The current situation in the occupied West Bank reflects an ever-growing Israeli effort to take over large parts of Area C and to remove as much of its Palestinian population as possible. The Israeli military accomplishes this aim using a variety of measures, with both existing and new regulations providing legal cover for its actions. In addition, there has recently been a marked increase in settler violence in Area C, as well as increased attempts to confiscate land and drive Palestinian inhabitants towards Areas A and B. Two relatively new methods have been increasingly used in this campaign to ethnically cleanse Area C: the designation of areas where Palestinians live as exclusive military zones, and the establishment of farming outposts that deploy tactics amounting to a de facto seizure of Palestinian land.

The current situation in the occupied West Bank reflects an ever-growing Israeli effort to take over large parts of Area C and to remove as much of its Palestinian population as possible

The Battle for Area C

The Oslo Accords, which were signed by Israel and the Palestine Liberation Organization in the 1990s, divided the West Bank into three areas. Area A is the most densely populated of the three, and constitutes 18 percent of the West Bank. It is mostly governed by the Palestinian Authority (PA), although Israel retains full external security control over the area. Area B, which comprises roughly 21 percent of the West Bank and consists mostly of village centers is under full Israeli security control, but the PA runs its civilian affairs, including health, education, and the economy. Area C, which makes up about 60 percent of the West Bank and is home to the majority of the territory’s natural resources and agricultural land, remains under exclusive Israeli control. Area C today is packed with multiple Israeli army bases, 230 illegal Israeli settlements with around 400,000 settlers whose activities are largely governed and condoned by Israel, and 300,000 Palestinians residing in 532 residential areas directly administered by the Israeli Coordinator of Government Activities in the Territories (COGAT)—a unit in the Israeli Ministry of Defense.

Under the Oslo Accords, it was thought that land in the West Bank would gradually be transferred from Area C to Area B, and then finally to Area A, thereby increasing the land and population directly under the control of the Palestinian Authority. This assumed outcome, along with three Israeli military redeployments that moved troops out of several Palestinian areas in 1994, 1995, and 1997, led many to believe that areas under the control of the PA would form the nucleus of a burgeoning Palestinian state once the status of Israeli settlements and the details of security arrangements were hashed out in a final agreement. But with the 1995 assassination of then Israeli Prime Minister Yitzhak Rabin, the process ground to a complete halt, and Area C remained under the full authority of the Israeli Civil Administration, which is subordinate to COGAT.

Every effort has been made to limit, or to outright eliminate Palestinian presence in Area C, and to gradually annex it into Israel

Many Israelis, and particularly Israeli settlers, consider that Area C “belongs” to them, and they therefore see no reason to transfer any more of it to the PA. And in fact, every effort has been made to limit, or to outright eliminate Palestinian presence in Area C, and to gradually annex it into Israel. In fact, some politicians have openly called for the official annexation all Area C lands, with various plans regarding what to do with the 300,000 Palestinians who still live there. However, this effort has been shelved for the time being, following international pressure.

But despite the fact that wholesale annexation has been put on the back burner, Israel’s effort to create and control a West Bank free of Palestinians continues apace, with the Civil Administration working to freeze all Palestinian growth and development in Area C. While Palestinians continue to live in many parts of Area C and to practice agriculture there, Israel’s military government in the West Bank has specifically prohibited them from planting trees (particularly in the Jordan Valley), and has restricted any and all Palestinian construction and development activities. Palestinian applications for building permits are almost never granted, and there has been no urban or regional planning, except when it comes to Israeli settlements and their “regional councils,” whose area of control has steadily expanded.

