Israel's two rules of law

Roy Isacowitz writes on a revealing recent vote in the Knesset

A vote in Israel’s parliament, the Knesset, on Monday has thrown unexpected light on the ongoing debate – regarded in Israel as an anti-Semitic calumny – over whether Israel should be regarded as a state which practises apartheid.

At stake on Monday was a bill to extend regulations applying Israeli law to the country’s citizens living in the occupied West Bank. The regulations were originally enacted in 1967, following Israel’s occupation of the Palestinian territory during the so-called Six Day War, and have been renewed every five years ever since.

Until this week, renewal had always been routine and rarely covered by the media. Irrespective of the party in power, there was always a large majority. It’s a fair assumption that few Israelis were even aware of the clockwork renewal of the regulations, which effectively create two legal systems in the West Bank, one for Israelis and one for the rest (primarily stateless Palestinians).

Monday’s vote, which thwarted the government’s bid to renew the regulations, was a political circus. The right-wing opposition that defeated the bill – led by former prime minister Benjamin Netanyahu – has always supported renewal, while several of the center-left parties in the government coalition that voted for it have traditionally been opposed.

Only three of the 120 Knesset members defied party discipline and voted their consciences. The coalition, an unruly pastiche of parties and interests, lost the vote when two of its Palestinian-Arab members broke ranks and voted with the opposition, while a third – a right-winger from Prime Minister Naftali Bennett’s party – absented herself from the plenum.

The coalition has until the end of June to call, and win, another vote. Failing that, it is likely to call new elections. But the impact of Monday’s shenanigans is likely to be deeper and longer lasting.

The opposition’s attempt to topple the government by voting against its own interests “has sabotaged the automatic legal mechanism that maintains apartheid in the West Bank – a mechanism that has operated for years far from the public’s eye – and thereby essentially revealed the fact of its existence,” Haaretz newspaper wrote in an editorial after the vote.

“The public has learned the legal truth that makes the settlement enterprise possible – the existence of two separate legal systems in the same territory, one for Israelis (that is, Jews) and one for Palestinians, as well as two separate justice systems.

“There’s a military justice system for subjects without citizenship who live under a military dictatorship, and there’s a second system for privileged Jews with Israeli citizenship, who live under Israeli law in a territory that’s not under Israeli sovereignty.”

Contemporary equivalences between Israel and apartheid are based on the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid (incorporated into the Rome Statute in 1998), which defines the new crime of apartheid as “… inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination.”

In other words, apartheid is not just racism but policies which entrench discrimination based on race. Article 2 of the convention specifies that the crime of apartheid applies to, “[a]ny legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country.”

That is what was revealed in the Knesset on Monday: the legal mechanism, automatic (until this week) and barely known publicly, which creates parallel legal systems based on ethnicity and discriminates between people occupying the same territory.

It goes without saying that the “Apartheid Israel” label is vociferously rejected by Israel and Jewish community leaders in the diaspora. Moderates among them are prepared to concede that while Israeli military rule in the West Bank might be debatably discriminatory, Israel proper has a Palestinian minority with full civil rights, disproving the apartheid analogy.

That argument is tendentious. While the legal position of Palestinian citizens of Israel is no different from that of Jews, in practice they do not enjoy the same group rights (Israel is legally defined as a “Jewish state”), the same budgets, the same building rights and zoning laws and so on.

But, beyond that, the government of Israel proper is also the government controlling the West Bank. The best analogy is with the apartheid-era Bantustans, which were superficially independent but in fact the offspring of the apartheid regime in Pretoria. Choosing to implement a blatantly racist system in one part of the country and a different one elsewhere is a time-honoured feature of apartheid; it is certainly not an argument against the use of the term in the Israeli context.

It may well be, as opponents of the apartheid analogy argue, that the use of the word “apartheid” is an underhand way of tarring Israel’s name by associating it with one of the archetypes of evil. I would be surprised if that wasn’t the case.

But then Israel calls Palestinian freedom fighters “terrorists”, regardless of their actions or affiliations, and it calls those who oppose the occupation, Jews included, “anti-Semites.” A case of goose and gander, surely?