How Israel’s Legal System Sustains Apartheid in Palestine
Palestinian human rights lawyer Munir Nuseibah explains what this summer’s International Court of Justice ruling against Israel over its occupation of Palestine means for the future of Palestinians.
Israeli soldiers monitor West Bank Palestinian residents with conditional permits who were crossing into a checkpoint to enter Jerusalem to pray at the Al-Aqsa Mosque for Ramadan, in Qalandia in the occupied West Bank, on Friday, March 29, 2024. (Marcus Yam / Los Angeles Times)
- Interview by
- Elias Feroz
On July 19, the International Court of Justice (ICJ) issued a nonbinding advisory opinion stating that Israel’s occupation of the Gaza Strip, West Bank, and East Jerusalem is illegal, and calling for it to end “as rapidly as possible.” After concluding that the situation facing Palestinians “constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin,” the court ordered Israel to cease all settlement building activity, and instructed member states “not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory” — a phrase many have interpreted as meaning an arms embargo.
The ruling, which stems from a December 2022 request by the United Nations General Assembly for an advisory opinion on the legal consequences of Israel’s ongoing occupation, was quickly rejected by the Israeli foreign ministry as “fundamentally wrong” and “blatantly one-sided.” Yet it confirms what Palestinian activists and their allies have argued for decades and could make it harder for Israel’s allies like Germany and the United States to continue to feign ignorance about the human rights situation in Palestine. To better understand what the ICJ ruling could mean for Palestinians, Jacobin spoke with the Palestinian human rights lawyer Munir Nuseibah of Al-Quds University in Jerusalem.
The ICJ ruling states that Israel is obligated to immediately halt all new settlement activities and repeal any legislation or measures that create or maintain the unlawful situation, including those that discriminate against the Palestinian people in the occupied Palestinian territories, as well as any actions intended to alter the demographic composition of any part of the territory. Additionally, Israel must provide full reparations for the damage caused to all affected natural or legal persons.
Nevertheless, the ruling remains a nonbinding “advisory opinion.” How significant is it nonetheless?
The ruling is very significant for several reasons. First, it confirms something that was already obvious but has been denied by several parties, including Israel and other powerful countries: the occupation as such is illegal and must end as soon as possible, regardless of negotiations. This is important because, since the Oslo peace process began, Palestinians have been pressured to believe that any end of the occupation or any gains in their freedom must come through negotiations with Israel.
This belief has influenced not only Israeli policy — which has not been serious about negotiations — but also international policy. For example, the legality of Israel’s annexation of East Jerusalem was treated as an open question pending final status negotiations. The ICJ advisory opinion has shifted this dynamic, making it clear to the international community that it has an obligation not only to refrain from recognizing the illegal consequences of the Israeli occupation but also to actively work to end it.
The second point concerns apartheid. Although the International Court of Justice was not directly asked about apartheid but rather about racial discrimination, its examination led to a finding that Israel is indeed violating its duty to avoid racial segregation and apartheid. The advisory opinion concluded that Israel practices racial segregation and apartheid, at least in the occupied Palestinian territories.
In the past four years, numerous reports from Palestinian, Israeli, and international organizations have claimed that Israel is practicing apartheid. However, many countries have been reluctant to officially acknowledge this reality. In my work in international advocacy, I have frequently encountered this reluctance among diplomats, with some suggesting to wait for a statement from the International Court of Justice. Now that the highest international court has confirmed the existence of apartheid, we have a persuasive argument for states to reconsider their relationships with Israel based on this finding.
This is not the first time that Israel’s conduct has been the subject of international legal deliberation. Can you explain, generally speaking, what the legal status of Israel’s occupation is? How do Israeli courts justify it, for example, and what have other international bodies determined?
There is a significant divergence between the perspectives of international bodies and the Israeli legal system. The Israeli legal framework does not recognize the occupation itself as illegal. Similarly, the Israeli legal system does not consider the annexation of territories such as Jerusalem to be unlawful.
Instead, Israeli courts treat Jerusalem as an integral part of Israel and apply Israeli law within the city. Additionally, Israeli courts have permitted the establishment of settlements and have recognized Israeli settlers in the West Bank as part of the local population. Consequently, the Israeli legal system plays a crucial role in sustaining the apartheid regime, and it cannot be disentangled from the latter.