Military Designations

One way that Israel works to clear Palestinians off of their land in Area C is to declare swathes of the West Bank as Israeli military zones, thus precluding Palestinian presence in these areas. One recent example of this practice is found in the area of Masafer Yatta, a large area in the South Hebron Hills in the southern West Bank where roughly 1,150 Palestinians live in a dozen small villages. In the 1980s, the Israeli Army declared the entire area a military training and firing zone. The villagers filed suit over the matter in the Israeli courts in the year 2000, but their argument that their claim on the land predated that of the Israeli Army was ultimately rejected by the Israeli High Court of Justice on May 4, after a two-decades long legal battle. That decision paved the way for the Israeli Army to remove the Palestinian population from the area. Palestinians see this as a blatant act of ethnic cleansing, and have vehemently protested these actions. Meanwhile, the Israeli Army has moved aggressively to make the area unlivable by confiscating solar panels that were donated by the European Union, seizing water trucks and other vehicles, destroying structures, and prohibiting teachers and school children from going to school. In short, the Israeli Army is determined to make Masafer Yatta unlivable.

One way that Israel works to clear Palestinians off of their land in Area C is to declare swathes of the West Bank as Israeli military zones, thus precluding Palestinian presence in these areas. From a legal point of view, designating the area for military training entirely avoids the question of ownership

From a legal point of view, designating the area for military training entirely avoids the question of ownership. Military training is viewed as a security matter, and Israel’s High Court has made it clear that it will not interfere in the judgement of COGAT officials when it comes to military matters. In the view of the Israeli courts, the fact that Israeli settlers are present in the area and will almost certainly set up new settlements there is not relevant. And following the recent court ruling, the only remaining obstacle to Israeli settlement in the area is the physical presence of Palestinians. In order to force them to leave, the army is actively conducting live-fire exercises close to their homes. Not only does this development endanger these residents’ lives, it is also designed to slowly drive them from the area. This method, whereby Israel declares a given area a closed military zone on the grounds that it is necessary for security or training purposes, has already been frequently used to depopulate most of the Jordan Valley. And Israeli courts have repeatedly indicated that even private Palestinian land can be confiscated when there is a military or security justification. The precedent for this position came in a 1979 case regarding a proposed Israeli settlement called Elon Moreh that was to be founded on private Palestinian land, a case in which the Israeli High Court ruled that the settlers needed to be removed, but also stated that even the act of building Israeli civilian settlements on private Palestinian land is permissible if they serve a military or security purpose. Despite the fact that the court’s ruling staved off this one instance of land theft, it also provided the security justification for future appropriations of Palestinian land for the purpose of building Israeli settlements.

Israeli courts have repeatedly indicated that even private Palestinian land can be confiscated when there is a military or security justification

Farming Outposts

In the last five years or so, Israeli settlers have also started using a new technique to acquire more land in Area C: setting up farming outposts with extensive livestock operations. These outposts’ livestock graze across huge areas of land that does not belong to the settlers, and they chase out any Palestinian farmers or shepherds by force. The Amana settler organization, for example, has been a driving force behind the establishment of over 50 such farming outposts, which control some 240,000 dunams using this method, or about seven percent of the total land of Area C. The Israeli Army is fully aware of settlers’ use of this tactic, and as a rule does not interfere unless Palestinian farmers put up resistance, in which case the army moves in with force to protect the Israeli settlers and their livestock. Without exception, all of these farming outposts are illegal under both international and Israeli law, and their structures all lack construction permits. Occasionally, the Israeli Civil Administration will issue demolition orders for these illegal structures. However, it typically refrains from actually enforcing the demolition orders that it issues against Israeli settlers’ farming outposts, even though it rigorously monitors and demolishes any new Palestinian construction activity, including the installation of solar panels to provide electricity. And although the Civil Administration is nominally independent from Israeli settler activities and goals, its offices are typically located inside of Israeli settlements, where its employees often live. This, together with the fact that Israeli settler organizations actively report Palestinian construction activities that they deem “illegal” to the Civil Administration, makes clear that the settlers are firmly in control.

Without exception, all of these farming outposts are illegal under both international and Israeli law, and their structures all lack construction permits

While in theory the lands that these farming outposts use for grazing is designated as “state land,” in reality Palestinians often own this land, and use it for agriculture and animal husbandry—at least until they are forced out by settlers and their livestock. When Israeli settlers establish these farming outposts, they do not bother getting permission from the Civil Administration; nor do they investigate the actual ownership of the land. These outposts are therefore illegal, even under Israeli rules and regulations.

