Jewish Israeli and Palestinians as distinct ‘racial groups’ within the meaning of the crime of apartheid?

The Human Rights Watch (HRW) report ‘A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution’ is the newest addition to research reports (here, here and here) that conclude that the Israeli authorities have committed the crime against humanity of apartheid.

The report has been termed a “wake-up call”, an “explosive charge” and “morally damning”. According to one commentator, the use of the a-word gives the Palestinians “a new path to normalcy”, challenging its taboo in Israel. The media headlines suggest that the report is breaking new ground, yet there seems to be collective amnesia about the Report on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, in which the UN Special Rapporteur Richard Falk performed a detailed legal analysis of the crime against humanity of apartheid and concluded that evidence pointed to the commission of the crime (para. 77). There is also legal scholarship (here, here, and here) on the subject that suggests the application of the crime to the situation in the Occupied Palestinian Territories (OTP). The confirmation of an initiation of an investigation into the situation of Palestine by the prosecutor of the International Criminal Court (ICC) in March 2021 and the weeklong offensive in Gaza in May 2021 buttressed the charge that Israel is committing the crime against humanity of apartheid. These recent developments render the HRW report more timely than ever, since they “brought major change in how the Israel-Palestine conflict is perceived”. Noura Erakat and John Reynolds underscore that the legal claim of Israeli apartheid “most directly feeds into the mass popular mobilisation of Palestinian and global social movements”. This post deals with one element of the crime of apartheid, the ‘racial group’ and its analysis and application in the HRW Report.

The Crime against Humanity of Apartheid

The crime against humanity of apartheid as stipulated in Art. 7(1)(j) in conjunction with Art. 7(2)(h) of the Rome Statute of the ICC is only punishable if it has been committed “by one racial group over any other racial group or groups”. Art. 2 of the UN Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) contains a similar wording: “by one racial group of persons over any other racial group of persons”. While the crime criminalizes individual behaviour, it is part of an intergroup conflict in the psychological meaning of the term. Thus, the victims are targeted for their belonging to another racial group or groups, signifying a contrario that apartheid cannot be committed against members of the perpetrator’s own group. Moreover, apartheid can only be committed against members of a racial group.

‘Racial Group’

In discussing the crime of apartheid and the ‘racial group’, the HRW Report (pp. 31–34) refers to the Apartheid Convention, which Israel has not ratified. Palestine became a State Party in 2014. The Convention identifies numerous inhuman acts that all, except for Art. 2(f), contain a reference to the ‘racial group’. The Elements of Crimes of the Rome Statute, on the other hand, tone down the mention of ‘racial group’, which is only found in the fourth element (“The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups”). The domination over the other racial group is central to both definitions.

The HRW Report (p. 35) correctly points out that neither the Apartheid Convention nor the Rome Statute define the term ‘racial group’. With reference to the travaux préparatoires, the report suggests that the Apartheid Convention might have to be interpreted narrowly to mean “divisions based on skin color” (ibid.). While it is true that the drafting of the Convention was highly influenced by the events in Southern Africa – to the point that the Convention’s only purpose was to bring down the apartheid regime – it is too simplified to reduce ‘racial’ to skin colour. In the South African racial determination system, skin colour was but one element to determine racial group membership. For the case of South Africa, the black-white dichotomy might at first sight appear straightforward; however, the racial classification was challenging even for the authorities. In the classification not only complexion, but also hair structure and colour, language, traditions, and even sporting preferences played a role.

Human Rights Law for the Interpretation of International Criminal Law

The HRW Report argues that the understanding of race as implemented in the Rome Statute is broader, since, at the time of drafting, the apartheid regime in South Africa had ended and that in 1998, “international human rights law had clearly defined racial discrimination to include differences of ethnicity, descent, and national origin” (p. 35). With regard to the crime of apartheid in the Rome Statute, I would like to make two points on the reference to international human rights law:

First, international human rights law as codified in the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) has since 1969 defined ‘racial discrimination’ as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin” (Art. 1 (1) ICERD). Thus, the understanding of racial discrimination was arguably already broad(er) at the time of the drafting of the Apartheid Convention in 1974. Moreover, ‘racial discrimination’ cannot be juxtaposed to ‘racial group(s)’. This holds particularly true for Art. 7(2)(h) of the Rome Statute which, in the definition of the crime of apartheid, omits the word ‘discrimination’.

