Occupation and the Prohibition of Apartheid

This Expert Opinion explores whether the prohibition of apartheid applies in situations of occupation and how it interacts with the law of occupation.

In the Israeli-Palestinian context there has long since been heated debate about whether the State of Israel subjects Palestinians to a regime of apartheid. In addition to disputes about factual particularities, this debate revolves in no small part around questions of law. Notable among these are the questions of whether the prohibition of apartheid applies in situations of occupation and how it interacts with the law of occupation (derived mostly from international humanitarian law and complemented by human rights law).

With a view to shed light on these questions, which can have significant ramifications for humanitarian protection, the Diakonia IHL Centre in Jerusalem commissioned Dr. Miles Jackson, Associate Professor of Law at the University of Oxford, to author an Expert Opinion on “The Interplay between the Legal Regime Applicable to Belligerent Occupation and the Prohibition of Apartheid under International Law”. In order to distill the relevant legal questions from context-specific considerations, the Expert Opinion addresses the issue in abstract. Its findings can consequently be applied to any situation of belligerent occupation when seeking to ascertain whether the prohibition of apartheid has been violated.

The Expert Opinion analyzes the meaning of the prohibition of apartheid binding states and affirms that it continues to apply extraterritorially and in situations of occupation. It explores the different ways the prohibition of apartheid and the law of occupation may interact – functioning in parallel, in complementarity, or in conflict. The Expert Opinion considers certain practical possibilities for how an apartheid regime may arise in situations of occupation, and the legal consequences of the violation of the prohibition of apartheid in occupied territory.

The Expert Opinion is informed by the valuable comments provided by a group of eminent experts in international law. However, the views expressed in the Expert Opinion are those of the author.