Apartheid, the Green Line, and the Need to Overcome Palestinian Fragmentation

Human Rights Watch’s recent report, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, adds to a growing body of literature that considers the relevance of apartheid to the plight of the Palestinian people. Building on early, foundational work by Palestinian and Jewish anti-Zionist scholars, the apartheid analysis allows for consideration of the root causes of injustices perpetrated against the Palestinian people as a whole.

In its report, Human Rights Watch made several significant contributions to the discourse on apartheid. First, it established an ‘intent by Israeli authorities to maintain systematic domination by Jewish Israelis over Palestinians’, comprising Palestinians on both sides of the Green Line (p.78) as well as in exile, whose right of return has been denied since 1948 (pp.48 and 203). Second, it recognised Israel’s construction of a superior ‘Jewish nationality’ status that is distinct from citizenship and ‘relegates Palestinians at birth to an inferior status by law’ (p.149). In this regard, the report also drew attention to the role of Zionist parastatal institutions, such as the Jewish National Fund (JNF), in controlling land for exclusive Jewish settlement, on either side of the Green Line (p. 54). Finally, the report acknowledges that fragmentation of the Palestinian people ‘furthers the goal of domination’ (p.8) and ‘weaken[s] resistance to Israeli rule’ (p.77).

Curiously, however, in relation to the policy of ‘strategic fragmentation’ (see ESCWA Report 2017, pp.37-38), Human Rights Watch only discusses ‘the separation policy’ within the occupied Palestinian territory, failing to mention the artificial division of Palestinians along the Green Line and the denial of the right of return of Palestinian refugees and exiles. These omissions are telling in that Human Rights Watch returns to this distinction drawn between the plight of Palestinians in the occupied Palestinian territory and that of Palestinians elsewhere in its legal analysis on the application of the crime of apartheid.

Despite finding an Israeli intent to dominate all Palestinians, constituting the first element of the crime of apartheid, Human Rights Watch concludes that the second and third elements, those of ‘systematic oppression’ and ‘inhuman(e) acts’, are only committed in the occupied Palestinian territory. Rather than ‘systematic oppression’, Human Rights Watch finds that Palestinians within the Green Line face ‘institutional discrimination’, which it states is ‘less severe than the oppression and persecution’ in the occupied Palestinian territory (p.146). And instead of ‘inhuman(e) acts’ within the meaning of Article II of the 1973 Apartheid Convention and Article 7(2)(h) of the Rome Statute, the report concludes that the treatment of Palestinian citizens and refugees abroad amounts to ‘other abuses of fundamental rights’ (pp.170-171), despite some of the same Israeli policies applying on either side of the Green Line.

For example, it is not clear why Human Rights Watch considered ‘the confiscation of hundreds of thousands of dunams of land in the West Bank from Palestinians’ as an ‘inhuman(e) act’ while it listed ‘refusing to allow Palestinians access to the millions of dunams of land that were confiscated from them’ within the Green Line as ‘other abuses’. Similarly, it is not apparent how ‘the effective freeze on family reunification’ as an ‘inhuman(e) act’ in the occupied Palestinian territory is different from ‘restricting legal residency in ways that block many Palestinian spouses and families from living together in Israel’, which is listed under ‘other abuses’ inside the Green Line.

The above examples show how the Green Line has come to represent an arbitrary divide that fails to account for the lived experiences of Palestinians subjected to Israeli oppression, which transcends this artificial geographic boundary. Critically, virtually all of Israel’s oppressive policies carried out in the occupied Palestinian territory today, particularly as concerns land confiscations and dispossession, were tested against Palestinian citizens within the Green Line during the period of Israeli military rule from 1948 until 1966. Similarly, Israel’s discriminatory laws put in place in the immediate aftermath of the Nakba (‘catastrophe’ of 1948) have been extended to the occupied Palestinian territory since 1967 through Israeli military orders.

The oppression of Palestinians within the Green Line is not merely historical, however. It remains very much ongoing: today’s reality is one where 93 per cent of the land within the Green Line is held by the state and JNF in perpetuity for ‘the Jewish people’. Palestinians with Israeli citizenship own only three per cent of the land inside the Green Line, tens of Palestinian villages remain ‘unrecognised’ in the Naqab, and no new Palestinian city has been built since the state’s establishment (Halabi 2010, p.33). As acknowledged by Human Rights Watch, ‘Israeli authorities seized several million dunams of land from Palestinians’ inside the Green Line between 1948 and 1966 (p.195)—a reality which remains ongoing so long as millions of Palestinian refugees and internally displaced persons are denied their right of return to their homes and villages of origin.

The 1973 Apartheid Convention considers, as ‘inhuman acts’ of apartheid, the denial to ‘members of a racial group… basic human rights and freedoms’, including ‘the right to leave and to return to their country’ as well as ‘the expropriation of landed property belonging to a racial group’ (Articles II(c) and II(d)). These inhuman acts are clearly applicable, by virtue of Israeli laws and policies to the Palestinian people as a whole, on both sides of the Green Line and in exile. At the same time, further inhuman acts are also relevant to the plight of Palestinian citizens. For example, the past two months have seen mass arrests carried out on either side of the Green Line to silence Palestinians during the latest uprising. Over 2,000 Palestinian citizens have been detained, including through the renewed use of indefinite administrative detention within the Green Line. Intended to prevent Palestinians from challenging the Israeli regime, these repressive measures may further constitute ‘arbitrary arrest and illegal imprisonment’ within the meaning of Article II(a)(iii) of the Apartheid Convention.

In addition, Palestinian citizens’ political representation within the Israeli legislative system is premised under the Basic Law: The Knesset 5718-1958 on acceptance of ‘Israel as a Jewish and democratic state’ (Article 7a.(a)(1)). This, as Human Rights Watch acknowledges, ‘formally block[s] Palestinians from challenging the laws that codify their subjugation’ (p.150). Citing Israel’s longstanding bans on effective Palestinian political organising and participation, John Quigley argued in 1991 already that Israel violates the prohibition on ‘Any legislative measures and other measures calculated to prevent a racial group… from participation in the political… life of the country’ under Article II(c) of the Apartheid Convention (Quigley 1991, pp.239-243). Overall, there is ample evidence that ongoing Israeli policies and practices within the Green Line amount to inhuman acts constitutive of the crime of apartheid, particularly when considered against the backdrop of the denial of individual and collective rights to the Palestinian people as a whole, notably their right to return and self-determination.

Fragmentation, including along the arbitrary Green Line, has prevented Palestinians from collectively challenging the Israeli regime and from seeking accountability for their ongoing subjugation. In December 2019, the UN Committee on the Elimination of Racial Discrimination (CERD) found that Israeli policies and practices on either side of the Green Line are inconsistent with Article 3 of ICERD, enshrining the prohibition on ‘racial segregation and apartheid’. This followed a detailed submission to CERD by Palestinian and regional human rights organisations, who concluded that Israel imposes the crime of apartheid over the Palestinian people as a whole.

Today, growing recognition of Israeli apartheid necessitates serious efforts to overcome the fragmentation of the Palestinian people both in discourse and in practice. Civil society organisations are campaigning for the reconstitution of UN anti-apartheid mechanisms as avenues through which to challenge Israeli apartheid over all Palestinians. This call has already been endorsed by Namibia and South Africa. Finally, the recently established ongoing international commission of inquiry into ‘root causes’ of systematic discrimination across historic Palestine offers an unprecedented way forward within the UN to begin to overcome the fragmentation of the Palestinian people. As such, it will require important engagement from civil society, scholars, and practitioners.