February 25th marked the 31st anniversary of the Ibrahimi Mosque Massacre, where Baruch Goldstein, an American settler in Palestine and member of far-right Zionist group, Kach,[1] murdered 29 Palestinians and injured over 125 others.[2] This settler-colonial, racially motivated massacre resulted in Israeli authorities enacting policies rooted in the “principle of separation” between Jewish settlers and Palestinians in Al-Khalil.[3] Currently, the Israeli occupation maintains control over Al-Khalil,[4] and since 1997, forbids Palestinians from entering Jewish settler-only areas.[5] One such area is Shuhada Street. Once a direct pathway to the Ibrahimi Mosque and a bustling hub for Palestinian businesses, Shuhada Street is now empty, with homes forcibly abandoned. The area is surrounded by illegal Israeli settlements that violate the Fourth Geneva Convention’s prohibition of transferring an occupying power’s civilian population into the territory it occupies.[6] Israel restricts over 33,000 Palestinians’ freedom of movement to enforce settler-only areas for 800 Israeli settlers illegally residing in Al-Khalil.[7] Israeli occupation forces installed checkpoints to surveil and prohibit Palestinians from entering settler-only areas, while admitting entry to persons with non-Palestinian identification documents.[8]
Apartheid, a form of racial segregation, is a comprehensive governmental racial segregation policy.[9] Under the Rome Statute of the International Criminal Court (“Rome Statute”), apartheid is a crime against humanity.[10] The South Africa apartheid regime popularized legalized racial segregation, but these policies predate South Africa’s regime[11] and transcend borders,[12] as the United States enacted racial segregation policies[13] whose consequences are experienced by non-white people to this day.[14] Racialized and indigenous people subjugated by settler-colonial states present an existential threat to the legitimacy of nation-states created to represent a distinct group.[15] In the settler-colonial context, Israel’s apartheid policies are not unique. The subjugation of Palestinians, including Muslims, Christians, and Jews,[16] by the British Occupation,[17] Zionist settler militias,[18] and subsequently the state of Israel[19] is an outcome of establishing a state intended to only represent a distinct group.[20]
Following the Ibrahimi Mosque Massacre, Israeli Prime Minister and accused war criminal, Benjamin Netanyahu,[21] and Palestine Liberation Organization Chairman, Yasser Arafat, signed the Protocol Concerning the Redeployment in Hebron (“Hebron Protocol”) in 1997.[22] The Hebron Protocol divided Al-Khalil in two: eighty percent of the city, “H1,” is under Palestinian control, while the other twenty percent, “H2,” is under Israeli military control.[23] The Protocol’s goal is that “movement of people, goods, and vehicles within and in and out of the city will be smooth and normal, without obstacles or barriers.”[24] The Protocol restricted movement on Shuhada Street but specifically promised that movement would return within four months of the Protocol’s execution.[25] The Protocol has yet to meet its goals as Israel declined to renew the mandate of the parties agreed upon monitoring body, the “Temporary International Presence in Hebron,” in 2019.[26] Al-Khalil remains racially divided, Shuhada Street remains a non-Palestinian “military zone”,[27] and Palestinians living in the area must navigate humiliating and deadly[28] Israeli checkpoints.[29]
Considering the United Nation’s (“UN”) condemnation of colonialism and segregation practices, and alarmed by governmental apartheid policies,[30] the UN General Assembly (“GA”) adopted the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) in 1965.[31] Article 3 obliges state parties to “prevent, prohibit, and eradicate” practices of apartheid and racial segregation.[32] ICERD defines racial discrimination as “ . . . any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin.”[33] Israel ratified ICERD in 1979,[34] and Palestine, currently an observer state, ratified in 2014.[35] Though the International Convention on the Suppression and Punishment of the Crime of Apartheid could be applicable, the treaty is not binding on Israel, a non-state party.[36] The International Criminal Court has jurisdiction over Palestine and Israel regarding the crime of apartheid; the prior because it is a state party to the Rome Statute, the latter because it is committing a violation in the territory of a state party.[37]
ICERD’s treaty body frequently discusses racial discrimination in Palestine.[38] In a statement from 2023, the Committee on the Elimination of Racial Discrimination (“CERD”) addressed its concerns of Israel’s restrictions on Palestinians’ freedom of movement in the West Bank and the use of force by occupation soldiers and settlers.[39] Acting under its Early Warning and Urgent Action Procedure, CERD urged Israel in a 2024 decision to ensure that all Palestinians under its control in Gaza, the West Bank, and Israel enjoy their full rights, including freedom of movement, without discrimination.[40]
