In April, the United States Department of State published its annual reports on human rights practices in countries that receive U.S. foreign aid, including Israel. While the report on Israel downplays its ongoing genocide in the Gaza Strip—which, so far, has killed more than 38,000 Palestinians, including 15,000 children, according to Al Jazeera—it also includes a surprising acknowledgment of Israeli apartheid in the West Bank.
As the report states, “Israeli citizens who committed crimes within the West Bank were subject only to Israeli law and could only be tried in civilian courts within Israel, whereas Palestinians in the West Bank were subject to trial in Israeli military courts.”
Critics of Israeli apartheid have acknowledged the existence of a two-tier legal system empowering Israelis and oppressing Palestinians in the occupied territories for years. Although it took the U.S. Department of State this long to admit it, former U.S. President Jimmy Carter underscored the fact in his book Palestine: Peace Not Apartheid in 2007. But critics like Carter, who oppose the Israeli occupation of Palestine but defend Israel otherwise, hedge their criticism, claiming that Israeli apartheid applies only to the occupied Palestinian territories, not within the internationally recognized borders of Israel proper.
Such critics, therefore, continue to lend credence to the claim that Israel is “the only democracy in the Middle East,” when nothing could be further from the truth: From the Jordan River to the Mediterranean Sea, Israeli apartheid—not democracy—is in fact the law of the land.
Israel, while governed by elected officials, falls far short of being a democracy in that there is no equality before the law. Even within Israel proper, there exists a two-tier legal system, which is glaringly evident when considering the “Jewish Nation-State Law,” or JNSL.
JNSL was passed in 2018 and “enshrines Jewish supremacy,” according to the Adalah Legal Center for Arab Minority Rights in Israel. Among its precepts, the law claims that “national self-determination in the State of Israel is exclusive to the Jewish people,” “the complete and united Jerusalem is the capital of Israel,” and “the State views the development of Jewish settlement as a national value.” In other words, JNSL defines Israel as an exclusively Jewish state at the expense of its other citizens, such as the Palestinians who make up 20 percent of its population, and commits the country to the annexation of both East Jerusalem and the West Bank.
“This is what apartheid is,” Hassan Jabareen, director of Adalah, tells The Progressive. “Apartheid is about superiority in citizenship of one group and inferiority of another group.”
As Jabareen explains, Israel’s Constitution—composed of JNSL and other “Basic Laws”—now dedicates the state not to its citizens, but to a specific ethnic group. He compares Israel’s Constitution to the one adopted by the Apartheid-era South African government in 1983, which was rejected by the United Nations and others for “transforming South Africa into a country for ‘whites only’” by systematically excluding Black South Africans.
Since the passage of JNSL, Jabareen describes the difficulty that advocacy groups like Adalah face in trying to contest openly discriminatory policies enacted by the Israeli government. In addition to exacerbating the existing climate of Jewish discrimination against Palestinians, JNSL legitimizes policies that undermine equality, because equality itself is no longer the ideal enshrined by law.
Jabareen highlights a program distributing assault rifles to Jewish “volunteers” enacted after the attacks by Palestinian militants on Israel on October 7 as an example of the state literally arming one segment of its citizens against another. “[Israeli Minister of National Security Itamar Ben-Gvir] said to arm every Jewish person in order to face the threat of the Palestinians,” Jabareen says. “Imagine the United States saying it will arm every white citizen against the Black ones. Imagine any state that comes to one ethnic group to arm it in order to face the other. . . . This happened after the Nation-State Law. Many illegitimate actions couldn’t be imagined before that.”
Discrimination against Palestinians by Zionists, or Jewish ethno-nationalists, predates the passage of JSNL, even dating back to before Israel’s founding. The Jewish National Fund (JNF), an explicitly Zionist organization founded in 1901 that is currently the largest private landowner in Israel, has consistently and openly discriminated against Palestinians and other non-Jews, categorically refusing to lease them property. In 2004, Adalah challenged JNF’s discriminatory practices in Israeli court, which JNF defended in terms that would echo in JNSL years later:
As a landowner, the JNF is not a public body which acts on behalf of all the citizens of the state. Its loyalty is to the Jewish people and its responsibility is to it alone. As the owner of JNF land, the JNF does not have to act with equality towards all citizens of the state.
Although the Israeli Attorney General found that JNF’s leasing practices were indeed discriminatory and its leases had to be opened to bidding by non-Jewish Israeli citizens, the state offered to “compensate” JNF with an equal amount of public land. In other words, the state was willing to accommodate JNF’s discrimination.
But even such a lopsided judgment against discrimination would be unlikely in Israel today.
“Before [JNSL],” Jabareen says, “I had the opportunity to come to the court and to claim that the Jewish National Fund shouldn't intervene in prohibiting Palestinians to live in any town, and in this case, the Supreme Court accepted that Palestinians are allowed to live in Jewish towns . . . . Now, I cannot make this argument, because the purpose of the Jewish Nation State Law is to make such a decision irrelevant.”
JNSL makes the illegal discrimination of the past the official state policy of the future. Thus, the impact of organizations like JNF in coordination with legislation like JNSL is not only that they make discrimination possible, but that they head off any legal challenges to it, thereby making true democracy impossible.
“No one wishes to have a democracy like Israeli democracy,” says Jabareen. “If this is democracy, we hope that no state in the world will be a democratic state.”