By Anne Herzberg, Legal Advisor of NGO Monitor
On 5-9 July 2021, EJIL:Talk!, an influential international law blog, hosted a symposium on “Apartheid in Israel/Palestine”. According to Marko Milanovic, co-editor of the blog, its purpose is to discuss legal issues related to the “increasing trend amongst human rights activists and NGOs of labelling Israel’s policies towards the Palestinians as constituting apartheid”, and specifically to focus on Human Rights Watch’s (HRW) April 2021 publication, A Threshold Crossed. The symposium does not purport to be a comprehensive examination. Rather, it is intended to explore whether and how the crime against humanity of apartheid, initially proscribed specifically in relation to the situation in southern Africa, might be applied to other situations; additionally, as Milanovic noted, how “labels such as apartheid” are employed to create political narratives to “mobiliz[e] and (de)legitimiz[e] power.”
The charge of apartheid against Israel is not new, nor does it reflect a novel or increasing trend.1 However, the five articles written for the symposium and HRW’s response are illuminating in two respects: first, they provide confirmation that the central agenda of the “apartheid campaign” is to delegitimize and demonize Zionism and the existence of Israel within any borders; and second, that HRW’s Threshold is based on an invented legal definition. HRW’s artificial and manipulative process under the façade of systematic legal analysis is used to provide support for, and mutually reinforces, the political objective – to delegitimize Jewish self-determination. HRW’s response also reflects what can (charitably) be described as ongoing incoherence concerning their methodologies, policies, and control over media coverage.
Predictably, the contributions offered by Noura Erakat (Rutgers University and associated with multiple Palestinian NGOs) and Rania Muhareb (Al Haq) attack Israel’s legitimacy as a Jewish state, regardless of borders. Erakat’s post is an historically false screed, labeling Zionism as “defined by discrimination”. Erakat promotes conspiratorial theories, including that “Israel is manifesting to the world what Palestinians have long known: it wants the land without the people and seeks to remain the sole source of authority from the Jordan River to the Mediterranean Sea.” Erakat invokes the calumny, popularized in the 1920s by the antisemite Henry Ford and later revived by the neo-Nazi, KKK Grand Wizard David Duke, of “Jewish supremacy”. Erakat’s conspiracies, rejection of Jewish self-determination, and characterization of Israel as racist could be considered as antisemitism under the International Holocaust Remembrance Association Working Definition.2 It is hard to imagine that a post expressing similar sentiments directed at any other ethnic or religious group would have been published. For example, how many academics in the field of international law call for the dismantling of India because of the 1947 partition and allegations of ongoing discrimination against its Muslim population, much less advocate for it in a highly respected legal publication.
Carola Lingaas, a Norwegian academic, and Joshua Kern, Barrister at 9 Bedford Row and counsel to the Institute for NGO Research, offers in-depth analyses of the legal definition of apartheid, noting material differences between the standards delineated in international legal instruments and those posited by HRW. Professor Eugene Kontorovich details the factual and political distortions endemic throughout Threshold.
The final post of the symposium is HRW’s response. HRW’s piece, rather than providing a rebuttal to the points addressed, instead highlights many of the inconsistencies inherent to Threshold’s argument, and raises further questions regarding the report’s drafting and publication.
HRW’s response is authored by Clive Baldwin, its senior legal advisor, and an external consultant, Emilie Max. Omar Shakir, head of HRW’s Israel and Palestine Desk (and credited as lead author and researcher of Threshold) and Eric Goldstein, acting Director of HRW’s Mid-East North Africa Division (and Threshold’s lead editor) are not mentioned. Baldwin and Max are not listed as primary authors, editors, or researchers of Threshold, but are credited in the HRW publication as providing “program and legal review” and “contributing to legal research” respectively. It is notable that Baldwin and Max were chosen to author the EJIL:Talk! response and not Shakir, who has been the public face of Threshold to the media and associated lobbying activities. And as we will demonstrate, many of Shakir’s public statements and lobbying efforts subsequent to the publication of the symposium directly contradict Baldwin and Max’s EJIL:Talk! response.
HRW’s Legal Inconsistencies
A central component of HRW’s EJIL:Talk! response is that it seeks to justify the legal definition of apartheid created specifically for Threshold. Primarily, Baldwin and Max attempt to support HRW’s claim that the report’s definition reflects the international legal standard for the international crime against humanity of apartheid and that it is consistent with HRW’s legal methodology in other conflict situations.3
Neither contention is accurate.
