When I was appointed by the U.N. Human Rights Council as the Special Rapporteur for human rights in the occupied Palestinian territory in March 2016, the thought that I would devote one of my reports to Israeli apartheid was the furthest thing from my mind. Using the language of apartheid to describe Israel's occupation of the West Bank, including East Jerusalem, and Gaza, I believed, would surely only harden diplomatic hearts and close doors. My initial strategy was to focus on international humanitarian law—the laws of war and occupation—and international human rights law in my reports to the United Nations and my relationships with U.N. member states.
At the time, this was to me so self-evidently the obvious approach. After all, virtually every country in the world accepted that Palestine was occupied; that the Fourth Geneva Convention applied in full; that Israeli settlements were profoundly illegal; that the Palestinians were entitled to self-determination; and that Israel's occupation was rife with human rights abuses. All I had to do, I reasoned, was to employ this rights-based framework to write clear reports, devise workable policy recommendations and call upon member states to commit themselves, in the words of Martin Luther King's 1968 "Mountaintop" speech, to be true to what they had said on paper.
In 2021, with the end of my six-year mandate in sight, my mind had changed. Two developments explain this volte-face. First, I was deeply, if guilelessly, surprised by the utter unwillingness of most member states from Europe to North America to Oceania to accept that a rules-based international order entailed the responsibility to impose accountability on other member states that persistently disobey international law and U.N. resolutions. As Article 25 of the U.N. Charter states, "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." Since the early 1970s, Israel has defied more than 30 Security Council resolutions demanding that it undo its illegal annexation of East Jerusalem, end its illegal settlements in the occupied Palestinian territory and wind up its occupation—and hundreds of more resolutions by the General Assembly and Human Rights Council.
Albert Camus once wrote that calling things by their wrong name only adds to the misfortune of the world. I came to accept that international humanitarian law could no longer adequately capture the new legal and political reality in the occupied Palestinian territory.
- Michael Lynk
Yet Western countries have continually shielded Israel from these resolutions and its defiance of them. Led by the United States, they have treated Israel as an important strategic, technological, military and political partner with a democratic framework and "shared values," marred only, perhaps, by a regrettable approach toward the Palestinians. As the intrepid Israeli journalist Gideon Levy has written, "No country is as dependent on the support of the international community as Israel, yet Israel allows itself to defy the world as few dare." After five years as Special Rapporteur, I had accepted the futility of persuading Western member states to energetically confront Israel at the U.N. through the plentiful tools of international humanitarian and human rights law, even as I continue to believe that these tools remain an important legal foundation for holding Israel to account.
The second reason for my new openness to considering the apartheid framework was the proliferating and indisputable facts on the ground. Albert Camus once wrote that calling things by their wrong name only adds to the misfortune of the world. I came to accept that international humanitarian law could no longer adequately capture the new legal and political reality in the occupied Palestinian territory. The Israeli occupation—which, under international law, is required to be temporary and short-term—had become indistinguishable from annexation and apartheid. When I became Special Rapporteur in 2016, there were 400,000 Israeli settlers in the West Bank, and 220,000 in East Jerusalem. By 2022, the settler population stood at 485,000 and 230,000, respectively. These settlers live outside of Israel's recognized international borders, yet enjoy full Israeli citizenship rights in Jewish-only communities, while the 5 million Palestinians among them live under either Israeli military law or under a truncated form of precarious residency rights. Israeli political leaders openly proclaim that the country's rule over the Palestinians and their land is permanent and no genuine Palestinian state will emerge, with little pushback from the West. When the facts change, so must our minds.
By 2022, the vocabulary for understanding the situation in Israel and the occupied Palestinian territory was changing rapidly. Beginning in 2020, a number of highly respected regional and international human rights organizations issued reports concluding that apartheid existed, either in the West Bank (Yesh Din) or in the entire area between the Mediterranean and the Jordan (Al-Haq, Addameer, Al-Mezan, B'Tselem, Human Rights Watch and Amnesty International). Some prominent Israeli figures were coming to the same conclusion, too. As one example, Michael Ben-Yair, a former attorney general of Israel, wrote earlier this year that Israel had become "an apartheid regime" and "a one-state reality, with two different peoples living with unequal rights."
If there is a better word in the international vocabulary to describe the situation of two different peoples inhabiting the same political space, yet living in sharply segregated communities and having access to vastly different legal and social rights based solely on their ethnicity and nationality, then let's use that term.
- Michael Lynk
In my March 2022 report to the Human Rights Council, I followed the path of these human rights organizations in adopting the legal definition of apartheid laid out in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and the 2002 Rome Statute of the International Criminal Court. This meant that my starting analytical point was not whether Israel's practices in the occupied Palestinian territory resembled apartheid South Africa, but whether the embedded practices of the Israeli occupation satisfy the definition in these two binding international documents. My report determined that the apartheid definition was satisfied.
In my oral presentation to the Human Rights Council, I concluded by saying: "I would not be here in front of you today, delivering a report on how an unrelenting occupation has metastasized into apartheid, had the international community taken its own laws seriously 45 and 35 years ago when the Security Council and the General Assembly began to adopt the first of their many resolutions critical of the Israeli occupation. International law is not meant to be an umbrella which folds up at the first hint of rain."
My apartheid report received more international media and civil society coverage than any of my previous U.N. reports. Much of it was positive. The New York Times covered its release, after previously ignoring—to its shame—the comprehensive reports on Israeli apartheid issued by Human Rights Watch in 2021 and Amnesty International in early 2022. Following the 2017 report on Israeli apartheid prepared by Richard Falk and Virginia Tilley for the U.N. Economic and Social Commission for West Asia—which the U.N. leadership quickly smothered at the instigation of the Trump administration—my report become the second within the U.N. system devoted to the topic. Although criticized by the usual suspects, my report was left to stand unscathed, partly because of the autonomy enjoyed by the special procedures within the U.N. human rights system and partly because of the sea change in international opinion toward Israel and its systemic discriminatory practices.
In one of my many interviews following the release of the report, I said that, if there is a better word in the international vocabulary to describe the situation of two different peoples inhabiting the same political space, yet living in sharply segregated communities and having access to vastly different legal and social rights based solely on their ethnicity and nationality, then let's use that term. Until then, apartheid is the appropriate word.