John Kerry’s infamous apartheid comment continues to make waves in Israel, eliciting pushback from some surprising places—like yesterday’s Haaretz column by Zvi Bar’el. Bar’el, whom nobody could accuse of being an Israel apologist (his column asserts Israeli control over the West Bank is even worse than the apartheid), points out that under apartheid, the legal regime discriminates between citizens of the same country. That’s fundamentally different from an occupation, under which the legal regime discriminates between the occupying power’s citizens and the occupied non-citizens. All occupying powers have given their own citizens more rights than the occupied non-citizens, from the British in India through the French in Algeria to the Americans in Iraq, he noted; yet none of these were ever labeled apartheid. Why should Israel be any different?
But Bar’el neglects to mention one important point: The legal distinction all occupations make between citizens and non-citizens isn’t just a whim of “racist” occupiers; it’s mandated by the Fourth Geneva Convention.
This convention largely bars occupiers from applying their own laws to the occupied population, requiring them instead to maintain the preexisting legal system except where alterations are necessary to ensure the occupier’s security. For instance, Article 64 states “The penal laws of the occupied territory shall remain in force”; Article 51 requires the occupier to uphold the “legislation in force in the occupied country concerning working conditions”; and so forth. One of the most discriminatory practices of all is explicitly mandated by Article 66, which states that if the occupier promulgates laws for its own security in the occupied territory, violators from among the occupied population shall be tried in “properly constituted, non-political military courts.”
Israel has never officially deemed the West Bank occupied territory; it considers it disputed territory to which Israel has a valid claim. But under pressure from the rest of the world, which insists the West Bank is occupied territory, Israel long ago agreed to voluntarily uphold most of the Geneva Convention’s provisions. The ironic result is that in many cases, West Bank Palestinians have fewer rights than Israelis.
For instance, Israeli labor law provides more protections than the patchwork of Jordanian and Ottoman law in place when Israel captured the West Bank in 1967. But the world views any application of Israeli law to “occupied territory” as a sign of annexation (see, for instance, the international outcry when Israel applied Israeli law to the Golan Heights in 1981). Thus for fear of sparking international protests, Israel has refrained from applying its own labor laws to the West Bank.
Similarly, human-rights organizations repeatedly slam trials in military courts as inherently inferior to those in civilian courts, and not without reason: Most democratic countries, Israel included, have laws requiring civilians to be tried in civil rather than military courts. That’s why Israeli civilians who commit crimes in the West Bank are tried in Israel’s civil courts rather than military ones—just as American civilians who committed crimes in Iraq were tried in American civil courts rather …read more