No. And the argument turns on one element of the definition, not on the facts of the case.
No court has ruled it. The furthest any court has gone is the International Court of Justice advisory opinion of 19 July 2024, which found a breach of Article 3 of the 1965 racial discrimination convention and then declined to say whether what it had found was segregation or apartheid.
Apartheid is not an adjective for a policy someone finds cruel. It is a crime defined twice in international law, in 1973 and again in the 1998 Rome Statute, and both definitions require domination by one racial group over another.
The organisations that apply the word to Israel do not argue that Jews and Palestinians are races. They replace that element with a broader one drawn from a different treaty, then find the broader one satisfied. The replacement is made openly, in their own text, and it is quoted in full below.
The test the word carries
Apartheid entered international law twice, and both times somebody wrote down what it means. The 1973 Apartheid Convention defined it first. The Rome Statute of the International Criminal Court, the instrument any prosecution would actually run under, defines it in Article 7(2)(h):
“‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, 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.”
Rome Statute, Article 7(2)(h), 17 July 1998That sentence is a list of elements, and a prosecutor has to carry every one of them:
- Inhumane acts of a character similar to those in Article 7(1): murder, deportation, imprisonment, torture, persecution.
- Committed in the context of an institutionalized regime, meaning built into the legal architecture, not a pattern of bad conduct.
- Of systematic oppression and domination.
- By one racial group over any other racial group or groups. the contested element
- With the intention of maintaining that regime, an intent the prosecution has to prove.
Elements one to three are argued on the evidence, and reasonable people read the evidence differently. Element four is not argued at all. It is replaced.
Which element is actually in dispute, and how it is got around
Nobody claims Jews and Palestinian Arabs are races. Both are Middle Eastern peoples, and a majority of Israeli Jews descend from families who lived in the Middle East and North Africa, so there is no colour line available to legislate even for someone who wanted one. So the accusation reaches element four by a different route: it imports the definition of racial discrimination from a separate treaty, the 1965 Convention on the Elimination of All Forms of Racial Discrimination, which reaches descent and national or ethnic origin, and adds the subjective approach the international criminal tribunals developed in the Rwanda cases, under which a group is whatever the people involved perceive as a group.
This is not our characterisation of the move. Three documents carry the accusation, and each one describes the substitution in its own text. Start with the one everybody quotes:
“A Threshold Crossed”
What it argues. That Israeli authorities pursue a single policy across Israel and the territories captured in 1967:
“to maintain the domination by Jewish Israelis over Palestinians across Israel and the occupied territory”
A Threshold Crossed, Human Rights Watch, 27 April 2021
and that in the territories this reaches the threshold of the crime, because it is “coupled in the occupied territory with systematic oppression and inhumane acts against Palestinians living there.” Read precisely: HRW's apartheid finding is located in the occupied territory, not inside Israel's own borders. It is the single-policy framing that carries the word across the Green Line, and the framing is the argument, not a finding. Amnesty, ten months later, dropped the qualifier entirely.
Where the definitional move is. Element four, reached by substitution, in the report's own words:
“An understanding of ‘racial group’ in line with ICERD's conception of ‘racial discrimination’ and international criminal courts' ‘subjective approach’ to determining racial and other groups mirrors the evolution in how the social sciences understand race.”
A Threshold Crossed, Human Rights Watch
“it is clear that in the local context, Jewish Israelis and Palestinians are regarded as separate identity groups that fall within the broad understanding of ‘racial group’ under international human rights law.”
A Threshold Crossed, Human Rights Watch
And the report's own scope line, which the headline it produced does not survive:
“The report does not set out to compare Israel with South Africa under apartheid or to determine whether Israel is an ‘apartheid state’—a concept that is not defined in international law.”
A Threshold Crossed, Human Rights Watch
The document everyone cites for the sentence “Israel is an apartheid state” says, on its own terms, that it does not set out to determine that, and that the phrase has no definition in international law. The slogan is not the report's finding. It is the report's disclaimed non-finding.
“Israel's Apartheid Against Palestinians”
What it argues. Not a finding about the occupied territory that a single-policy framing then carries westward. The finding is the whole area, stated flat:
“Amnesty has concluded that Israeli authorities are enforcing a system of apartheid against all Palestinians living under their effective control – whether they live in Israel, the Occupied Palestinian Territories (OPT), or in other countries as refugees.”
Amnesty International, Q&A on the report, 1 February 2022
Where the definitional move is. Amnesty puts the question to itself, under the heading “Why do you refer to Jewish people and Palestinians as ‘racial groups’?”, and answers it by declining to answer it:
“It is not Amnesty’s place to decide what constitutes a racial group. Our analysis in this report is based on how the term ‘racial group’ is used within the apartheid framework in international law: as a subjective concept, dependent on the dominant group’s perception of the other group.”
