Why Allegations that Israel Is An 'Apartheid' State Are False under International Law

Abstract

One of the most highly charged accusations aimed at the State of Israel today is that Israel is an “apartheid” State that engages in widespread, state-sanctioned, racially-motivated discrimination against the “Palestinians,” which term is understood to mean by Israel’s accusers the Arabs living anywhere within the confines of the former Mandate for Palestine plus those identifying as Palestinian who live in third countries. Yet, an honest look at the facts utterly destroys such charges. Apartheid was the South African system that denied certain racial groups access to the political and judicial systems in their country, consigned them to inferior living spaces and educational opportunities, and controlled every aspect of their lives. In this paper, we trace the history of apartheid and note that racial animus and motivation for differential treatment of groups are essential for determining whether apartheid exists.

We note first that the Arabs living in the territory of the former Mandate for Palestine (which includes Israel, the “West Bank,” and the Gaza Strip) are racially identical. Yet, Arab citizens of Israel enjoy the same rights as Jewish Israelis, including the right to form political parties and stand for election, opportunities to serve as members of the Knesset, the judiciary, the diplomatic corps, the police, and so on—rights and privileges totally foreign and anathema to an apartheid State—thereby eviscerating claims of racial discrimination, which underlie apartheid. As such, differences in Israel’s treatment of Arabs living in the “West Bank” and the Gaza Strip and Arabs citizens of Israel are not—and, indeed, cannot be—“racially” motivated for the simple reason that both groups of Arabs are racially identical. For the claim of apartheid to be true, one would expect Israel to devise racially discriminatory policies against all Arabs under its control, which Israel clearly does not do. Hence, there must be another reason for the disparate treatment.

So, how does one explain the differences in treatment between Arab Israelis and Arabs in the “West Bank” and the Gaza Strip? The answer is not complicated. Arabs residing in the “West Bank” and the Gaza Strip are not now—and never have been—Israeli citizens and, therefore, cannot claim rights due to Israeli citizens. All countries favor their own citizens vis-à-vis non-citizens, and doing so is not an indication of apartheid simply because the two groups are treated differently. Moreover, many Arabs in the “West Bank” and the Gaza Strip are engaged in an ongoing armed conflict with Israel. Israel is faced with a hostile Arab population which has yet to come to terms with Israel’s existence and which actively seeks to destroy the Jewish State. That requires Israel to take certain measures for its national security. Because of the ongoing conflict, the relationship of Arabs in the “West Bank” and the Gaza Strip with Israel is governed primarily by the terms of the Law of Armed Conflict. As such, any acts or policies of alleged discrimination by Israel against the Arabs living in the “West Bank” and the Gaza Strip must be viewed through the lens of the Law of Armed Conflict. As long as Israel’s actions and policies comply with applicable international law, they are lawful. Israel’s actions are based on well-recognized national security needs, not racial animus.

The bottom line is this: Israel treats all of its citizens—be they Jew, Arab, or Druze—equally before the law, irrespective of any racial or ethnic differences. And, Israeli policies regarding application of military law, administrative detentions, defensive use of force, security check points, etc., in the “West Bank” and the Gaza Strip are all lawful security measures permitted under the Law of Armed Conflict. Accordingly, Israel’s actions are the very antithesis of apartheid, which should put to rest the apartheid lie once and for all.

Keywords: Apartheid, Israel, Palestine