heuristically useful to use the term “economic apartheid” to describe situations where economic inequality feeds into racial formation and stratification, even in the absence of any deliberate State policy to achieve this result.22 (Scholars of race relations will identify this as the illimitable race-class debate.) In this model, “apartheid” is used to flag discrimination that emerges spontaneously from a variety of economic conditions and incentives. Some argue that the entire global economy is generating a kind of “global apartheid”.23 

The trouble with this hyper-structural approach is that it renders agency, particularly the role of a given State, unclear or implicitly eliminates it altogether. International law interprets apartheid as a crime for which individuals (or States) can be prosecuted, once their culpability is established by authoritative legal procedures. No such criminal culpability could pertain when treating apartheid as the product of the international structure itself, as this would not signify whether the State regime is configured deliberately for the purpose of racial domination and oppression — the distinguishing quality of apartheid according to the Apartheid Convention and Rome Statute. 

This report considers that the question of whether or not an apartheid system is in place should be analysed at the level of the State, and that the crime of apartheid is applicable only to that level. 

4. Apartheid as private social behavior 

The term apartheid is also used to describe racial discrimination where the main agent in imposing racial domination is the dominant racial group, whose members collectively generate the rules and norms that define race, enforce racial hierarchy and police racial boundaries. The primary enforcers of such systems are private, such as teachers, employers, real estate agents, loan officers and vigilante groups, but they also rely to varying degrees on administrative organs of the State, such as the police and a court system. It follows that maintaining these organs as compliant with the system becomes a core goal of private actors, because excluding dominated groups from meaningful voting rights that might alter that compliance is essential to maintaining the system. 

Social racism doubtless plays a vital role in apartheid regimes, by providing popular support for designing and preserving the system, and by using informal methods (treating people with hostility and suspicion) to intimidate and silence subordinated groups.24 Social racism is rarely entirely divorced from institutionalized racism. Law and practice are so interdependent that the difference between them may seem irrelevant to those oppressed by the holistic system they create. 

Nonetheless, one significant difference distinguishes the two: the role of constitutional law. Where a State’s constitutional law provides equal rights to the entire citizenry, it can provide an invaluable resource for people challenging discrimination at all levels of the society. However, if constitutional law defines the State as racial in character — as in Israel (as a Jewish State), and apartheid South Africa (as a white-Afrikaner State) — movements against racial discrimination not only lack this crucial legal resource but find themselves in the far more dangerous position of challenging the regime itself. Such a challenge will naturally be seen by regime authorities as an existential threat and be persecuted accordingly.25 

In short, it is crucial for a finding of apartheid to establish whether the State’s constitutional law (the Basic Law in Israel) renders discrimination illegal or renders resistance to discrimination illegal. The latter case fits the definition of apartheid in the Apartheid Convention, which lists as a crime against humanity “persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid” (article II (f)).

5. Apartheid and the question of race 

The Apartheid Convention defines apartheid as “domination by one racial group of persons over any other racial group of persons…”. The Rome Statute uses similar wording: “…systematic oppression and domination by one racial group over any other racial group or groups…”. However, neither Jews nor Palestinians are referred to as “races” today. Moreover, Jews are correctly argued to include many “races” in the sense of the old color categories: black, white, Asian and so forth. Thus, one challenge to any accusation that Israel maintains an apartheid regime is that the Israeli-Palestinian conflict is not racial in nature. Hence, the argument goes, Jews cannot be racist toward Palestinians (or anyone else) because Jews themselves are not a race. 

Such arguments reflect a mistaken and obsolete understanding of race. Through the first half of the twentieth century, the idea of race was seen as scientifically established and measurable. Since the Second World War, however, it has come to be recognized as a social construction that varies over time and may be contested within each local context. One illustration of such variability is the North American “one-drop rule”, which has long operated to label as “black” anyone with a perceptible element of African phenotypes or known black ancestry. Yet the same “black” person, travelling to Latin America, finds the one-drop rule working in reverse, such that s/he is not considered “black” if s/he has any portion of “white” blood, instead being called mestizo or mulatto. Thus racial identity changes with the setting. 