The new regulations to retroactively legalize these settler farming outposts grant these outposts a semblance of legitimacy, allowing them to continue their displacement of Palestinians uninterrupted

Recently, however, the Civil Administration announced that it is promulgating new regulations to govern and retroactively legalize these settler farming outposts. Work on these new regulations started in 2020 when the Civil Administration stopped a previously planned evacuation of an illegal farming outpost called Mitzpe Yehuda. These regulations became something of a necessity for Israeli officials since there are now dozens of such outposts, all of which have been operating without official approval. The new regulations therefore grant these outposts a semblance of legitimacy, allowing them to continue their displacement of Palestinians uninterrupted. And although the regulations, which directly cover the use of land for grazing, in theory apply to both Palestinians and Israeli settlers, the actual application of the law is almost guaranteed to be biased against Palestinians, especially given Israel’s ongoing practice of apartheid against them. In the future, Israeli settlers’ farms will be legalized, while Palestinians’ livestock will be further restricted from grazing—even on their own privately held land—for lack of permits required under the new regulations, permits that are certain to be denied to them by the Israeli military administration that controls the occupied West Bank.

A Single Apartheid State

Israel’s process of achieving hegemony over Palestine remains the same regardless of where it takes place: working to control the land, one dunam and one displaced Palestinian at a time.

Israel’s continued designation of Palestinian lands in the West Bank as exclusive military zones and its recent regulatory measures supporting illegal farming outposts together confirm that the idea of a two-state solution has disappeared entirely from the Israeli calculus. Given Israel’s utter refusal to consider the transfer of land to the PA that was outlined in the Oslo Accords, and its ongoing efforts to find new ways to force Palestinians off of their land and to confiscate it for the use of both the military and Israeli settler groups, it seems that the future will only bring a single state—de facto or de jure—with Israeli sovereignty over the entirety of historic Palestine, and with an apartheid regime continuing to govern the lives of Palestinians. Within that regime, more laws and regulations will be enacted to achieve Israeli control over more and more land, with Palestinians increasingly confined within ever-shrinking areas of dense population, as they already are in the Gaza Strip and Area A of the West Bank. Meanwhile, Israeli settlers, who already enjoy the full rights of Israeli citizenship wherever they reside, will gain more and more control over the few “disputed areas” that are left in the West Bank. Although there are multiple areas in which Palestinians today are fighting to remain on their land, Israel’s process of achieving hegemony over Palestine remains the same regardless of where it takes place: working to control the land, one dunam and one displaced Palestinian at a time.

Arab Center Washington DC

FEBRUARY 06, 2021

Jonathan Kuttab

Also printed in The New Arab

For many years, based on their own experience in 1948 and 1967, Palestinians have accused Israel of being an apartheid state, while Israel’s defenders have vehemently denied the charge. The discussion usually centers on the occupied Palestinian territories, particularly the West Bank and  East Jerusalem, where over 642,000 Israeli settlers live in settlements under a clearly separate and different set of laws and regulations. The discussion is also often bogged down in comparisons with the former South African apartheid regime, with Israel exhibiting similarities and differences between its own situation and the one that prevailed in South Africa until the early 1990s. Former US President Jimmy Carter created a huge stir in 2006 when he published his book, Palestine: Peace Not Apartheid, and warned that Israel was in danger of becoming an apartheid state if it does not relinquish the occupied territories and allow for the establishment of a Palestinian state in the West Bank and Gaza in accordance with the two-state formula.

The Elements and Context of Apartheid

The discussion was revived recently by a number of factors, including the publication of a report by Israel’s largest human rights organization, B’Tselem. It claims that Israel constitutes a system of apartheid and that the practice is no longer just a feature of the occupied territories but extends to the entire area that lies between the Jordan River and the Mediterranean Sea. This view was bolstered by the wave of discriminatory legislation within the pre-1967 borders that culminated in the Nation State Law of 2018, which confirmed as a Basic Law that Israel is a Jewish state and that only Jews are entitled to self-determination in that state.

