CRIMINAL “APARTHEID” IN THE OCCUPIED PALESTINIAN TERRITORY?: A CALL FOR A MORE NUANCED APPROACH FROM THE PERSPECTIVE OF INTERNATIONAL CRIMINAL LAW
Abstract:
This is a legal doctrinal inquiry into the claim that Israel’s policies and practices in the Occupied Palestinian Territory (OPT) constitute apartheid. Its purpose is to provide a more nuanced analysis which more clearly distinguishes between legal/doctrinal and political/policy arguments. While the popular, non-legal use of the apartheid claim regarding the OPT (and beyond) has dramatically increased in the last years, the legal doctrinal side of the issue, especially regarding the elements of the apartheid crime, remains underexplored. The International Court of Justice (ICJ) has left the issue open in its Israel/Palestine Advisory Opinion of July 19, 2024 (only finding a violation of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination). This inquiry intends to close this gap. The importance of such an objective legal analysis has even become more obvious with the Hamas’ attack on Israel on October 7, 2023 and the ensuing armed conflict in Gaza. Yet, this inquiry is limited in that it only refers to the situation in the OPT and focuses on apartheid as an international crime and the ensuing individual criminal responsibility. After some preliminary and principled considerations on the status of apartheid under international (criminal) law, its substantive and geographical scope, its specific wrong, and the relationship between the relevant treaty instruments (Part I), the second and main part of the paper will offer a detailed analysis of the elements of the crime (Part II). Taking Article 7(2)(h) of the Rome Statute of the International Criminal Court (ICC Statute, ICCS) as the applicable crime definition, the following three elements will be examined: (i) “inhumane acts;” (ii) “institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups;” and (iii) the specific “intention of maintaining” the said regime. Applying these elements to the situation in the OPT, it will be shown that, while the first element is quite straightforward, the second element raises some tricky interpretative problems (especially the “racial group” part), and the third element is arguably the most difficult to demonstrate. Ultimately, criminal responsibility for apartheid cannot be established in the abstract but depends on the concrete circumstances of the individual case and the available evidence, with the specific apartheid intent to be inferred from context and conduct as the only reasonable inference.
Recommended Citation: Kai Ambos, Criminal "Apartheid" in the Occupied Palestinian Territory?: A Call for a More Nuanced Approach from the Perspective of International Criminal Law, 47 Fordham Int'l L.J. 485 (2024).