Consequently, there can be no single, authoritative, global definition of any race. The only way to determine how racial identities are perceived and practiced locally is through historical studies of racial thought and by field observations in each local setting. The question is therefore not whether Jewish and Palestinian identities are innately racial in character wherever they occur, but whether those identities function as racial groups in the local environment of Israel-Palestine. 

This point raises another question on how race is handled in United Nations instruments.26 For the purposes of human rights law, a finding of racial discrimination is based less on how groups are labelled than how they are treated. For example, although Jews today are not normally referred to as a “race”, Antisemitism is correctly seen as a form of racism. It would indeed be unethical and politically regressive sophistry to argue that Jews cannot be subject to racial discrimination simply because they are not normally referred to as a “race”. The International Convention on the Elimination of All Forms of Racial Discrimination captures that point by defining “racial discrimination” as embracing a range of identities: 

In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (part I, article 1) (emphasis added). 

By invoking that Convention in its preamble, the Apartheid Convention suggests that its language regarding “racial group or groups” embraces the same range of identities. 

Recognizing this contextual meaning of “race” is not haphazard. Since the mid twentieth century, scholars of international law have joined social scientists in coming to understand racial identity as fundamentally a matter of perception, rather than objectively measurable qualities. Racial identities are usually signally somatic and so are seen as stable and permanent, acquired at birth and thus immutable. That races are actually social constructions is evidenced by how such constructions vary from society to society: that is, the significance of specific somatic criteria, such as skin colour or eye shape, to a racial typology. Where such perceptions of an essential identity persist, the difference disappears between language about groups understood as racial or “ethnic”, as descent groups, and that which sees them as sharing a particular national or ethnic origin. What matters in all those cases is that all members of a group — including infants and others who cannot possibly constitute a “racial threat” — are embraced by one policy. A pertinent example of this conflation of terms has been discrimination against Jews, for whom a mix of labels (race, religion and ethnicity) has been used by those pursuing anti-Semitic segregation, persecution or genocide. The question here is, therefore, whether relations between Jews and Palestinians in Mandate Palestine rest on ideas that each group has an immutable character, such that their relations fit the definition of “racial” discrimination. 

A comprehensive review of how Jewish and Palestinian identities are understood locally in Israel-Palestine would overburden this report. Fortunately, one factor confirms the racial quality of both identities in this context: both are considered descent groups (one of the categories in the International Convention on the Elimination of All Forms of Racial Discrimination). Palestinian identity is explicitly based on origins or ancestral origins in the territory of Mandate Palestine. The 1964 Charter of the Palestinian Liberation Organization (PLO)27 expresses this principle by affirming that Palestinian identity is passed down through the paternal line and is inter-generational: 

Article 5: The Palestinian personality is a permanent and genuine characteristic that does not disappear. It is transferred from fathers to sons. 

Palestinian national identity has always been nested within pan-Arabism, an ethno-national identity formulated first as a modern territorial nationalism by Sherif Hussein of Mecca. “Arab” was certainly the generic term for Arabic-speaking people in Palestine when the Zionist movement began to settle the area. General Assembly resolution 181(II) of 1947,28 which recommended the partition of Mandate Palestine into an “Arab State” and a “Jewish State”, drew from that discourse. Updated and promoted especially by Egyptian President Gamal Abdul Nasser to craft an anticolonial Arab identity bloc across the Middle East and North Africa, Arab identity became a vital identity and political resource for the PLO, as reflected in its Charter: 

Article 1: Palestine is an Arab homeland bound by strong Arab national ties to the rest of the Arab countries and which together form the great Arab homeland. … 

Article 3: The Palestinian Arab people has the legitimate right to its homeland and is an inseparable part of the Arab Nation. It shares the sufferings and aspirations of the Arab Nation and its struggle for freedom, sovereignty, progress and unity… 

In this conception, Palestinians are integral members of the Arab “Nation”, but it is the “Palestinian people” that holds the right to self-determination in Mandate Palestine, thus conveying the international legal meaning of “nation” to the Palestinian people. 