Another reason for the renewed interest in this issue is the growing realization that the prospects of a two-state solution for the Palestinian-Israeli conflict are disappearing, that Israeli control over all of historical Palestine has become a reality, and that Israel’s occupation of lands it acquired in 1967 is no longer a temporary situation. Israel’s much-touted success in providing COVID-19 vaccinations to its population, while refusing to give vaccines to most Palestinians under its control, also gave rise to accusations of a “vaccine apartheid.” The Israeli government recently decided to provide Palestinians in East Jerusalem with 5,000 vaccine doses, but none were offered to others in the occupied West Bank and the Gaza Strip.

The truth is that for over half a century, Israel has acted as the real sovereign with full power, authority, and control over all of historical Palestine. Its army controls the whole area as well as its borders, coasts, air space, water resources, and currency. The Israeli Knesset legislates for the entire area and creates, at will, the systems governing it as well. The fact that under Israel’s control, different regimes are applied to the Palestinians living in different parts of the area, and that some authority and responsibility is delegated to the Palestinian Authority (PA) in portions of the occupied West Bank, does not change this reality. This was the case with the creation of Bantustans in South Africa; they did not exempt the country from responsibility for the residents of those areas. They also did not allow the South African regime to claim that it is a democracy within its white areas and that the self-governing Bantustans are “independent” within their prescribed borders.

The question of whether Israel and its leaders are guilty of racial or ethnic segregation should not simply be reduced to a discussion point for political propaganda or public relations. Apartheid today is an international crime for which individual leaders and politicians can be tried before the International Criminal Court (ICC). The Rome Statute, which created the ICC, specifically lists apartheid as a crime and as one of the bases for its jurisdiction. Apartheid is also listed as a “grave breach” in the Geneva Conventions governing people and areas under military occupation. The fact that Israel refuses to accept the applicability of the Geneva Conventions, and often claims that the areas are not truly “occupied” but belong to it under a variety of arguments, only strengthens the urgency to examine Israel’s behavior with respect to the entire area of historical Palestine.

The elements of the crime of apartheid are now a matter of law. A comparison with South Africa may be unfair, and sometimes even to South Africa, as certain elements of the situation in Israel/Palestine are, in fact, even worse in their application. It is therefore important to examine the facts to see if the elements of the crime of apartheid do exist and are found in the state of Israel today.

Apartheid in International Law

The International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the UN General Assembly on November 30, 1973, defines the crime of racial separation. Article II states:

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 establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

The article goes on to describe a variety of ways in which apartheid is practiced and the inhumane acts that are prohibited, including legislation concerning human rights and freedoms, education, residency and free movement rights, marriage, property, and many other day-to-day practices of groups and communities.

In essence, a careful analysis of the convention shows that there are three elements necessary to find a crime of apartheid: a regime of separation or segregation on the basis of race, creed, or ethnicity; the use of a legal system and legislative measures for enforcement of such separation; and the commission of inhumane acts and violations of human rights and denial of freedoms and forced ghettoization.

Apartheid in Palestinian Areas

In applying these criteria, it is important to take into consideration that the entire area of historical Palestine, between the Mediterranean Sea and the Jordan River, is currently fully controlled by one group, the Israeli government and its military. What often confuses the issue is that Israel has created a number of different regimes of control over Palestinians in that area, with some policies obtaining different terms than others.

Palestinians have been divided into four groups. The first are Palestinian citizens of Israel, who currently have greater freedom of movement (than other groups of Palestinians) and are accorded the right to vote in Israeli Knesset elections, although they experience many inequalities and restrictions in public life. The second group are those Palestinians who reside in East Jerusalem but are not citizens. The third are residents of the rest of the occupied West Bank, and the fourth are the residents of the Gaza Strip. An additional fifth category consists of Palestinian refugees who are simply barred from returning to the country altogether. Each of these groups experiences apartheid differently, but the overall scheme is governed by the same ideology and policy of privileging Jews over non-Jews.

