Attempts to tar Israel as an apartheid state under international law, twist legal tools for political ends, a new NGO Monitor report argues.
Authored by British Barrister Joshua Kern and NGO Monitor Legal Advisor Anne Herzberg, the report delves deep into legal sources to identify what “apartheid” means as a crime in concrete legal terms as opposed to its colloquial and political uses.
The report comes following non-governmental organizations (NGOs) increasing campaign to apply the “apartheid” label to Israel not only in political discourse but lobbying the International Criminal Court (ICC) to charge Israelis with this crime and bolstering related campaigns at the UN.
“Apartheid is a grave accusation, but claims of apartheid have been made imprecisely and casually by many NGOs… the definition of apartheid is untested in international law as no court has yet examined the crime, and there is comparatively little legal writing available,” says the report.
NGO Monitor views the report as an opportunity to address “this legal vacuum and provides a full analysis grounded in international law of the elements of apartheid as a crime against humanity.”
According to the report, “the elements of the crime have been broadened by Human Rights Watch [HRW] and others in a manner that is inconsistent with both the principle of legality (under international human rights law) and the presumption that the definition of crimes shall be strictly construed (under international criminal law).”
In addition, “The legal elements suggested by HRW are arguably inconsistent with the definition of the crime of apartheid under the Rome Statute and the Apartheid Convention, and their application is inapposite to the Israeli-Palestinian situation,” the report states.
Getting more specific, the report says that under the ICC’s Rome Statute, “to constitute a crime against humanity, a person’s criminal acts must have a nexus with a widespread or systematic attack directed against a civilian population, pursuant to a State or organizational policy.”
This is based on the idea “that crimes against humanity so shock the conscience of mankind and warrant intervention by the international community” because they are “not isolated, random acts of individuals, but rather result from a deliberate attempt to target a civilian population.”
In contrast, the report’s authors would view acts of extremist Jewish violence, which NGOs then cite as proof of Israeli apartheid, as random individual acts which the state not only does not facilitate but acts against.
Another key concept would be that according to some international judicial decisions, “discrimination by an occupying power between the treatment of its own nationals and protected persons would not constitute oppression per se. Where discriminatory measures are not arbitrary, for example, because they reflect” unique aspects of the laws of war.
Further, NGO Monitor writes, “A situation of belligerent occupation is not inherently oppressive. A situation of belligerent occupation is ‘inherently unbalanced’ and coercive, and a collision between human rights almost inevitably transpires in an occupied territory.”
Quoting legal scholars, the report states, “the crux of belligerent occupation is that, at odds with pacific occupation, it is coercive by nature.” This is partially because “the occupied population is not part of the political community that rules it.”
Put simply, this means that if Israel sometimes treats Palestinians differently because of valid security concerns under the laws of war as part of the conflict between the peoples, that is not illegal discrimination, and certainly not the crime of apartheid.
Moreover, some differences in treatment are inherent in the conflict.
In this line of thinking, the focus would be debating whether a specific legal difference is justified.
Along a similar vein, the report states that “The law of occupation contemplates separate legal regimes for protected persons and for nationals of an Occupying Power… it is foreseeable that the characterization of such separate systems as giving rise to a breach of the principle of equality will be contested.”
In plain speak, this means that the frequent criticism that Israel has two legal systems with some different laws for Israeli and Palestinian persons is inherently unequal misses the point: that occupation as the aftermath of war is inherently likely to lead to different legal systems. (though in mere border infiltration or theft cases not involving security - the laws are more similar).
Herzberg added that even the substantive law that Israeli military courts apply to Palestinians must inherently be different given that the system is obligated to apply certain preexisting Jordanian and other foreign laws.
In addition, HRW argues that the definition of “racial group” under the Rome Statute is “broader” than “a narrower interpretation focused on divisions based on skin color.” It grounds its analysis on the International Convention on the Elimination of All Forms of Racial Discrimination’s definition of racial discrimination.
But NGO Monitor says that global criminal tribunals have taken a much narrower view of defining “racial discrimination” in the context of a criminal case.
One legal scholar quoted in the report observes that “the application of human rights law in the interpretation of an international crime is problematic for a number of reasons,” not least that international criminal law “is governed by the principles of strict legality, foreseeability, and specificity.”
The report adds that this means that international criminal law “must always be interpreted strictly, while respecting the procedural rights of the accused,” while international human rights law “will generally be interpreted broadly.”
In early 2022, NGO Monitor will issue a follow-up report more directly connecting the general legal analysis to Israel and territories under its administration.
Some issues expected to be treated in that report include the charge that none of 2021’s alleged Israeli apartheid actions detail whether a widespread or systematic attack directed against the Palestinian civilian population is occurring.
HRW alleges “inhuman acts” include denial of rights to free movement, rights of residency and nationality, and the right to free expression.
Yet, Herzberg states that “If these allegations cannot be relied upon to establish proof of an ‘attack,’ because they are not” similar to other crimes against humanity, any criminal case would fall short.
Turning to the “domination” element of apartheid, NGO Monitor will examine Israel’s 1950 Law of Return, its 2018 Nation-State Law and its constitutional nature as a Jewish and democratic state to examine whether its legislative and constitutional framework establishes a regime of “domination.”
As for systematic “oppression”, the upcoming report will find that Israeli practices and policies are not comparable to those of apartheid South Africa.
Moreover, it will criticize HRW for disregarding the significance of the Israeli Supreme Court’s jurisprudence and call on it to focus on “the fact of discriminatory measures rather than on detailed assessments of reasonableness.”
Next, the current report evaluates the apartheid label as applied to Israel, which began with antisemitic Soviet and Arab propaganda in the 1950s and continued through the Cold War and the 1975 “Zionism is racism” resolution.
Moreover, in 2001, the UN Durban Conference embraced this delegitimization campaign by promoting a new and unique definition of apartheid reserved exclusively for Israel – which has recently escalated.
Herzberg commented, “The charge of 'apartheid' has been used for decades as a means to delegitimize the right of Jews to sovereign equality in their historic homeland and to characterize Jewish self-determination as a violation of the international legal order.”
“In recent years, NGOs have joined this campaign, inventing a legal definition of the crime of apartheid aimed at Israel alone. This report exposes and corrects the false NGO claims,” she concludes.