In contrast, Jewish identity combines several contradictory elements.29 “Jewish” is certainly a religious identity in the sense that Judaism is a religious faith to which anyone may convert if willing and able to follow the required procedures. On that basis, opponents of Israeli policy insist that Jewishness is not a national identity but simply a religious one, and so Jews qua Jews are not a “people” in the sense of international law and therefore lack the right to self-determination. Supporters of Israel use the same point to deny that Jewish statehood is racist, on the grounds that Zionism and Israel cannot be racist if Jews are not a race. However, those arguments are flawed, even disingenuous, as religious criteria alone are not adequate for defining what it is to be “Jewish”. 

Like many other groups that today are now commonly called “ethnic” or “national”, until the mid-twentieth century Jews were often referred to as a “race”. Jewish-Zionist thinkers adopted the same approach, reflecting contemporary concepts of what races were, how races composed peoples and nations, and how on that basis they had the right to self-determination. For example, Zionist philosopher and strategist Max Nordau commonly used the term “race” for Jews in speaking of Jewish interests in Palestine.30 For decades, the founder of Revisionist Zionism, Vladimir Jabotinsky, wrote passionately about the Jewish “race” and how the “spiritual mechanism” associated with it granted transcendental value to a Jewish State.31 Today, this usage persists in the Memorandum of Association of the Jewish National Fund (JNF), which in article 2 (c) cites one of its objectives as being to “benefit, directly or indirectly, those of Jewish race or descent”. In none of those sources is religious faith even mentioned (because it is recognized to vary): the concern is entirely with descent. Halachah (often translated as “Jewish law”) and social norms in Jewish communities provide that Jewish identity is conveyed from mother to child, irrespective of the individual’s actual religious beliefs or practice. The State of Israel enshrined the central importance of descent in its Law of Return of 1950 (amended in 1970),32 which states that: 

For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. 

Descent is crucial to Jewish identity discourse in Israel because direct lineal descent from antiquity is the main reason given by political-Zionist philosophers  for why Jews today hold the right to self-determination in the land of Palestine. In this view, all Jews retain a special relationship and rights to the land of Palestine, granted by covenant with God: some schools of Zionism hold that Israel is the successor State to the Jewish kingdoms of Saul, David and Solomon. That claim is expressed, inter alia, in the Declaration of Independence of Israel, 33 which affirms that Jews today trace their ancestry to an earlier national life in the geography of Palestine and therefore have an inalienable right to “return”, which is given precedence over positive law: 

The Land of Israel 34 was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books. 

After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. 

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. […] 

That claim to unbroken lineal descent from antiquity attributes collective rights to the “land of Israel” to an entire group on the basis of its (supposed) bloodlines. The incompatible claim that Jewishness is multiracial, by virtue of its character as a religion to which others have converted, is simply absent from this formula. 

The emphasis on descent implicitly portrays all other descent groups — including Palestinians — as lacking any comparable right by virtue of their different descent. Thus the claim to Palestine as the exclusive homeland of the Jewish people rests on an expressly racial conception of both groups. This means that Jews and Palestinians are “racial groups” as defined by the International Convention on the Elimination of All Forms of Racial Discrimination and, accordingly, for the purposes of the Apartheid Convention.

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Testing for an Apartheid Regime in Israel-Palestine

Preface notes

1 This report was prepared in response to a request made by member States of the United Nations Economic and Social Commission for Western Asia (ESCWA) at the first meeting of its Executive Committee, held in Amman on 8 and 9 June 2015. Preliminary findings of the report were presented to the twenty-ninth session of ESCWA, held in Doha from 13 to 15 December 2016. As a result, member States passed resolution 326 (XXIX) of 15 December 2016, in which they requested that the secretariat “publish widely the results of the study”. 

