The forthright branding of Israel as an apartheid state by Human Rights Watch could be a watershed moment in mainstream acceptance of what Israel has become. Human Rights Watch is not an outlier or left wing organisation. It is very much a part of the establishment in the United States and is not generally associated with hard hitting criticism that conflicts with the promoted interests of the American state. Kenneth Roth, the Human Rights Watch CEO who has been in power longer than Putin, is a darling of the New York liberal and Democratic Party Establishment. That is an important financial source for HRW and includes many members of New York’s highly altruistic liberal Jewish community (who I should declare have frequently hosted me).
Shortly before I formally left the FCO in 2005, I was shortlisted for a position as Global Advocacy Director for Human Rights Watch and flown to New York to be interviewed by Kenneth Roth in their offices – which if memory serves were very plush and actually in the Empire State Building. Having worked closely with Human Rights Watch in Uzbekistan and elsewhere, I was reasonably confident, and I was surprised when the interview was cold and almost hostile. Kenneth Roth asked me questions exclusively about Israel. I very distinctly recall that he said that I had been describing human rights abuses as perpetrated by governments, but did terrorist offences not also grossly violate the human rights of their victims? He specifically referenced Palestinian terror attacks as being detrimental to the human rights of Israelis.
I replied to the effect that terrorist offences were to me a matter of criminal law as any other assault or murder, whereas human rights abuses were perpetrated by governments or sometimes, in conflict situations, others wielding control and authority. I also referenced the need to bear in mind the imbalance in Israeli/Palestinian infliction of violence. A number of other Israel specific questions followed, which were increasingly unfriendly, and it was plain that Roth was looking for an expression of firm condemnation of the Palestinians, which I did not give, while I did state that violence against innocent civilian targets was never legitimate.
Anyway, I did not get the job which went, perhaps significantly, to an ex US State Department employee with no visible record of dissent. I remember pondering, on the flight back across the Atlantic, that I had been a civil servant for 22 years and forbidden from expressing political opinions. I had said nothing which was not British government policy on Israel since 1984. You would have to go back to my student days and membership of Friends of Palestine to find in public any private views of mine on the Middle East (which from pre-internet days would not be readily discovered). I was wondering who had briefed Roth, and my thoughts turned in obvious directions.
I give that background so you understand how much it has taken for Human Rights Watch to conclude that Israel is now an apartheid state and how far they have come. This cannot be dismissed as “the usual suspects”. Furthermore, the report is a formal legal analysis of what constitutes the crime of apartheid and whether Israeli actions and statutes meet that bar, and it concludes that Israel is an apartheid state not as a matter of political categorisation, but in a formal, legal sense. Roth is respected as a lawyer and Human Rights Watch is an organisation to which people, not just in State Department but at senior levels of the Biden Administration, genuinely listen if not always taking heed.
It is worth reproducing the Human Rights Watch Press Release in full:
Israeli authorities are committing the crimes against humanity of apartheid and persecution, Human Rights Watch said in a report released today. The finding is based on an overarching Israeli government policy to maintain the domination by Jewish Israelis over Palestinians and grave abuses committed against Palestinians living in the occupied territory, including East Jerusalem.
The 213-page report, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution,” examines Israel’s treatment of Palestinians. It presents the present-day reality of a single authority, the Israeli government, ruling primarily over the area between the Jordan River and Mediterranean Sea, populated by two groups of roughly equal size, and methodologically privileging Jewish Israelis while repressing Palestinians, most severely in the occupied territory.
“Prominent voices have warned for years that apartheid lurks just around the corner if the trajectory of Israel’s rule over Palestinians does not change,” said Kenneth Roth, executive director of Human Rights Watch. “This detailed study shows that Israeli authorities have already turned that corner and today are committing the crimes against humanity of apartheid and persecution.”
The finding of apartheid and persecution does not change the legal status of the occupied territory, made up of the West Bank, including East Jerusalem, and Gaza, or the factual reality of occupation.
Originally coined in relation to South Africa, apartheid today is a universal legal term. The prohibition against particularly severe institutional discrimination and oppression or apartheid constitutes a core principle of international law. The 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and the 1998 Rome Statute to the International Criminal Court (ICC) define apartheid as a crime against humanity consisting of three primary elements:
An intent to maintain domination by one racial group over another.
A context of systematic oppression by the dominant group over the marginalized group.
The reference to a racial group is understood today to address not only treatment on the basis of genetic traits but also treatment on the basis of descent and national or ethnic origin, as defined in the International Convention on the Elimination of all Forms of Racial Discrimination. Human Rights Watch applies this broader understanding of race.
The crime against humanity of persecution, as defined under the Rome Statute and customary international law, consists of severe deprivation of fundamental rights of a racial, ethnic, or other group with discriminatory intent.
Human Rights Watch found that the elements of the crimes come together in the occupied territory, as part of a single Israeli government policy. That policy is to maintain the domination by Jewish Israelis over Palestinians across Israel and the occupied territory. It is coupled in the occupied territory with systematic oppression and inhumane acts against Palestinians living there.
Drawing on years of human rights documentation, case studies, and a review of government planning documents, statements by officials, and other sources, Human Rights Watch compared policies and practices toward Palestinians in the occupied territory and Israel with those concerning Jewish Israelis living in the same areas. Human Rights Watch wrote to the Israeli government in July 2020, soliciting its perspectives on these issues, but has received no response.
