The Apartheid Accusation Against Israel is Baseless – and Agenda-Driven

Human Rights Watch’s new report accusing Israel of the crime of apartheid is, despite its length, a propaganda document: full of falsehoods and distortions. The world it describes is an alternate reality. Addressing a document so agenda-driven and skewed presents the challenge of dealing with Big Lies: merely engaging with them gives at least some credibility to its seriousness and normalizes sensationalistic accusations against the Jewish State. This very forum on EJIL is part of the problem: like arguing with COVID hoaxers, the mere exercise is self-defeating for those critical of the HRW argument.

The extraordinary thing about such an accusation, is that even if its supporters to not fully convince people of its truth, they succeed in leaving a delegitimizing stain. This response cannot attempt to rebut all of the lengthy manifesto, or even point out some of its factual misstatements. (For that, see pages 5-9 of this paper, from which some of the material of this post was also drawn.) Thus this is at most a very partial response. The goal here will be to point out some fundamental methodological errors, as well as features of the report that cast its very credibility into question.

Israel may well be engaged in harmful and illegal practices – as is the case with many Western democracies whose legitimacy is taken for granted. Indeed, many have come to regard the United States as fundamentally rooted in systemic racism and built on slavery – profoundly serious accusations, yet ones that do not get the “apartheid” label from HRW or other groups professing to base their claims in international law. Many of the policies that HRW points out can be subject to legitimate criticism, as is the purported practice by police in the U.S. of extrajudicial executions of blacks.

The significance of the apartheid label goes beyond particular policies, and invites efforts at regime change. Only one country has been internationally regarded as an “apartheid” state before – South Africa, whose language gave rise the name. It was met with an international boycott that ultimately led to the collapse of the regime. Not coincidentally, anti-Israel political activism now goes primarily under the brand “BDS” – boycott, divest, and sanctions. The apartheid label is an attempt to justify that.

Just to establish some groundwork to suggest how outlandish the report is. HRW’s position is so extreme, it goes beyond even the positions of some of Israel’s opponents, such as PA President Mahmoud Abbas, or critics such as the International Criminal Court. In a speech just weeks before the HRW report, Abbas made clear that Israel is not currently an apartheid state (though he did not rule out it “eventually” becoming one). The International Criminal Court has been investigating potential crimes by Israel for years, and yet the Office of the Prosecutor has never mentioned apartheid as part of its investigation.

Just a few months after the report was released, Israel formed a new government with not only numerous Arabs in it, but an ideologically Arab, Islamist party holding decisive power. Thus the supposedly apartheid state is one of the only one in the Middle East with a Muslim Brotherhood party in government, as opposed to repressed by the state.

Perhaps the fundamental methodological problem with the report – beyond its misstatement and distortions – is that it does not begin with any objective or measurable standard for what practices amount to apartheid. Extraordinary racist policies are pervasive around the world, with the genocidal treatment of Uighurs, Tibetans, and other minorities in China a compelling example. Yet while HRW has criticized particular practices of other governments as being apartheid in nature, it has never accused a government of being itself an apartheid regime.

As a result, there is no baseline for its accusations. Rather, the methodology of the report is simply to describe what Israel is doing (or in some cases had done decades ago, or in some cases has never done) and equate it with apartheid, without a need to bother with precedent or objective measurement. HRW throws its darts and then draws the target around them.

Take, for example, a regime that HRW has not accused of apartheid, in whole or part. Imagine a government that bans land sales to a minority group on pain of death, actually pays bounties for the extrajudicial killing of members of that group, while maintain a system of racist education demonizing that group. Would that meet HRW’s definition of apartheid? Apparently not, because those are the official policies of Palestine against Jews. Yet in a lengthy report on apartheid and the Palestinians, HRW does not mention any of this even once. That further demonstrates that its work is an advocacy document, not a serious discussion of the crime in particular geopolitical context.

Similarly, the report uses racist language, referring to all Arabs in the area as “Palestinians,” though many of them are Druze, Bedouin, or Circassians. The negation of these national identities in the name of Palestinian supremacy further reveals activist nature of the HRW report.

HRW accuses Israel of apartheid for its Nation State law, which is a largely symbolic and declaratory measure about national identity no different from the collective identity provisions of many European constitutions. The law has does not regulate Palestinians or Israeli Arabs in any way, and it is perverse to equate it with “inhumane acts” of murder, enslavement and the like required by the legal definitions of apartheid.

The Apartheid Convention defines apartheid as a systematic policy of inhumane 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.” The Convention also establishes South African policies as the baseline for assessing whether policies amount to apartheid – “similar policies and practices of racial segregation and discrimination as practised in southern Africa.” Because the crime’s actus reus is fairly non-specific, and the intent element extremely specific but hard to assess in practice, the South African template is essential to assessing whether the crime has occurred. And perhaps it is because the South African practice was so distinctive that no other country’s practices have yet been broadly recognized by other states to amount to apartheid.