Second, the application of human rights law in the interpretation of an international crime is problematic for a number of reasons. International criminal law is governed by the principles of strict legality, foreseeability, and specificity. In recent years, the cross-fertilisation across different legal regimes has undoubtedly increased. Notwithstanding Richard Falk’s suggestion, it remains questionable to interpret a criminal provision by reverting to a concept of human rights law. International criminal law has different aims than human rights law, namely the “end to impunity for the perpetrators of (…) crimes and thus to contribute to the prevention of such crimes” (Preamble Rome Statute), whereas human rights law inhibits a state’s interference into an individual’s rights. The former must always be interpreted strictly, while respecting the procedural rights of the accused, while the latter will generally be interpreted broadly in order to provide individuals more rights and freedoms. Often, human rights law is interpreted dynamically, thus removing the foreseeability and specificity upon which international criminal law rests. Art. 21(3) of the Rome Statute notably holds that “the application and interpretation of law (…) must be consistent with internationally recognized human rights”, but has been interpreted to be of relevance to procedural matters only. By removing the accessibility of human rights law for the interpretation of a criminal provision, the relevance of the Committee on the Elimination of All Forms of Racial Discrimination (CERD)’s observations, which the HRW report uses for the broader definition of race (pp. 35–36), becomes marginal.

Another point of consideration is the fact that CERD subsumes national, ethnic, and racial groups under the definition of ‘racial discrimination’, as the HRW report states on page 36. Arguably, this blurring of definitional lines between (minority) groups that are targeted for belonging to a group other than the perpetrator’s, does not cohere to the strict definition of the law of apartheid, which solely protects members of racial groups. Had the drafters of the Apartheid Convention, which was signed nine years after the ICERD, wished to include groups other than the racial group, they could have broadened the protection based on already existing human rights law. The same argument goes for the Rome Statute, which consciously reproduced the scope from the Apartheid Convention to solely protect members of racial group(s).

Genetics and Biology

If neither ICERD nor other human rights law should be used as a reference, how then should the ‘racial group’ of the crime of apartheid be defined? The short answer is: certainly not as “constituting only genetic traits” (HRW Report, p. 36). We must, by all means, avoid repeating grave mistakes of the past that defined race as biological traits that are inherited, passed down along bloodlines. This conception is the foundation of eugenics, racial hygiene and genocide. Race is a deeply problematic concept based on an understanding of group hierarchies. The wording of Art. 7(2)(h) of the Rome Statute of “regime of systematic oppression and domination” implicitly refers to this hierarchical idea. Importantly, race is real because thoughts, perceptions and behaviour are constructed upon it, but it has no biological foundation.

Conclusion: Jewish Israeli and Palestinians as distinct ‘racial groups’?

The HRW Report (p. 36) correctly concludes that the existing case law on genocide evaluates the (racial) victim group membership based on the perpetrator’s construction of group identity, thus abolishing earlier approaches that focused on ‘hereditary physical traits’. The question remains whether case law on genocide should be relevant for the interpretation of another crime. The author asserts that the interpretation of ‘racial’ for both crimes is indeed the same. Both crimes are perpetrated against a (minority) group that is understood as belonging to a hierarchically lower level of mankind, building on the idea of the so-called great chain of being. This understanding would typically manifest itself in an ingrained belief that the members of the ‘racial group’ are of a lesser value, with lesser intelligence, worth, dignity, and hence humanness. Hand-in-hand with this conviction come stigmatization and discrimination. In the context of apartheid and genocide, where individuals are targeted solely for their (perceived) group membership, ‘racial group’ ought to be defined as the perpetrator’s understanding of the racial otherness of the victim group, thereby connecting to the mens rea. As such, there are no pre-defined criteria to determine the ‘race’, but it is based on the perception of their race, which commonly involves elements of phenotype.

On par with the HRW report, this post also abstains from performing a legal classification of the Jewish Israeli and Palestinian group identities. In academic circles, the discrimination and oppression of Palestinians due to their group membership seems largely uncontested. Yet, for the reasons mentioned above, the report’s statement that “Jewish Israelis and Palestinians are regarded as separate identity groups that fall within the broad understanding of ‘racial group’ under international human rights law” remains problematic for the application of international criminal law in general and the crime against humanity of apartheid in particular. Nonetheless, the Palestinians are discriminated, stigmatized, and targeted due their group membership, which in all likelihood is based on an understanding of their lesser value and (racial) inferiority. Note that the recently adopted resolution by the Human Rights Council inter aliarefers to “discrimination and repression based on (…) racial (…) identity”.

In the view of those Israeli state officials (and parts of the Israeli population) presumably maintaining an institutionalized regime of group oppression and domination, Palestinians are the ‘others’, a separate, ostensible distinguishable, identity group. In seeing the Palestinians as one – and arguably as a racial one – any other identity markers are erased. Moreover, the characteristics that distinguish Palestinians from Jewish Israeli are determined and defined by the aggressors themselves; if they involve a racialized perception of the Palestinian group membership, the ‘racial group’ element of the crime against humanity of apartheid is likely fulfilled.