Earlier this week, the US-based international NGO Human Rights Watch (HRW) made headlines when it accused Israel of executing the crime of apartheid and called on the International Criminal Court to allow Israelis to be sued for apartheid, as well as for any other war crimes.
Legal expert Eugene Kontorovich minced no words in describing the danger of apartheid allegations.
“It is a not very subtle backhanded call for the dismantlement of the state as we know it,” said Kontorovich, who heads the International Law Department at the right-wing Kohelet Policy Forum.
The charge of apartheid itself is one that the Palestinian Authority has long lobbed against Israel, dropping the accusation into statements and speeches, including on the floor of the United Nations General Assembly.
“It is our right to search for alternatives that preserve our rights and protect our land and our people from an entrenching system of apartheid,” Palestinian Authority President Mahmoud Abbas told the UNGA in 2017. He asked if the world could tolerate such a regime in the 21st century.
Palestinians are not the only ones linking Israel with apartheid at the UN.
In 2017, UN Secretary-General Antonio Guterres pulled a report, for procedural reasons, by the Economic and Social Commission for Western Asia (ESCWA) accusing Israel of being an apartheid state.
In 2020, a group of 47 UN experts warned that Israeli annexation of West Bank settlements would create a situation of apartheid. That June, attorney Michael Sfard wrote a study for the left-wing NGO Yesh Din, in which he argued that Israel was already committing the crime of apartheid in the West Bank, regardless of whether it formally annexed some of that territory or not.
BUT THE August suspension of annexation did not end the apartheid cry, since the absence of any peace process refocused attention on the status quo – in which Hamas rules Gaza, the Palestinian Authority governs Areas A and B of the West Bank and the IDF executes military and civilian rule in Area C of the West Bank.
In January, the Israeli left-wing NGO B’Tselem released a study accusing Israel of apartheid. What was striking about its report was its extension of the apartheid charge to the entire area between the Jordan River and the Mediterranean Sea, so that it looked at sovereign Israel and non-sovereign Israel as one entity.
This included the West Bank and Gaza, including both the West Bank territory under IDF military rule and the West Bank territory under the autonomous government of the Palestinian Authority.
It argued that all of this territory should be looked at as one entity under Israeli control, and that the Israel was carrying out apartheid policies with regard to that entity.
The HRW report similarly accused the Jewish state of the crime of apartheid, both within and without sovereign Israel.
Both the B’Tselem and the HRW reports were issued just as the 2020 Abraham Accords, which allowed for normalized ties with Israel and Arab nations, took some of the winds out of the Boycott, Divestment and Sanctions Movement.
Its opponents say that the new apartheid campaign is politically charged, with an eye to capitalizing on the focus, particularly in the United States, on the dangers of racism, a topic that is particularly important for the Biden administration.
It also moves the argument from occupation, an issue that is debatable under international law – which allows for occupation – to one that is unacceptable: apartheid.
For Israel, this is an apartheid charge reminiscent of UN General Assembly Resolution 3379 from 1975, which stated that Zionism was a form of racism, and was revoked in 1991. It’s particularly evocative here because of the attack on sovereign Israel and the inclusion of the Law of Return, which guarantees citizenship to Jews, as an example of an apartheid-like practice.
APARTHEID ITSELF is traditionally linked to the system of oppression and racism that existed in South Africa from 1948-1994. The 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid defined the crime as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.”
But the document, which gave an extensive description of apartheid, linked it heavily to South Africa, noting that “‘the crime of apartheid,’ which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa.”
Opponents of the link between Israel and South Africa often note that the situation in sovereign Israel and the West Bank bears little comparison to South Africa. Within sovereign Israel, citizenship rights are granted to Israeli-Arabs. Many of the Palestinians living in areas A and B of the West Bank are governed by the Palestinian Authority based on the Oslo Accords, to which both Israelis and Palestinians were signatories.
HRW, however, seeks to distance itself from the South Africa comparison, putting forward a definition of apartheid that was more in line with the 1998 Rome Statute, on which the ICC is based. That definition spoke of it as oppression consistent with “crimes against humanity” but did not mention South Africa.
The NGO spoke of a three-pronged definition: an intent to maintain domination by one racial group over another, a context of systematic oppression of one group over another and inhumane acts.
To date, the ICC has not opened any investigation of apartheid against another country, so there is no case law by which to judge whether laws of apartheid are applicable or not applicable to Israel’s actions against the Palestinians.
Even HRW has rarely used the charge of apartheid to define the actions of a state, although it did so last year against Myanmar.
Former Canadian justice minister and international legal expert Irwin Cotler told The Jerusalem Post that if you “say that Israel is an apartheid state, then you are saying that Israel is a crime against humanity. If it’s a crime against humanity, then it has no right to be... and we have an obligation to make sure that it has no right to be – that is what makes such an allegation so pernicious.”
Cotler said that, “as someone who was involved in the struggle against apartheid... viewed apartheid up front and was arrested in South Africa for just giving a speech that mentioned [anti-apartheid leader Nelson] Mandela’s name,” he knows how “absurd” the accusation is.
“It also demeans the real authentic struggle against real apartheid,” he said.
OPPONENTS OF the apartheid term have explained that the power of the charge of apartheid is less a legal threat to Israel at the ICC, than its use as a new public relations weapons to delegitimize the state.
Human Rights Watch officials have rejected that argument, noting at a press conference given Tuesday that their report, two years in the making, is not aimed at dismantling the state of Israel but rather its discriminatory practices.
Eric Goldstein, executive director of HRW’s Middle East and Africa division, said that after 54 years of Israeli “occupation,” it was now possible to ascribe the kind of intent needed to prove an apartheid charge.
Sfard, who is most comfortable with an apartheid charge limited to the West Bank, said that two decades ago he did not believe the crime of apartheid was applicable to the West Bank, but over the years he began to doubt his initial conclusion.
There was not one specific point when he understood that his opinion on the topic had undergone a sea change.
It was a process, he said, in which it became clear to him around 2016 that Israel’s intent was to perpetuate the situation. “The lie that the situation is temporary was clear to me,” Sfard said.
It was not enough, he said, to just speak of “occupation.” The occupation is not an illegal situation, but apartheid is illegal – and if the regime is a regime of apartheid, you have to bring it to an end.
“It is one thing to say that there are war crimes that are being committed in the framework of a legal system, but it is another thing to say that yes, there are war crimes that are committed apart from that – there is an illegal system that is operating here,” he said.
“As a lawyer, I want to describe in legal terms what we are seeing, Sfard said. “The legal stance of occupation does allow us to understand in legal terms what is happening and that was the frustration of many activists including myself – that occupation explains the reality only partially. The paradigm of apartheid supplements and compliments and allows us to understand the reality in legal terms much better,” he said.
Goldstein on Tuesday said that the “threshold” for apartheid had now been crossed.
“It is the present day reality for millions of Palestinians,” he said.
People should recognize that reality for what it is and bring to bear the “human rights tools to end it,” he added.