2 Coordinating Forum for Countering Antisemitism (CFCA): FAQ: the campaign to defame Israel. Available from http://antisemitism.org.il/eng/FAQ:%20The%20campaign%20to%20defame%20Israel. The CFCA is an Israeli Government “national forum”. “The new anti-Semitism” has become the term used to equate criticism of Israeli racial policies with antiSemitism, especially where such criticism extends to proposing that the ethnic premise of Jewish statehood is illegitimate, because it violates international human rights law. The European Union Parliament Working Group on Antisemitism has accordingly included in its working definition of anti-Semitism the following example: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of the State of Israel is a racist endeavour” (see www.antisem.eu/projects/eumc-working-definition-of-antisemitism). In 2016, the United States passed the Anti-Semitism Awareness Act, in which the definition of anti-Semitism is that set forth by the Special Envoy to Monitor and Combat AntiSemitism of the Department of State in a fact sheet of 8 June 2010. Examples of anti-Semitism listed therein include: “Denying the Jewish people their right to self-determination, and denying Israel the right to exist.” (Available from https://2009- 2017.state.gov/documents/organization/156684.pdf).

3 The Council of the League of Nations, League of Nations Mandate for Palestine, December 1922, article 2. Available from www.mandateforpalestine.org/the-mandate.html.

Introduction and report notes

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136. Available from www.icj-cij.org/docket/files/131/1671.pdf.

5 John Dugard, ”Introductory note to the Convention on the Suppression and Punishment of the Crime of Apartheid”, United Nations Audiovisual Library of International Law, 2008. Available from http://legal.un.org/avl/ha/cspca/cspca.html.

6 The precise date given for the end of apartheid varies with the benchmark used: decriminalization of the African National Congress (ANC) in 1990; the launching or closure of the CODESA (Convention for a Democratic South Africa) talks in 1991 or 1993 respectively; the assassination of Chris Hani in 1993, which triggered the capitulation of the apartheid regime; the election of Nelson Mandela as President in 1994; or passage of the new Constitution in 1995. Taking the meaningful collapse of apartheid’s legitimacy as a rough signpost, the fall of apartheid is here dated to 1992. 

7 Resolution 395(V) addressed racial discrimination against people of Indian origin in South Africa (A/RES/395(V)). Concern for that population had been expressed earlier, beginning with resolution 44 (I) of 1946 (A/RES/44(I)). 

8 A/RES/1761(XVII).

9 When the Convention was drafted, apartheid had already been described as a crime against humanity by the General Assembly, as in resolution 2202 (XXI) of 1966 (A/RES/2202(XXI) A-B).

10 A literature review of such references exceeds the scope of this report. 

11 CERD/C/ISR/14-16. 

12 Palestinians expelled from the occupied Palestinian territory by Israel and not allowed to return.

13 The term “southern” Africa reflects the practice of South Africa in extending apartheid to South West Africa (now Namibia), which South Africa had held under a League of Nations mandate and refused to relinquish after the Second World War. 

14 Afrikaans is the adapted Dutch of the indigenized Dutch-European “Afrikaner” settler society in southern Africa. 

15 For a study of how arrangements for the Palestinian Interim Self-Government Authority replicate the South African “homelands”, or Bantustans, see Virginia Tilley, “A Palestinian declaration of independence: implications for peace”, Middle East Policy, vol. 17, No. 1 (March 2010). Available from http://mepc.org/journal/middle-east-policy-archives/palestinian-declarationindependence-implications-peace. 

16 The National Party was the principal party in South Africa expressing the Afrikaner worldview and white-nationalist political goals. Hold-outs against United Nations denunciations of apartheid in South Africa included Israel, which maintained a close alliance with the regime throughout its duration, and the United States of America, which had close business ties with South Africa.