The Israeli legal system occasionally references international law, but often in a selective manner that aligns with Israeli interests and objectives. Therefore, it is not an effective venue for challenging the apartheid regime. Palestinians frequently resort to Israeli courts to seek redress, such as delaying or halting home demolitions, relocating barriers to access their lands, or obtaining permits for entry into Jerusalem. While this is the only available legal recourse within historical Palestine, it serves primarily to navigate within the constraints of the existing regime rather than to challenge its foundational aspects.
In contrast, the international justice system operates under different standards, as demonstrated by the International Court of Justice’s advisory opinion. The occupation was deemed illegal due to Israeli policies of annexation, expansion, forced displacement, and settlement construction. The appropriate remedy for this situation is the cessation of occupation and the dismantling of the apartheid regime. Achieving this outcome necessitates substantial international pressure. Although current geopolitical dynamics, influenced by US and European policies, may delay this process — echoing past support for colonial regimes like apartheid South Africa — there remains potential for change in the future. Enforcement can only begin with the Global South initiating the process, after which other regions can join in.
Speaking more broadly, how significant is international law or the concept of human rights for the situation in Israel/Palestine? After all, the occupation has gone on for nearly sixty years at this point, despite the UN General Assembly condemning it multiple times along with the vast majority of the world’s states.
Herein lies the challenge: the International Court of Justice has rendered its findings and applied the law to the facts, but of course it does not have an army or police to enforce its decisions. Nonetheless, this advisory opinion carries significant weight, particularly regarding the obligations it imposes on states. The primary way for states to act upon this opinion is through policy enforcement, including the imposition of sanctions.
The critical question now is whether the General Assembly, which requested the court’s opinion, will take action to implement sanctions or if we will witness a continuation of the inertia observed over the past decades. While the General Assembly has long supported Palestinian rights, including the right to self-determination, this support has not always translated into concrete action. The Security Council, influenced by countries such as the United States, Britain, and France, is likely to continue its refusal to impose sanctions on Israel.
Therefore, it falls to the General Assembly to pursue actions beyond the Security Council’s purview. This includes advocating for sanctions and monitoring state behaviors to ensure compliance — whether they are imposing sanctions, providing weapons, or engaging in trade that supports the apartheid regime.
This approach is not unprecedented. During the apartheid era in South Africa, a special committee known as the Apartheid Committee was established to report on apartheid policies and observe which countries were implementing sanctions. Initially, support for ending apartheid came predominantly from the Global South, but over time, the Global North, including Europe and the United States, was compelled to halt its support. By the late 1980s and early ’90s, this shift in policy contributed to the regime’s downfall and dismantling.
In 2004, the ICJ also issued an advisory opinion, which ruled that the construction of the separation wall, which has been erected in Jerusalem and other parts of the Palestinian territories, is illegal. Yet the wall still exists, and there don’t seem to have been any consequences. Do you expect any political consequences from the current rule, or do these decisions from the ICJ only have a symbolic meaning?
The impact of the advisory opinion ultimately hinges on how the international community responds. This opinion, reflecting binding international law, is significant in its finding that the Israeli occupation is illegal and that an apartheid regime exists. It provides a crucial basis for enforcing sanctions rather than merely condemning the occupation and related actions.
If the international community continues its pattern of only issuing condemnations without concrete action, the advisory opinion will become meaningless. However, if the international community adopts a more proactive stance and imposes sanctions on Israel, the opinion will prove to be highly valuable.
The upcoming decisions by the UN General Assembly will be a critical test. In September, world leaders will deliver their speeches, leading to discussions and likely resolutions, with adoption expected in December. The next few months will reveal whether there will be substantive action or merely empty rhetoric.
Until now, the German government has refrained from using the term “apartheid” when referring to Israel’s policies toward the Palestinians. As a human rights lawyer, do you think it is important that we use the term to describe the situation as such? And do you think the court’s ruling could have an impact on both German and international policy?
I believe it is appropriate to describe the situation as apartheid. The term provides a crucial framework for understanding and addressing the Israeli presence in the occupied Palestinian territories.
Unfortunately, Germany’s record has been disappointing, having supported apartheid, settlement expansion, and colonization in Palestine over the decades. This includes its support for the ongoing violence in Gaza. The situation suggests a troubling pattern, and it is uncertain whether significant changes in German policy will occur soon.
The ongoing case between Nicaragua and Germany could potentially influence the International Court of Justice to intervene. However, substantial internal reform in Germany is necessary. While I may not have the expertise to prescribe specific changes, it is evident that Germany faces significant challenges.
