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Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

By Yaffa Zilbershats

I accept the authors’ premise in their article1 that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The gravity of the crime is demonstrated by its inclusion in the Rome Statute, which defines apartheid as inhumane acts ‘committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’.2 However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. I will expand on two of these errors – namely, the failure to differentiate between the norms governing occupied and sovereign territory, and the authors’ complete failure to address Israel’s policies in the context of an armed conflict characterized by the Palestinians’ use of terror. As I will show, once the authors’ errors are exposed and considered, it is clear that Israel’s actions cannot be considered a basis for the crime of apartheid.

Due to the brevity of this response, not every argument raised by the authors can be addressed, nor can I follow the outline of that article. Instead, I have chosen to focus on exposing the two fundamental errors of the authors and demonstrate how those errors have led to a misrepresentation and misanalysis which has brought about the wrong legal conclusion that Israel practises apartheid against the Palestinians in the territories.

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