In 2019, Palestine brought an inter-State communication to CERD, Palestine v Israel, alleging ICERD violations including Article 3.[41] CERD found that there is prima facie evidence of racially discriminatory “generalized policy and practice” by Israel.[42] The evidence considered in CERD’s admissibility finding includes: Israel’s laws discriminating against Palestinians in the Occupied Palestinian Territories (“OPT”), continuing segregation between Jewish and non-Jewish communities, and reports that the Israeli judiciary handles cases of racial discrimination with varying standards based on the alleged perpetrator’s ethnic or national origin.[43] Palestine submitted that Israel must dismantle its illegal settlements as a pre-condition to terminate its “system of racial discrimination and apartheid” in OPT.[44] This submission reflects decades of resolutions calling for Israel to halt settlement construction and dismantle existing settlements.[45] Palestine also submits that Third States must not recognize this “illegal situation” as lawful, and cease rendering assistance maintaining racial segregation in OPT.[46] Precedent for this submission includes UN resolutions calling for the apartheid South African and Israeli governments to end their racially discriminatory regimes, and for Third States to enact arms embargos until the governments cease their racially discriminatory actions.[47] CERD published its report of the Conciliation Commission in Palestine v. Israel in August 2024.[48] Regarding Palestine’s Article 3 allegations, the Commission urged Israel to eradicate all segregation between Jewish and non-Jewish communities affecting Palestinians in Israel and the OPT.[49] It also recommends Israel amend its Nation-State Law stating “the right to national self-determination in the State of Israel is unique to the Jewish people.”[50]
Despite these recommendations to cease Israel’s apartheid practices, the Hebron Protocol remains in effect and is eerily reminiscent of the UN’s Partition Plan and current proposed solution for Palestine, advocating for racially based division of historic Palestine.[51] The UN Partition of Palestine into an Arab state and a Jewish state, which would concede Palestinian land to Zionist colonial efforts and require forcible transfer of Palestinians,[52] was rejected by the Arab Higher Committee, a Palestinian political organization during the British Mandate, stating it violated the UN Charter regarding Palestinians’ right to self-determination.[53] The racially based partition of Palestine, exemplified at a city-level through the Hebron Protocol, is the dominant “solution” offered by the UN regarding the colonial conflict in Palestine.[54] The “two-state solution” for Palestine’s settler-colonial conflict is markedly the only outside of Europe where a two-state partition receives international endorsement.[55]
Though states created based on ethnicity may not be an outright violation of international law, the racially based tactics to uphold the supremacy of a certain racial demographic rises to violations of ICERD. To comply with Article 3, Israel, the UN, and all Third States must shift from its colonial conflict-resolution model rooted in racial separatism, and move toward decolonization.[56] A two-state solution requires the creation of two racially based states despite historic Palestine’s population of Arabs and Jews under one state.[57] This solution requires indigenous Palestinians, many of whom are displaced refugees,[58] to concede their historic land and homes in historic Palestine,[59] violating their right to self-determination.[60] Comparatively, the UN and Third States did not recommend indigenous South Africans during the apartheid era to concede their historic land under a two-state solution to resolve governmental racial discrimination.[61] The GA instead called for negotiations to end apartheid and establish a non-racial democracy in 1989, which succeeded in the following years.[62]
The solution to Israeli apartheid in Palestine is not more racial segregation. To prevent, prohibit, and eradicate apartheid in Palestine in its decision for Palestine v Israel, the Commission should have denounced the racial separatism inherent in the UN’s proposed two-state solution. A just resolution for Palestinians undergoing apartheid in Al-Khalil, the OPT, and Israel, is to enjoy their right of return to historic Palestine, for Israel to cease its illegal occupation and racial discrimination, and for all peoples living in historic Palestine to enjoy equal rights within a singular state.
[1] Kach, Kahane Chai (Israel, extremists), Council on Foreign Relations (March 20, 2008, 8:00AM), https:// www.cfr.org/backgrounder/kach-kahane-chai-israel-extremists; G.A. Res. 3379, at 34 (Nov. 10, 1975) (determining Zionism is a form of racism and racial discrimination).
[2] Timeline of the occupation in Hebron, Mapping the Apartheid (last visited March 7, 2025, 9:46PM), https://www.hebronapartheid.org/index.php?page=timeline.
[3] The Humanitarian Situation in the H2 Area of Hebron City Findings of Needs Assessment, United Nations Office for the Coordination of Humanitarian Affairs 1, 2 (Apr. 2019), https://www.ochaopt.org/sites/default/files/h2_spotlight_april_2019.pdf.
[4] Supra note 2.
[5] Protocol Concerning the Redeployment in Hebron, Ministry of Foreign Affairs (Jan. 17, 1997), https://www.gov.il/en/pages/protocol-concerning-the-redeployment-in-hebron [hereinafter Hebron Protocol]; Al-Shuhada Street, Mapping the Apartheid (last visited March 7, 2025, 10:24PM) [hereinafter Al-Shuhada Street], https://www.hebronapartheid.org/index.php?map=4.