Amnesty International, Q&A on the report
That is Human Rights Watch's substitution again, compressed into one sentence. A racial group becomes whatever the accused is said to perceive, so element four is established by characterising the defendant's state of mind rather than by identifying a race. Amnesty also records what its own evidence looks like west of the Green Line: “Amnesty acknowledges that inhuman or inhumane acts inside Israel occur to a lesser degree and in a far less violent manner than in the OPT.”
“A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid”
What it argues. One regime over the whole area, organised around one purpose:
“the entire area between the Mediterranean Sea and the Jordan River is organized under a single principle: advancing and cementing the supremacy of one group – Jews – over another – Palestinians.”
B'Tselem, 12 January 2021
and a test cut to fit it: “A regime that uses laws, practices and organized violence to cement the supremacy of one group over another is an apartheid regime.” Hold that beside Article 7(2)(h). The word racial is gone. What is left, one group over another, describes a very large share of the governments that have ever existed.
Then B'Tselem states the problem itself:
“There are, of course, differences between the regimes. For instance, the division in South Africa was based on race and skin color, while in Israel it is based on nationality and ethnicity.”
B'Tselem, 12 January 2021
Nationality and ethnicity are not race, and it is the accusing organisation saying so. The crime requires a racial group. Each of the three documents reaches that element by putting something else in the slot, and each of the three says which thing, in its own text.
What the substitution costs is that element four stops filtering anything. Read that way, any two national or ethnic communities in a conflict who perceive each other as distinct satisfy it, which is most of the conflicts on earth. The 1965 convention was thirty-three years old when the Rome Statute was drafted and the Statute still says racial group, in an instrument whose Article 22(2) says “The definition of a crime shall be strictly construed and shall not be extended by analogy.” That is the entire dispute: a word in a criminal treaty, and whether it may be widened by analogy to make a charge available. It is not a dispute about whether Arab citizens of Israel vote.
How far a court has actually gone
The high-water mark is the International Court of Justice advisory opinion of 19 July 2024. The Court held that Israel's measures in the territory captured in 1967 breach Article 3 of the 1965 racial discrimination convention:
“Israel's legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities … Israel's legislation and measures constitute a breach of Article 3 of CERD.”
ICJ, summary of the advisory opinion of 19 July 2024Article 3 covers two things, racial segregation and apartheid, and the Court did not say which one it had found. It declined to. Take the finding for exactly what it is: an advisory opinion rather than a judgment against a party, addressed to territory captured in 1967 and not to Israel inside its own borders, and stopping deliberately short of the word. The Court's president said separately that the discriminatory laws are “tantamount to the crime of apartheid”, and that is a declaration by one judge, not the Court's operative conclusion. That is as far as any court on earth has gone, and it did not go there.
The West Bank, where the charge is serious
Here is the argument at full strength, because the weak version is not the one that persuades anyone: in the same territory, an Israeli settler is tried in an Israeli civilian court while a Palestinian resident falls under Israeli military law, and the permits, roads and checkpoints of that system are administered by an army the second man cannot vote out. That is a real two-tier legal reality. The question is whether it is a race law or a citizenship line inside an unfinished war, because only one of those is the crime.
- Two legal systems do operate in the same territory, and the asymmetry is real.
- Checkpoints, the permit regime, home demolitions and settler violence the army fails to stop impose daily hardship on people who never attacked anyone.
- Settlement expansion entangles Israel in open-ended rule over non-citizens and narrows the map for two states. Israelis argue about this in their own parliament and their own press.
- Israel's Or Commission, appointed after 13 Arabs were killed in the October 2000 riots, 12 of them Israeli citizens and one a resident of Gaza, reported in 2003 that Israeli police had used excessive force against them.
- The line is citizenship, not ancestry. Israel's two million Arab citizens carry Israeli law with them into the West Bank, on the same roads and the same licence plates as any other Israeli.
- Oslo. The PLO signed it in 1993 and 1995. Oslo II handed civil administration of Areas A and B, home to some 90 percent of West Bank Palestinians, to the Palestinian Authority, which polices, taxes, schools and doctors them.
- The offers. Statehood was put on the table at Camp David in July 2000 and again in Olmert's map of September 2008, and neither was accepted. Clinton closed Camp David on 25 July 2000 saying the sides could not reach an agreement, and that Barak had moved further from his opening position than Arafat. On Olmert's account of 2008, Abbas called the offer serious, asked to study the map, and never came back with an answer. Taba, January 2001, was neither: those talks were suspended for Israel's election, on a joint statement that the two delegations “have never been closer to reaching an agreement”. A regime whose purpose is permanent domination does not keep putting an end to it on the table.