Baldwin and Max claim that “the definitions of the crime of apartheid under both the Apartheid Convention and the Rome Statute were met in the context of Israeli officials’ actions” and they assert that the “crime of apartheid” consists of three elements: “(1) an intent to dominate by one racial group over another; (2) systematic oppression by the dominant group over the marginalized group; and (3) inhumane acts.”
But, as demonstrated by Joshua Kern, the definition offered by HRW is found neither in the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) nor in the Rome Statute of the International Criminal Court (Rome Statute), and equally cannot be found in customary international law. Even as Baldwin and Max seek to clarify and defend the definition created by HRW for this specific purpose, they fail to do so, and instead conflate elements found in the International Convention on the Elimination of Racial Discrimination (ICERD), the Apartheid Convention, and the Rome Statute. Carola Lingaas’s post also demonstrates that HRW’s submitted definition of the element of “racial group” – adopting the definition under the ICERD – is broader than that provided for by international criminal law. Ultimately, Baldwin and Max admit that there “are differences between the definitions.”4
Throughout their response, Baldwin and Max emphasize HRW’s supposed commitment to evenhandedness and legal principle, even as they cut the cloth for an invented definition of apartheid fashioned especially for Israel. Apparently aware of their transparently weak claim, Baldwin and Max insist, in contrast to the evidence, that the “Human Rights Watch mandate… is focused on impartially applying the facts to the law”. They assert that “this report – just like all our other research around the world – applies the facts as we researched them to the relevant international law at the time of publication”. And they cite to HRW’s reporting on Myanmar, where HRW has also alleged commission of the crime against humanity of apartheid.
Review of HRW’s analysis of Myanmar, linked by Baldwin and Max, however proves that HRW did apply a unique standard to Israel that differs fundamentally from that adopted by HRW in Myanmar. HRW’s definition of apartheid in its Myanmar reporting (here) does not correspond to that applied in Threshold. Moreover, in the Myanmar context HRW acknowledges the lack of specificity and ambiguity in defining the crime, and hews more closely to the standard definition and elements as detailed by Kern and Lingaas. In particular, with respect to Myanmar, HRW notes that the Rome Statute “would appear to limit the crime’s application to states, excluding non-state groups promoting racial supremacy, and to the worst institutionalized instances of racial domination.” In contrast, in Threshold, HRW defines the elements of domination and oppression in such a way that any situation of belligerent occupation would arguably be caught in the broad net of the crime’s chapeau elements.
For instance, HRW defines the element of domination as “control”, (apparently in an effort to mirror the definition of belligerent occupation under Article 42 of the 1907 Hague Convention) and decontextualizing the interpretation of the term as it is understood under the Apartheid Convention and Rome Statute. As demonstrated by Kern, however, in the context of apartheid, “domination” has a specific meaning reflecting the racial (white) supremacy inherent in the apartheid system practiced in southern Africa. Neither Baldwin, Max nor HRW in any other framework have deigned to engage with this analysis. Yet doing so is necessary in order to clarify the nature of apartheid as an aggravated form of racial discrimination. The watering down and transformation of the essence of the crime by HRW is an insult to victims of apartheid in South Africa.
It is also curious that, although Baldwin and Max create the façade of a principled legal stance by referencing the definition of apartheid HRW applied in Myanmar, they make no mention of that situation in Threshold, neither of the legal definition of apartheid proposed by HRW in relation to it, nor that it differs from the definition adopted in Threshold.
Baldwin and Max reject Kern’s suggestion that application of a “reasonableness” standard might inform whether executive and legislative action or policy constitute systematic oppression. The authors claim that an assessment of an action’s reasonableness “should rarely, if ever, be a defence that negates or excuses crimes against humanity”. This backwards reasoning labels acts as crimes against humanity before offering or applying any standard by which they can be assessed. Instead of contesting the substance of Kern’s argument, they offer the bromide that “acts amounting” to the “most extreme form [of racial discrimination] should not be considered acceptable or excusable due to considerations of policy.”
The standard of reasonableness, as explained by Kern was posited by Judge Tanaka in his dissenting opinion in the 1966 South West Africa Advisory Opinion as a measure to assess the consistency of discriminatory acts or policies with prohibitions against non-discrimination and inequality under international law. Kern argued that this reasoning provides a solid foundation for assessing oppression in this context. The application of similar formulations is ubiquitous in domestic and international courts and quasi-judicial bodies.
To support their attack on the appropriateness of applying a reasonableness standard to the element of oppression, Baldwin and Max cite to the European Court of Human Rights (ECtHR) case of Sejdić and Finci. Yet, this case, which HRW interprets as rejecting the standard of reasonableness, in fact explicitly adopts the type of reasonableness standard suggested by Kern.