[6] Settlements, Mapping the Apartheid (last visited March 7, 2025, 10:29PM), https://www.hebronapartheid.org/index.php?glossary=settlements; Convention (IV) relative to the Protection of Civilian Persons in Time of War art. 49, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[7] Israel/OPT: Israeli Authorities are Using Facial Recognition Technology to Entrench Apartheid, Amnesty International (May 2, 2023), https://www.amnesty.org/en/latest/news/2023/05/israel-opt-israeli-authorities-are-using-facial-recognition-technology-to-entrench-apartheid/.
[8] Miftah, Israeli Checkpoints in the Occupied Territories, Miftah (July 13, 2017) https://www.miftah.org/Display.cfm?DocId=14429&CategoryId=4; see Lina Alsaafin, The Colour-Coded Israeli ID System for Palestinians, Al Jazeera (Nov. 18, 2017) https://www.aljazeera.com/news/2017/11/18/the-colour-coded-israeli-id-system-for-palestinians/#:~:text=Palestinians%20in%20the%20occupied%20West%20Bank%20and%20the%20Gaza%20Strip.
[9] Apartheid, Black’s Law Dictionary (12th ed. 2024).
[10] Rome Statute of the International Criminal Court, Article 7.1(j) [hereinafter Rome Statue]
[11] The Natives’ Land Act (1913) (S. Afr.) (defining less than one-tenth of South Africa as Black “reserves”); see History of Slavery and Early Colonisation in South Africa, South African History Online (Aug. 12, 2023), https://www.sahistory.org.za/article/history-slavery-and-early-colonisation-south-africa.
[12] Jim Crow Laws, Smithsonian National Museum of American History (last visited Dec. 3, 2024, 12:13AM), https://www.americanhistory.si.edu/brown/history/1-segregated/jim-crow.html.
[13] Id.
[14] Rep. of the Comm. On Racial Discrimination on Its 112th session, U.N. Doc. A/79/18, at 37 (2024); Prevention of Racial Discrimination, Including Early Warning and Urgent Action Procedure, Committee on the Elimination of Racial Discrimination, 1, 4 (2023), https://www.ohchr.org/sites/default/files/Documents/HRBodies/CERD/EarlyWarning/Statements/USA.pdf.
[15] Philip Alston, International Human Rights 89 (NYU Law, 2024).
[16] Canadians for Justice and Peace in the Middle East, Historical Palestine’s Demography, CJPME (Nov. 2013), https://www.cjpme.org/fs_182#_edn1 [hereinafter Historical Palestine’s Demography].
[17] The Balfour Declaration (Nov. 2, 1917) (promising the establishment of a Jewish state in Palestine by the British Government).
[18] Salman Abu Sitta, Massacres as a Weapon of Ethnic Cleansing During the Nakba, Mondoweiss (June 12, 2020), https://mondoweiss.net/2020/06/massacres-as-a-weapon-of-ethnic-cleansing-during-the-nakba/.
[19] Salman Abu-Sitta, “The Palestinian Nakba 1948: The Register of Depopulated Localities in Palestine” (The Palestinian Return Center, 2d ed., 2000).
[20] See Theodor Herzl, A Jewish State (The Maccabaean Publishing Co., 1904).
[21] Netanyahu, International Criminal Court (Nov. 21, 2024), https://www.icc-cpi.int/defendant/netanyahu.
[22] Hebron Protocol, supra note 5.
[23] Id.
[24] Id. at ¶ 9.
[25] Id. at ¶ 7(b)(2).
[26] Hebron: Palestinians Denounce Israeli Decision to End Observer Mission, BBC (Jan. 30, 2019), https://www.bbc.com/news/world-middle-east-47045622.
[27] Al-Shuhada Street, supra note 5.
[28] Evidence Indicates West Bank Killing was Extrajudicial Execution, Amnesty International (Sep. 24, 2015), https://www.amnesty.org/en/documents/mde15/2529/2015/en/.
[29] Mosab Shawer & Fayha Shalash, West Bank: Growing Israeli Restrictions Trap Palestinians in Hebron’s Old City, Middle East Eye (Nov. 13, 2024), https://www.middleeasteye.net/news/west-bank-israel-hebron-old-city-trap-palestinians.
[30] International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965. 1966 U.S.T. LEXIS 522*, 522* [hereinafter ICERD].
[31] International Convention on the Elimination of All Forms of Racial Discrimination, United Nations Treaty Collection (last visited March 9, 2025, 3:03PM), https://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&clang=_en.
[32] ICERD, supra note 30, art. 3.