Germany’s approach to freedom of speech has been problematic. For instance, during the recent violence in Gaza, Palestinians such as Dr Ghassan Abu-Sittah, who wished to speak in Germany, were prevented from entering. Discussions about Palestinian human rights are often mischaracterized as antisemitism, reflecting a concerning misunderstanding in Germany about the difference between antisemitism and advocacy for Palestinian rights. This situation raises serious questions about the state of democracy, freedom of speech, and the broader principles of equality and justice in Germany.
Unlike the recent advisory opinion issued by the ICJ in July, a ruling by the International Court of Justice in South Africa’s case against Israel would be binding should the ICJ conclude that the situation in Gaza constitutes genocide. What specific consequences would this have, particularly for countries like Germany and the United States, which continue to provide military support to Israel?
The International Court of Justice has already indicated that it is plausible Israel is committing genocide. To put it more simply, based on the evidence presented and the counterevidence provided by Israel, it appears that genocide is indeed occurring. This is what “plausible” means in this context — it suggests that genocide is highly probable, not just a risk or a possibility. This is why the court decided to issue provisional measures.
The provisional measures were based on the compelling evidence that genocide is likely taking place. Consequently, there is an urgent need to cease all arms supplies to Israel immediately.
In the Nicaragua versus Germany case, the court did not issue provisional measures because Nicaragua was unable to establish a direct link between Germany’s support for Israel and Israel’s actions. This gap in evidence prevented action in that instance. However, if Nicaragua continues with the case, Germany could ultimately be found in violation of international law.
But the International Criminal Court has not yet issued its final judgment in the case between South Africa and Israel.
Based on the evidence and analysis I have reviewed, it seems very unlikely that the court will conclude that the situation in Gaza does not amount to genocide.
As the destruction of Gaza by Israeli forces continues, the world’s attention is largely and understandably on human rights abuses committed by Israel. But what about Hamas’s track record? What kind of treatment do civilians in Gaza face at the hands of Hamas?
Hamas has been responsible for a number of human rights violations against Palestinians during its rule of the Gaza Strip, including acts of torture and other crimes. This was years before the ongoing war.
Currently, however, it is difficult to assess how Hamas is treating the civilian population in Gaza. I believe they are facing immense difficulties ruling amid all the chaos and destruction they are surrounded by.
Reports of widespread human rights abuses in Israeli detention centers like Sde Teiman have received renewed attention in recent weeks. Is this kind of treatment of Palestinian prisoners on the rise?
I myself am not a practicing lawyer, but I work with a lot of them, and they have told me terrible things. The crimes occurring in Israeli prisons are, in fact, beyond description, and they are on the rise. This applies to prisoners held in both the Gaza Strip and the West Bank, including Jerusalem.
To what extent can Palestinians expect fair treatment from Israeli judges? In the German debate, Israel is often presented as being less than perfect, but at least a functioning democracy with a legal system that prosecutes soldiers who mistreat Palestinians.
No, that’s not a correct assumption. The Israeli court system does not prosecute war crimes or crimes against humanity. If it did, Israel would not have developed such a deeply entrenched apartheid regime, nor would it have been able to continuously build settlements and displace Palestinians from 1948 to the present. This narrative is designed to project an image of a functioning judicial system that upholds justice, but in reality, while the court system operates, it fails to deliver true justice for Palestinians.
What about Palestinians who live within the 1948 borders and have Israeli citizenship?
Palestinians with Israeli citizenship certainly have more rights compared to Palestinians in the territories Israel has occupied since 1967. However, they are not equal to Israeli Jews. Israel defines its citizens not only as individuals who carry its citizenship but also according to their ethnic background. Each Israeli person has an ethnicity in addition to citizenship, such as Arab, Jewish, Armenian, and so on. Israeli law and the regime discriminate against Palestinian citizens of Israel [who are regarded as “Arab Israelis”] in many ways.
Whenever this terrible war ends, the search for justice for victims on both sides will begin. Can Israeli or Palestinian courts be trusted as neutral arbiters? Or would some kind of international tribunal be more appropriate?
Israeli courts cannot be relied upon for impartial justice. As I explained, they are unfortunately an integral part of the apartheid regime, supporting and reinforcing its policies. Given this, Palestinian courts lack the authority to prosecute Israelis due to the constraints imposed by the occupation and the power dynamics at play. Consequently, only international tribunals and courts are in a position to address these issues effectively.