Date: 19 January 2022

In response to a call from the United Nations Special Rapporteur, Mr Michael Lynk, for his final thematic report on the Occupied Palestinian Territory, Al-Haq, Addameer, Prisoner Support and Human Rights Association, and Habitat International Coalition – Housing and Land Rights Network have submitted a joint report on the question  of whether Israel’s conduct of its occupation is in breach of the prohibition of apartheid under international law. The report details that Israel has been entrenching and maintaining an apartheid regime over the Palestinian people as a whole, through its laws, policies and practices since 1948, and since 1967 has extended the apartheid regime into the West Bank, including East Jerusalem and the Gaza Strip, through its occupation.

The 40-page submission explained that “since its inception, the centrality of the racial dimension of Zionism has formed the foundation of Israel’s ever-lasting institutionalised racial discrimination and apartheid regime”. It further illustrated that Israel has been strategically using the fragmentation of the Palestinian people as the principal tool to establish, entrench, and operationalise its apartheid regime in Palestine: “[c]ontrary to the claim that Israel’s prolonged occupation has turned into apartheid, Israel’s occupation is, in fact, part and parcel of the overarching settler colonial and apartheid regime that Israel always intended –and continues– to impose on the Palestinian people as a whole.”

The organisations asserted that the prohibition of apartheid applies extraterritorially, particularly in situations of occupation and that International Humanitarian Law (IHL) is not the only relevant and applicable legal framework in situations of occupation. It added that IHL “applies concomitantly with international human rights law (IHRL) as well as other rules of international law, including the prohibition of apartheid”. Furthermore, it explained how “for example, Israel as an Occupying Power in the OPT has been adopting a policy akin to that of pick-and-choose of the rules of international (humanitarian) law. For instance, while it accepts the applicability of IHL provisions that entail different treatment (which, in a way, rationalise and downsize its apartheid practices), it rejects the applicability of other IHL provisions that do not serve its apartheid regime’s settler-colonial ambition in Palestine, e.g., provisions prohibiting transferring its own population to the territory it occupies, i.e., its colonial settlements activities and expansion in the OPT”.

It further reiterated that “although the law of occupation may entail different treatment of the two groups, it also entails an absolute prohibition of any inhuman acts against the protected persons” and that Article 84(5) of 1977 Additional Protocol I explicitly prohibits apartheid. It concluded that “the commission of inhuman acts –with the purpose of establishing and maintaining domination and systematic oppression by one racial group over another– in the context of occupation incontrovertibly violates the prohibition of apartheid under international law and constitutes a crime against humanity pursuant to Article 7(j) of the Rome Statute” of the International Criminal Court (ICC).

The submission also explained in details the legal architecture of the Israeli apartheid and how Israel has been maintaining its apartheid through its occupation. In doing so, it outlined that Israel apartheid laws, policies and practices revolve around two main pillars. The first concerns its land and property discriminatory policies and practices, and the second concerns its residency and nationality discriminatory policies and practices.

The organisations concluded that “for decades, Palestinian civil society and human rights organisations have been accurately characterising the Israeli occupation practices in the OPT as that of apartheid.” It adds that there has been “a growing recognition and condemnation of Israeli apartheid, including reports by prominent international institutions as well as, by Israeli, regional, and international human rights organisations.” It further asserted that Israel’s latest designations of Palestinian civil society and human rights organisations as “terrorist organisations” shows that Israel is willing to do anything to silence those who expose the war crimes and crimes against humanity of its apartheid regime”.

In addition, it concluded that “it is time that the international community hold Israel accountable for its apartheid.  It is time that the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967 recognises the apartheid regime on both sides of the Green Line, in violation of the prohibition against apartheid under the rules of international law”.

Finally, the organisations provided the following recommendation to the international community, the United Nations and the ICC:

• Recognize and condemn Israeli apartheid against the Palestinian people; discharge their duty of nonrecognition and take effective measures, including stopping arms trade (among the many options already adopted in S/465 (1980) A/RES/37/123, A/RES/39/146 and those proposed in the NGOs’ joint letter of 2009 in the Goldstone followup)
• Ensure that Israel dismantles its regime of institutional discrimination, oppression, and apartheid against the Palestinian people and ends the occupation of Palestine;
• Ensure that Israel fulfils and facilitates Palestinian refugees’ right to return
• Ensure that Israel immediately, fully, and unconditionally lifts its illegal closure and blockade on the Gaza Strip;
• Ensure accountability and justice for widespread, gross, and systemic violations against the Palestinian people, including for the crime of apartheid;
• States which have not already done so must ratify the 1973 Apartheid Convention;
• Support the independence of the International Criminal Court and protect the Court against attacks or political pressure as it conducts its investigation into the Situation in Palestine, including the crime of apartheid against the Palestinian people;
• Support the mandate of the UN Independent International Commission of Inquiry on the OPT, including East Jerusalem, and Israel, established in May 2021.
• Reconstitute the UN Centre Against Apartheid and the UN Special Committee against Apartheid;
• Expanding mandate of Special Rapporteur to include the Palestinian people as a whole on both sides of the Green Line and abroad;
• For the International Criminal Court to conduct a prompt, thorough, and comprehensive investigation of the crimes of apartheid and persecution, and other associated crimes that fall within the jurisdiction of the Court concerning the Situation in Palestine, and accordingly prosecute relevant perpetrators.

Please find submission attached here.