The first group (Palestinian citizens of Israel) were kept under military rule between 1948 and 1966 with their physical mobility and mevement severely restricted and the development of their areas and towns stymied. Laws and zoning regulations were specifically passed with the announced goal of “Judaizing” the Galilee, where most of them live. In the Negev, many Palestinian villages and towns are still not “recognized” and are denied basic services and opportunities to develop normally through zoning regulations, and some of these villages are routinely and repeatedly demolished by the Israeli authorities. The Knesset openly debated whether certain areas in the northeast should be transferred to the Palestinian Authority in a peace deal with the Palestinians, thus unilaterally changing the status of the inhabitants of these areas and depriving them of voting in Knesset elections. Meanwhile, their representatives are deliberately kept out of the policy-making process. An unspoken rule prohibits Palestinian parties from joining any government coalition (it is noteworthy that all governments in Israel, since its creation, have been coalition governments) while any Palestinian party running for elections could be declared illegal if it does not accept the Zionist concept that Israel is a Jewish state. Many laws, capped by the (now constitutional) Nation State Law, confirm this discrimination and enshrine the privileges of Jews over Palestinians, even if the latter are Israeli citizens.

The second group, the East Jerusalemites, has been designated as “residents, but not citizens,” with possible movement to the status of Israeli Palestinian citizens when Israel formally annexed East Jerusalem on July 30, 1980. It is important to note that Jews living in Jerusalem are treated as full citizens, but Palestinians have a unique hybrid status and have been denied the same rights.

The third group in the occupied West Bank is further subdivided geographically into Areas A, B, and C and lives under military occupation. Certain powers and responsibilities in the most densely populated Area A (around 18 percent of the West Bank) have been delegated to the Palestinian Authority, based on the Oslo Accords of the 1990s, as an interim measure lasting five years. However, this case has persisted for a quarter century and shows no prospect of ending soon. Jews—whether citizens of Israel or not—living in the Jewish settlements in Area C, enjoy a totally separate system of laws, courts, police, health, educational and social services, and even a separate road system. Non-Jews cannot enter the areas of the Jewish gated communities without a permit issued by the relevant authorities.

People in Gaza live in what has been called an open-air prison, with Israel controlling air space, the coast, all points of entry and exit, and even the population registry. While, for security reasons, Israel vacated its Jewish settlers from Gaza in 2005, it continues to hold effective power in the area.

Enforcing Apartheid through Legislation

What is significant about these divisions is that it was Israel itself, through its own legislature and army, that has determined the separate regimes and controls what happens in them. The regimes are stipulated in a formal written legislative scheme and are intended to further the control of one group, Israeli Jews, over another—the Palestinian Arab population. The latter group is restricted in its location of residence as well as in its movement and travel, and even between the different areas (Israel, West Bank, Jerusalem, Gaza, and abroad). Numerous checkpoints are placed at intersections between the different areas to ensure the constant separation.

A 29-foot wall that in Israel is actually called “the separation wall” (geder hafrada) has been erected with carefully guarded gates to restrict movement and access. This wall has already been judged illegal by a near unanimous decision of the International Court of Justice in 2004. In addition, Israel has placed signs in Arabic, Hebrew, and English at the entrances of all Palestinian towns in Area A of the occupied West Bank alerting Israelis that it is illegal for them to enter the areas under the control of the Palestinian Authority. While such segregation is not used to prevent entry of Palestinians into these areas, it effectively prevents Jewish Israelis from doing so. The security coordination between Israel and the PA is often utilized to track down such entrances by Jews into Palestinian cities, purportedly for their own protection.

Access to the entire Gaza Strip is severely controlled for both goods and persons; in addition, through agreements with Egypt with respect to the southern border, a full siege that has been in place for the last 14 years has been created. Very limited access is allowed for staff of humanitarian organizations to enter Gaza from Israel; at the same time, Palestinian staff members who hold Israeli passports or East Jerusalem identity cards are almost never allowed in.

The point is that hafrada(Hebrew for separation) is an openly stated policy of the Israeli government and, through different methods of control and segregation, it is intended to further the control over one group by another. Separation, i.e., separate and unequal, is the essential first element in the crime of apartheid.