17 John Dugard, “Introductory note to the Convention on the Suppression and Punishment of the Crime of Apartheid”. Available from http://legal.un.org/avl/ha/cspca/cspca.html.

18 In the 1960s, South Africa administered South West Africa (Namibia) as a fifth province and applied to it its doctrine of apartheid, complete with Bantustans. The policy attracted repeated criticism from the General Assembly. 

19 The ICJ was addressing the legality of South Africa's continued rule of South West Africa in violation of a Security Council resolution calling for its withdrawal. See especially the last of four opinions issued between 1950 and 1971: International Status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 128; Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, Advisory Opinion, I.C.J. Reports 1955, p. 67; Admissibility of Hearings of Petitioners by the Committee on South-West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 23; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 (especially paras. 131 and 133).

20 Former special rapporteurs John Dugard and Richard Falk highlighted the problem of determining when “features of apartheid” signify that an apartheid regime is operating, which would constitute a matter that might be referred to the ICJ. For both rapporteurs, the question arose with regard to the legality of the Israeli occupation. Mr. Dugard described “road apartheid” in the occupied Palestinian territory and noted that the Israeli occupation has “features” or “elements” of apartheid. However, whether Israel is constituted as an apartheid regime remained for Mr. Dugard a question still to be legally determined (A/62/275). Mr. Falk adopted a similar position (A/HRC/25/67, p. 21).

21 Fishman, Robert M., “Rethinking State and regime: Southern Europe's transition to democracy”, World Politics, vol. 42, No. 3 (April 1990).

22 For more on this, see Cass Sunstein, “Why markets don't stop discrimination”, Social Philosophy and Policy, vol. 8, issue 2 (April 1991). 

23 Anthony H. Richmond, Global Apartheid: Refugees, Racism, and the New World Order (Toronto, Oxford University Press, 1994).

24 Surveys of Jewish Israeli attitudes towards “Arabs” and Palestinians are omitted here because they do not pertain to a study of the State’s institutionalized regime. This omission in no way intends to suggest that popular views are not key guardians and enforcers of that regime. 

25 Although the Constitution of the United States of America states that “We hold these truths to be self-evident, that all men are created equal”, race relations always complicated this principle in practice. Constitutional law favouring white supremacy included the key “separate but equal” provisions in Plessy v. Ferguson, 163 US 537 (1896). They were overturned only in 1954, in Brown v. Board of Education of Topeka, 347 US 483, which was later followed by the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

26 The exception that proves the rule regarding definitions of race is the isolated effort by the International Criminal Tribunal for Rwanda: see Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, Akayesu Trial Judgment, paras. 511-515. 

27 See https://web.archive.org/web/20101130144018/http://www.un.int/wcm/content/site/palestine/pid/12363. 

28 A/RES/181(II). 

29 Internal debates about “who is a Jew” are irrelevant to the State’s construction of Jewishness as a single people, and thus not pertinent to this report. On such debates, see, for example, Noah Efron, Real Jews: Secular Versus Ultra-Orthodox: The Struggle For Jewish Identity In Israel (New York, Basic Books, 2003).

30 See, for example, Max Nordau, “Address to the First Zionist Congress”, 29 August 1897. Available from www.mideastweb.org/nordau1897.htm. 

31 See Vladimir Jabotinsky, A lecture on Jewish history (1933), cited in David Goldberg, To the Promised Land: A History of Zionist Thought (London, Penguin, 1996), p. 181. 

32 Passed by the Knesset on 5 July 1950 and amended on 10 March 1970.

33 Provisional Government of Israel, The Declaration of the Establishment of the State of Israel, Official Gazette, No. 1 (Tel Aviv, 14 May 1948). It is also commonly referred to as the Declaration of Independence. Available from https://www.knesset.gov.il/docs/eng/megilat_eng.htm. 

34 Eretz-Israel in Hebrew.