Across Israel and the occupied territory, Israeli authorities have sought to maximize the land available for Jewish communities and to concentrate most Palestinians in dense population centers. The authorities have adopted policies to mitigate what they have openly described as a “demographic threat” from Palestinians. In Jerusalem, for example, the government’s plan for the municipality, including both the west and occupied east parts of the city, sets the goal of “maintaining a solid Jewish majority in the city” and even specifies the demographic ratios it hopes to maintain.
To maintain domination, Israeli authorities systematically discriminate against Palestinians. The institutional discrimination that Palestinian citizens of Israel face includes laws that allow hundreds of small Jewish towns to effectively exclude Palestinians and budgets that allocate only a fraction of resources to Palestinian schools as compared to those that serve Jewish Israeli children. In the occupied territory, the severity of the repression, including the imposition of draconian military rule on Palestinians while affording Jewish Israelis living in a segregated manner in the same territory their full rights under Israel’s rights-respecting civil law, amounts to the systematic oppression required for apartheid.
Israeli authorities have committed a range of abuses against Palestinians. Many of those in the occupied territory constitute severe abuses of fundamental rights and the inhumane acts again required for apartheid, including: sweeping movement restrictions in the form of the Gaza closure and a permit regime, confiscation of more than a third of the land in the West Bank, harsh conditions in parts of the West Bank that led to the forcible transfer of thousands of Palestinians out of their homes, denial of residency rights to hundreds of thousands of Palestinians and their relatives, and the suspension of basic civil rights to millions of Palestinians.
Many of the abuses at the core of the commission of these crimes, such as near-categorical denial of building permits to Palestinians and demolition of thousands of homes on the pretext of lacking permits, have no security justification. Others, such as Israel’s effective freeze on the population registry it manages in the occupied territory, which all but blocks family reunification for Palestinians living there and bars Gaza residents from living in the West Bank, use security as a pretext to further demographic goals. Even when security forms part of the motivation, it no more justifies apartheid and persecution than it would excessive force or torture, Human Rights Watch said.
“Denying millions of Palestinians their fundamental rights, without any legitimate security justification and solely because they are Palestinian and not Jewish, is not simply a matter of an abusive occupation,” Roth said. “These policies, which grant Jewish Israelis the same rights and privileges wherever they live and discriminate against Palestinians to varying degrees wherever they live, reflect a policy to privilege one people at the expense of another.”
Statements and actions by Israeli authorities in recent years, including the passage of a law with constitutional status in 2018 establishing Israel as the “nation-state of the Jewish people,” the growing body of laws that further privilege Israeli settlers in the West Bank and do not apply to Palestinians living in the same territory, as well as the massive expansion in recent years of settlements and accompanying infrastructure connecting settlements to Israel, have clarified their intent to maintain the domination by Jewish Israelis. The possibility that a future Israeli leader might someday forge a deal with Palestinians that dismantles the discriminatory system does not negate that reality today.
Israeli authorities should dismantle all forms of repression and discrimination that privilege Jewish Israelis at the expense of Palestinians, including with regards to freedom of movement, allocation of land and resources, access to water, electricity, and other services, and the granting of building permits.
The ICC Office of the Prosecutor should investigate and prosecute those credibly implicated in the crimes against humanity of apartheid and persecution. Countries should do so as well in accordance with their national laws under the principle of universal jurisdiction, and impose individual sanctions, including travel bans and asset freezes, on officials responsible for committing these crimes.
The findings of crimes against humanity should prompt the international community to reevaluate the nature of its engagement in Israel and Palestine and adopt an approach centered on human rights and accountability rather than solely on the stalled “peace process.” Countries should establish a UN commission of inquiry to investigate systematic discrimination and repression in Israel and Palestine and a UN global envoy for the crimes of persecution and apartheid with a mandate to mobilize international action to end persecution and apartheid worldwide.
Countries should condition arms sales and military and security assistance to Israel on Israeli authorities taking concrete and verifiable steps toward ending their commission of these crimes. Countries should vet agreements, cooperation schemes, and all forms of trade and dealing with Israel to screen for those directly contributing to committing the crimes, mitigate the human rights impacts and, where not possible, end activities and funding found to facilitate these serious crimes.
“While much of the world treats Israel’s half-century occupation as a temporary situation that a decades-long ‘peace process’ will soon cure, the oppression of Palestinians there has reached a threshold and a permanence that meets the definitions of the crimes of apartheid and persecution,” Roth said. “Those who strive for Israeli-Palestinian peace, whether a one or two-state solution or a confederation, should in the meantime recognize this reality for what it is and bring to bear the sorts of human rights tools needed to end it.”
I regret to say that because I am extremely preoccupied with my own legal case (which is of course largely its purpose) I have quickly read through the 223 page full report but not had time fully to study and analyse. It contains some very powerful graphics.
The strength of the report lies in its systematic comparison of the structural system of Israeli rule with the formal definition of the crime of Apartheid in the Statute of Rome and the Apartheid Convention, both widely ratified and important documents of international law. This perforce leads to less concentration than is possible on the outrageous acts of individual cruelty, but shows them to be systemic and part of a much wider design.
The Statute of Rome defines the international crime of apartheid as:
inhumane acts… committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.
The Apartheid Convention defines apartheid 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.
I do not believe anybody can sincerely deny that the situation in Palestine meets these criteria, even if attempts are made to justify how we got here. If you have not done so, you may like to read my previous personal article on why Israel is an apartheid state, which draws on my experience as FCO Desk Officer for South Africa when it was the original apartheid state.
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