In Sejdić, Jewish and Roma individuals challenged the legality of the provision of the Bosnian constitution, adopted as part of the 1995 Dayton Agreement, which barred them from standing for election to the House of Peoples or serving as President of Bosnia and Herzegovina. The constitution limited membership in the House of Peoples and the Presidency to “constituent peoples” defined solely as Bosniaks, Croats, and Serbs.
In examining whether the constitutional provision accorded with the European Convention on Human Rights, the Court laid out a reasonableness test:
42. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among many authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 81, ECHR 2009). The scope of a Contracting Party’s margin of appreciation in this sphere will vary according to the circumstances, the subject matter and the background (ibid., § 82).
44. In this context, where a difference in treatment is based on race or ethnicity, the notion of objective and reasonable justification must be interpreted as strictly as possible (see H. and Others, cited above, § 196). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (ibid., §176).
That being said, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article [citations omitted].
While the Grand Chamber acknowledged that, at the time of the Dayton Accords, the interest of peace may have provided sufficient justification of the power sharing provisions in the constitution, it had to examine the provisions’ legality in light of Bosnia’s adoption of the Strasbourg Convention and other commitments made subsequently. In these circumstances, the maintenance of the policy excluding non-constituent peoples could not be sustained. This nuanced analysis was completely and blatantly omitted by Baldwin and Max.
Even more strangely, Baldwin and Max ignore the very text of Threshold in which HRW applies a reasonableness standard in concluding that Israeli policies “fail any reasonable balancing test between security concerns and the severity of the underlying rights abuse” (p. 8).
Disingenuous Invitation for Dialogue
HRW’s post is put forward with the pretense of participating in the spirit of legal debate and good faith dialogue. For instance, Baldwin and Max state, “We look forward to a robust exchange on these and other issues in the days and months to come.”
These sentiments are disingenuous.
While Baldwin and Max claim to seek a “robust exchange” on Threshold, senior HRW officials centrally involved in publicizing and lobbying for it appear to have blocked such interactions. For instance, to coincide with Threshold’s publication, HRW launched an extensive PR campaign complete with press releases, infographics, video, talking points, opeds, and dozens of media appearances. There was a notable absence, however, of live debate between HRW officials and critics. Rather, HRW tightly controlled its messaging and appeared to act consistently in order to avoid any direct challenge.
Pointedly, following the EJIL:Talk! Symposium, rather than engage on the substance and participate in a “robust exchange”, HRW officials such as Ken Roth and Omar Shakir levied many false and ad hominen attacks. For example, in a July 16 interview with Al Jazeera, Shakir claimed, “We’re not writing legal briefs or making legal arguments,” when the entire 213-page Threshold was styled as a legal brief levying legal arguments.
On Twitter, Shakir egregiously stated “Missing among the commentaries on @hrw apartheid report has been virtually any substantial challenge to the findings. A settler & an advisor to NGOM try in @ejiltalk, but best they could come up w is (off-base) criticism at margins of definitions of terms & strawmen. Our response” (July 9)
Ken Roth added, “Human Rights Watch responds to the various legal ‘defenses’ (they fall far short of a real defense) against the overwhelming evidence that the Israeli government is committing the crimes against humanity of persecution and apartheid. https://hrw.org/news/2021/07/09/human-rights-watch-responds-reflections-apartheid-and-persecution-international-law…” (July 9)
Shakir also claimed to Al Jazeera that
“There has been an absence of substantive challenges to the report. There has been much coverage of the report. Those who are critical of the report have used either ad hominem attacks or strawmen arguments … No one said HRW got the facts wrong or that the elements of the definition of apartheid were not met. It is telling that we did not receive almost any substantive challenges on questions of law or definitions for example.”
The assertion that there were “no legal defenses offered” or that “they fall short of a real defense” ignores the very thorough and considered arguments of Lingaas, Kern, and Kontorovich which each demonstrated substantive problems in HRW’s legal analysis both factually and legally. Moreover, the invocation of “strawmen” is ironic, given that neither Shakir nor Roth provided any identification of who or what those strawmen might be, in order to avoid having to refute the substantive arguments.