[33] Id., art. 1.
[34] Supra note 31.
[35] Id.
[36] Id.
[37] Rome Statute, supra note 10, art. 7(j) (noting that the ICC has jurisdiction if the State on whose territory the crime was committed is a State Party).
[38] Committee on the Elimination of Racial Discrimination, Decisions, Statements, and Letters, United Nations Human Rights Office of the High Commissioner (last visited March 9, 2025, 3:52PM), https://www.ohchr.org/en/treaty-bodies/cerd/decisions-statements-and-letters.
[39] Rep. of the Comm. on the Elim. of Racial Disc., A/79/18, 1, 7, 10 (2024), https://www.tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=6&DocTypeID=27 [hereinafter CERD Report].
[40] CERD Report, supra note 37, at 11.
[41] Inter-State Communication Submitted by the State of Palestine against Israel, Committee on the Elimination of Racial Discrimination (Dec. 12, 2019), https://www.ohchr.org/sites/default/files/Documents/HRBodies/CERD/CERD-C-100-3.pdf.
[42] Jan Eiken, Breaking New Ground – Again? The CERD Committee’s Decision on Admissibility in Palestine v. Israel, EJIL: Talk! (May 31, 2021), https://www.ejiltalk.org/breaking-new-ground-again-the-cerd-committees-decision-on-admissibility-in-palestine-v-israel/.
[43] Id.
[44] State of Palestine, Interstate Complaint under Articles 11-13 of the International Convention for the Elimination of All Forms of Racial Discrimination, State of Palestine versus Israel 1, 342 (Apr. 23, 2018); see Dr. David Keane, Palestine v. Israel Six Years On: Time for a Decision?, Irish Centre for Human Rights (May 1, 2024), https://www.ichrgalway.org/2024/05/01/palestine-v-israel-six-years-on-time-for-a-decision/.
[45] S.C. Res. 465, ¶ ¶ 6-7 (Mar. 1, 1980) (deploring Israel’s settlements and calling upon all member states not to assist Israel’s settlements program); S.C. Res. 2334, ¶ ¶ 1-4 (Dec. 23, 2016).
[46] Dr. David Keane, supra note 43.
[47] S.C. Res. 134, ¶ 4 (Apr. 1, 1960) (calling on South Africa’s government to end its apartheid policies); S.C. Res. 181, ¶ 3 (Aug. 7, 1963) (calling upon states to end weapons sales to South Africa); S.C. Res. 418, ¶ 2 (Nov. 4, 1977); G.A. Res. 3414, ¶ 3 (Dec. 5, 1975) (calling for member states to enact an arms embargo against Israel); G.A. Res. 33/29, ¶ 2 (Dec. 7, 1978) (reaffirming calls for full Israeli withdrawal from the occupied territories); G.A. Res. 34/70 (Dec. 6, 1979); G.A. Res. 36/226(A-B) (Dec. 17, 1981).
[48] CERD/C/113/3/Add.2.
[49] Id., at para. 47.
[50] Id. at para 8; see The Knesset, Full Text of Basic Law: Israel as the Nation State of the Jewish People, Knesset News (July 19, 2018), https://www main.knesset.gov.il/en/news/pressreleases/pages/pr13978_pg.aspx.
[51] G.A. Res. 181 (Nov. 29, 1947); G.A. Res. 35/207 (Dec. 16, 1980) (reaffirming calls for a two-state solution).
[52] Nur Masalha, The Concept of “Transfer” in Zionist Thinking and Practice: Historical Roots and Contemporary Challenges, Institute for Palestine Studies (2023), https://www.palestine-studies.org/en/node/1654742; U.N. Charter art. 1, June 26, 1945 [hereinafter UN Charter].
[53] UN Partition Plan, 1947, Interactive Encyclopedia of the Palestine Question (last visited Dec. 4, 2024, 5:48PM), https://www.palquest.palestine-studies.org/en/highlight/159/un-partition-plan-1947;c.
[54] Yair Wallach, The Racial Logic of Palestine’s Partition, 46 Ethnic and Racial Studies 1576, 1577 (2022).
[55] Id.
[56] ICERD, supra note 29; Yair Wallach, supra note 51, at 1579.
[57] Historical Palestine’s Demography, supra note 16.
[58] Palestine Refugees, UNRWA (last visited March 9, 2025, 5:43PM), https:/ www.unrwa.org/palestine-refugees.
[59] Yair Wallach, supra note 51, at 1579-80.
[60] UN Charter, supra note 49.
[61] G.A. Res. S-16/1, art. 2-3 (Dec. 14, 1989).
[62] Becky Little, Key Steps That Led to End of Apartheid, History (Aug. 22, 2023), https://www.history.com/news/end-apartheid-steps.