Legislation to enforce segregation based on race, ethnicity, and religion is the second element and is not haphazard or spontaneous. There are laws, regulations, and military orders that are enforced by Israeli civil and military courts. In Israel, this is legislated in the Knesset both through discriminatory laws that favor Jews as well as by reliance on the old British Emergency Regulations, which are selectively and disproportionately used against Palestinians. Such legislation is also reflected in discriminatory zoning schemes that prevent building and land use by Palestinians except in designated heavily populated areas, at the risk of continuing demolition orders that have become a daily feature of Palestinian life under Israeli control.

There is extensive documentation by Israeli, Palestinian, and international human rights organizations as to the practices used to impose and enforce the segregation regime, which constitute the third element of the crime. These practices include torture and mistreatment of prisoners, administrative detention, demolition of houses (used both as a punitive measure and to prohibit development and residency in restricted areas), restrictions on residency and travel and on the movement of goods and people, and collective punishment. Israel also implements identity card systems and distinctive car license plates to assist the authorities in enforcing the policies of separation. In Israel itself, and in East Jerusalem, the British Emergency Defense Regulations are used as the legal basis for such practices, which are applied by the police and the border patrol. In the other areas, military orders provide the legal basis and are carried out by the army under the Israeli Ministry of Defense.

Such violations of human rights and basic freedoms, while illegal under international law, do not in and of themselves necessarily constitute the crime of apartheid. It is when they are used as a means of controlling and dominating one group (the Palestinians) by another (the Israeli state) that they fulfill the definition of crime of apartheid.

It is therefore abundantly clear that Israel today is an apartheid state fulfilling all the elements of that crime under international law. The temporary and emergency nature of its practices can no longer be used as an excuse. The legislative process that enshrines these policies is clearly of a permanent nature, and it is time for the International Court of Justice to investigate this matter and bring those responsible to justice.

Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. He is a resident of East Jerusalem and a partner of Kuttab, Khoury, and Hanna Law Firm there. He is the co-founder of Al-Haq, the first international human rights legal organization in Palestine, and of the Palestine Center for the Study of Nonviolence.

“Israel-Palestine, we are interrelated; we are one entity. To say there are two states is silly; there’s only one state between the river and the sea. And that is the state of Israel. It controls everything, and it treats Arabs and Jews differently,” said Jonathan Kuttab, a Palestinian-American attorney specialising in international law.

Kuttab said Israel’s obligation to vaccinate Palestinians is clear under international law. “The matter is not open to interpretation.”

Not only does the Geneva Convention dictate that the occupying power is responsible for the health and well-being of the occupied, the treaty – which is the bedrock of international law – specifically spells out an obligation to prevent the spread of pandemics.

“To the fullest extent of the means available to it, the occupying power has the duty of ensuring and maintaining, with the co-operation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory,” the convention says, “with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.”

Oslo Accords

Moreover, Kuttab details three major flaws in using the Oslo Accords as a justification for Israel’s vaccination policies:

• International law trumps Oslo, and Israel’s obligations as the occupying power cannot be signed away by the Palestinian Authority
• Israel is in constant violation of the Oslo Accords
• The infrastructure needed to import, distribute and administer the vaccine in the Palestinian territory is under stringent Israeli control

“For Israel, Oslo is like an alibi,” Kuttab said. “To some degree, the Palestinian Authority allows them to do that because it is desperate to pretend it is a state; it’s not a state. The PA wants to pretend that they have authority; they don’t have authority. They only have authority to the extent that allows them to have it.”

“It’s meaningless. Israel is still the occupying power, and it’s still responsible,” Kuttab told MEE. “It’s like you can’t just say this labourer agreed to accept less than minimum wage and agreed to have his children work despite the laws against child labour. It’s illegal.”

Kuttab said Israel uses Oslo to escape its responsibilities as an occupying power without living up to its own commitments in the accords.

“Equally important is that in order to take care of the health needs of your people, you need to have international agreements with the World Health Organization; you need to have access to orders through which they can import and export; you need to be able to build facilities and all these things that Palestinians can’t do,” Kuttab said.

Discriminatory systems

Kuttab said Israel is risking its own citizens by refusing to vaccinate Palestinians. “If you allow half the population under your control – millions and millions of people – to go around unvaccinated, it’s going to affect you, sooner or later.”