An article published by Shakir in Zenith magazine on 19 July, more than a week after his colleagues posted their piece on EJIL, is also instructive. Shakir not only fails to engage with the legal arguments made by Kern, Lingaas, and Kontorovich, but also contradicts those of his colleagues. For instance, instead of acknowledging (as did Baldwin and Max) that HRW’s proffered definition of apartheid differs from both the Apartheid Convention and the Rome Statute, that the standards in both instruments are not identical, and that HRW cobbled together various elements to create a definition of its own, Shakir claims that “international treaties define apartheid as a universal legal term” and offers up HRW’s invented elements as the definition of the crime under both the Convention and the Rome Statute. This statement is all the more egregious given that Kern clearly had shown – and Baldwin and Max had accepted – that there is no “universal” legal definition of apartheid. Similarly, Shakir again advanced a conception of “racial group” based on international human rights law that Lingaas had shown to not to be accepted under international criminal law.
Advancing a 1948 Eliminationist Agenda
Finally, while HRW claims that they found “the three elements [made up by HRW] of the crime of apartheid all come together in the OPT,” and despite the protestations by Baldwin and Max that HRW does “not use the term ‘apartheid state’” for Israel, and is not out “to render judgement on the character of an entire state”, that this is precisely the purpose of Threshold is also evidenced by their post. Indeed, Baldwin and Max appear to invoke “River to the Sea” rhetoric, utilized by Palestinians as a euphemism for eliminating Israel, claiming that there is a “single Israeli government policy” to “maintain the domination of Jewish Israelis over Palestinians from the Jordan River to the Mediterranean Sea.”
Since the publication of Threshold, BDS campaigning has accelerated, as well as antisemitic attacks invoking the apartheid canard. On their own terms, the objectives of such campaigns are not about ending the military administration that has existed in the West Bank since 1967 nor the establishing of two states for two peoples living side-by-side in peace and security, but rather, to dismantle of the State of Israel altogether, and turn the clock back to 1948.5
The legal double standards, inflammatory rhetoric and blatant hypocrisy that characterizes Threshold, and Baldwin and Max’s inchoate defense, lead to one clear conclusion: that HRW’s objective here is to support and further the eliminationist strategy.
- The maligning of Israeli statehood and Jewish self-determination as “apartheid” was a central feature of Cold War politics, particularly in UN frameworks beginning in the 1950s. See Gerald M. Steinberg and Anne Herzberg, “The Role of International Legal and Justice Discourse in Promoting the New Antisemitism,” in Anti-Zionism and Antisemitism (Alvin H. Rosenfeld, ed., Indiana University Press 2019). This charge was revived by the Organization of Islamic Cooperation and the NGO Forum during the 2001 UN World Conference Against Racism and has continued and expanded since.
- Erakat brands Jewish self-determination as a “racist structure since its inception”. Under the IHRA Working Definition, “Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions”; “Using the symbols and images associated with classic antisemitism … to characterize Israel or Israelis”; and “denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor”, are expressions of antisemitism. Erakat also solely blames Israel for the lack of Palestinian statehood, ignoring the multiple rejections of a peace agreements by the PLO and the Palestinian campaign of mass terrorism. Ironically, Erakat undercuts her entire argument that Israel is responsible for “torpedoing” the peace process by demonstrating in her post that the Palestinian political movement is founded upon the rejection of the existence of Israel altogether. Similarly, she claims Zionism is not a legitimate movement of self-determination that requires “dismantlement” and quotes the radical Arab lawyer, Abdeen Jabara: “No man or people may achieve national liberation at the expense of another people.” Again, Erakat fails to appreciate the irony that under her own standard, her promotion of Palestinian “liberation” while advocating for the dismantlement of Zionism, negates her claims.
- “Human Rights Watch based its findings on the definition of the crime against humanity of apartheid in international criminal law” and “Our detailed review of the facts on the ground led us to determine, for example, in 2020, that the authorities in Myanmar were committing the crimes against humanity of apartheid and persecution, among others, against ethnic Rohingya in Rakhine State.”
- HRW also bases its application of the Apartheid Convention and the Rome Statute on the supposed 2014 accession by the “State of Palestine”. Israel, however, is not a party to either treaty and HRW does not explain the relevance of Palestinian accession on Israel or why Israel would be bound by international agreements to which it is not a party.
- Erakat’s post embodies this extremist posture. She belittles the internationally endorsed peace process (“At that very moment of South African and Namibian liberation, Zionist settler colonization and apartheid found a new lifeline in the Oslo “peace process”); slanders Israel as irredeemably racist (“Israel did not become a discriminatory regime but is defined by such discrimination.”); and advocates for its dismantling (“I will conclude with thoughts on the international responsibility to end the apartheid of our time”).
This article was originally published by NGO Monitor on August 11, 2021