- Israel's own courts. In 2009 the Supreme Court struck down the blanket closure of Route 443 to Palestinian traffic as disproportionate, having already ordered the security barrier rerouted in 2004 to spare Palestinian villages. Courts under apartheid enforced the race laws.
- Gaza. Israel removed every soldier and every settler in 2005.
One thing cuts against the tidy version on both sides: the Palestinian Authority has not held a presidential election since 2005 or a legislative election since 2006. West Bank Palestinians are governed by a body they elected twenty years ago and have not been allowed to replace. That is a failure of Palestinian governance, and it is still not an Israeli race statute.
The two witnesses both sides call
Richard Goldstone is the South African judge who led the UN's own fact-finding mission on Gaza, and who seven months earlier, in the Washington Post of 1 April 2011, had publicly retracted a central finding of that mission, that Israel had targeted civilians as a matter of policy. He wrote in the New York Times on 31 October 2011, under the headline “Israel and the Apartheid Slander”:
“In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute.”
Richard Goldstone, New York Times, 31 October 2011Benjamin Pogrund reported on apartheid from the Rand Daily Mail, the one South African paper covering the townships, and spent decades refusing the comparison. In The Guardian in October 2012: “Why do I dismiss the apartheid analogies so emphatically? Because I straddle both apartheid South Africa and Israel today.” Then he changed his mind. Writing in Haaretz on 10 August 2023, under the headline “For Decades, I Defended Israel From Claims of Apartheid. I No Longer Can”, he wrote: “In Israel, I am now witnessing the apartheid with which I grew up in South Africa.”
That is the strongest single piece of testimony the other side has. Take it precisely. Pogrund's piece is an opinion column written during Israel's constitutional crisis over the judicial overhaul, by a journalist making a moral comparison. He is not arguing that Jews and Palestinians are racial groups within the meaning of Article 7(2)(h), because that is not the argument a columnist makes. Nobody who wants the criminal force of the word has been able to reach it without widening the element that makes it a crime.
That gap is where the whole dispute lives: apartheid as a moral comparison, which anybody may draw and argue about, against apartheid as a crime with elements, which is the meaning the accusation borrows its weight from and the meaning it cannot satisfy.
What this answer does not claim
Not that Israel treats its Arab citizens equally in every respect. Arab towns have historically received less municipal funding and land allocation. The 2018 Nation-State Law drew protest from Arab citizens, including Druze who serve in the army. Not that occupation is comfortable, or that it should be open-ended, or that unpunished settler violence is anything but a stain.
Those are arguments about a democracy at war with an unresolved border, and Israelis have them in public, in a parliament ten of whose seats are held by Arab parties and before a court on which an Arab justice sits. None of it is the crime. A word chosen because it forecloses argument is not describing the case. It is ending it, and it can only do that by meaning something other than what it says.
Read next
Sources
- Rome Statute of the International Criminal Court, Article 7 and Article 22 (UN)
- International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973 (UN Audiovisual Library of International Law)
- Human Rights Watch, “A Threshold Crossed”, 27 April 2021, full report
- Amnesty International, “Israel's Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity”, 1 February 2022, full report · Amnesty's own Q&A on the report
- B'Tselem, “A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid”, 12 January 2021
- International Court of Justice, summary of the advisory opinion of 19 July 2024
- UN General Assembly resolution 3379 (XXX), 10 November 1975 · resolution 46/86, revoking it, 16 December 1991
- President Clinton, statement on the Camp David talks, 25 July 2000 (Avalon Project, Yale Law School)
- Israeli-Palestinian joint statement at the close of the Taba talks, 27 January 2001
- Times of Israel: the map of Ehud Olmert's September 2008 offer, and Olmert's account of Abbas's response
- Israel Democracy Institute, results of the 2022 election in the Arab sector
- Israel Central Bureau of Statistics, population of Israel on the eve of 2026
- Times of Israel: Khaled Kabub sworn in as the Supreme Court's first Muslim justice, May 2022
- Richard Goldstone, “Israel and the Apartheid Slander”, New York Times, 31 October 2011
- Richard Goldstone, “Reconsidering the Goldstone Report on Israel and war crimes”, Washington Post, 1 April 2011
- Benjamin Pogrund, “For Decades, I Defended Israel From Claims of Apartheid. I No Longer Can”, Haaretz, 10 August 2023
- Times of Israel on the October 2000 killings and the Or Commission · Adalah's case archive on the same events
- Abu Safiyeh v. Minister of Defense: Israel's Supreme Court strikes down the Route 443 closure, 2009 (Versa, Cardozo Law)
- South African History Online: apartheid legislation, act by act