The legal architecture of apartheid: Israel’s carceral policies and the erosion of Palestinian rights

Abstract

Introduction: This study examines how Israeli domestic legislation, military orders, and judicial practices governing the arrest and detention of Palestinians—intensified after 7 October 2023—operate as a system of discriminatory control across the occupied Palestinian territory and within Israel. It situates recent amendments within international humanitarian and human rights law and the International Court of Justice’s 19 July 2024 advisory conclusions on the unlawfulness of Israel’s continued presence and the breach of Palestinian self-determination.

Materials and methods: A qualitative legal analysis was conducted of military orders, Knesset legislation (including the Unlawful Combatants Law), emergency regulations, and court decisions, complemented by official statements, OHCHR materials, and NGO documentation. Where available, lawyer interviews and detainee testimonies informed case studies of Gaza residents, children, and activists.

Results: Post-October measures expanded arrest powers, lengthened pre-indictment detention, delayed judicial review, restricted access to counsel, designated new detention facilities (e.g., Sde Teiman), and broadened online “incitement” enforcement. “Iron Swords” orders extended timelines under MO 1651; emergency amendments to the Unlawful Combatants Law enabled prolonged detention without prompt review; and civil criminal laws applied to Gaza detainees increased interrogation periods and bans on meeting counsel. Administrative detention surged—including unprecedented numbers of children—amid limited oversight and secrecy regarding detainee identity, status, and conditions. A dual legal regime persists: Palestinians face military courts under military law, while settlers in the same territory fall under Israeli civil law.

Discussion: The cumulative effect is a hardening carceral architecture inconsistent with fair-trial guarantees and protections in IHL and IHRL and engaging relevant crimes under the Rome Statute. Considering the ICJ’s findings and UN practice, the paper calls for ending discriminatory measures, restoring legal safeguards, ensuring transparency, and advancing third-state non-recognition and accountability.