Thus a fundamental weakness of the report is its failure to examine what happened in South Africa and analogize to the case in question. Indeed, HRW may be aware of this failure – as it also invokes the Rome Statute definition of apartheid, which does not explicitly refer to South Africa as a baseline.  While the ICC has claimed jurisdiction over “Palestine,” it has not claimed any such jurisdiction within Israel’s borders. The Nation State law, and numerous other policies HRW point to, do not apply in what the ICC calls Palestinian territory.

The very essence of apartheid was the physical separation – apartness – of people based on a legislated racial hierarchy. There is no racial or ethnic distinctions in Israeli law. Under the South African Reservation of Separate Amenities Act of 1953, municipal grounds could be reserved for a particular race, creating, among other things, separate beaches, buses, hospitals, schools and universities. Inside of Israel there are no separation of this sort. In Judea and Samaria Israelis and Palestinians buy at the same stores, work together and etc. In South-Africa Public beaches, swimming pools, pedestrian bridges, drive-in cinema parking spaces, parks, and public toilets were segregated. Restaurants and hotels were required to bar blacks. In Israel and all territories under its jurisdiction, Palestinians patronize the same shops and restaurants as Jews do. It is true that Jews are de facto excluded from Palestinian-controlled territory, but that is not the apartheid HRW has in mind.

Under the Bantu Homelands Citizenship Act of 1970, the Government stripped black South Africans of their citizenship, which deprived them of their few remaining political and civil rights in South Africa. In parallel with the creation of the homelands, South Africa’s black population was subjected to a massive program of forced relocation. Israel did not dislocate Arabs citizens to the PLO territories or revoked citizenships.

The black “Bantustans” were created by the Apartheid government itself under a series of laws, which deported and relocated blacks into these areas. Because they were generally regarded as puppets of Pretoria, their supposed independence was not recognized by other countries. The Palestinian government was created by the Palestinians themselves and is recognized internationally as the legitimate representative of the Palestinian people by almost every country in the world. The Palestinian Authority governs 90% of the Palestinian population, as provided in the Oslo Accords.

Blacks in South Africa were deprived of their political rights. Israel Arabs have full voting rights for the Knesset, while Palestinians in the territories have voting rights for the Palestinian Legislative Council. Israeli citizens do not have voting rights in the Palestinian government, because it is a different and independent government. By the same token, Palestinians do not vote in the Knesset – not because it is apartheid, but because since the 1993 Oslo Accords, they have had their own government. The international community recognizes the independence of the Palestinian government, and there can be no denying that its decision-making is independent of, and antagonistic to, that of Israel. It would be hard to imagine the ICC admitting a Bantustan as a state party.

Unlike non-white South Africans, the Palestinians have been offered full statehood by Israel in numerous times – in internationally-backed and legitimized diplomatic processes. They have turned it down as many times. The repeated offers of full independence to the Palestinians themselves negate any intent of “maintaining domination” over them as required by the legal definitions of apartheid. The PA viewed the proposed diplomatic deals, which offered more than 97% of the West Bank as inadequate, in part because they required an end to the conflict. This is entirely unlike the South African model, where credible independence for a majority-black state was never on the table until the deal that ended the regime.

Another major methodological failing is that the report treats the Palestinian as silent objects, rather than as political actors who have shaped their own destiny. In particular, it ignores the reality of Palestinian self-government and systematic Palestinian efforts to murder Israeli Jews.  Yet since 1993 the Palestinians have had their own government, which regulates almost every aspect of their lives. Unlike South African Bantustans, the PA government is recognized by most countries of the world, and functions outside of Israeli control. Unlike South Africa, Israel does not tax the Palestinians, draft them, or impose other legislation upon them.

Under the Oslo Agreements, the PA government and Israel agreed on a framework for dividing authority and jurisdiction in areas where their governments and populations are intertwined. The HRW cites those very features as evidence of apartheid – in effect saying that the internationally-backed Oslo Accords, for which several Nobel Peace Prizes were awarded, is equivalent to apartheid, for which Nobel Peace Prizes were awarded to those who ended it. Gaza has been entirely ruled by Hamas since Israel withdrew in 2005.

By pretending the Palestinian government does not exist, the report remarkably ignores actual apartheid-like policies. The Palestinian Authority pays generous salaries to people simply for murdering Jews – with bigger payments for bigger attacks. It prohibits Palestinians – with severe penalties – from selling land to Jews. It indoctrinates children with anti-Semitic textbooks. These policies resemble apartheid, and are not found anywhere in the HRW’s long report. Indeed, the report speaks of “Israeli Palestinians,” but it never speaks of Jewish Palestinians – because the PA has created a regime where it is impossible for Jews to live in its jurisdiction, and actively campaigns for the expulsion of all Jews from the West Bank.

All of the movement restrictions and the Separation Wall were established not as far of a policy of racial separation, but only in response to the murderous wave of terror unleashed by the PA in 2000, which killed over 1000 Israelis. It is undisputable that such restrictions did not previously exist. HRW tries to paint self-defense as subjugation, and thus makes no mention of the mass-murder of Israeli civilians.

Indeed, the report whitewashes terrorism against Jews while smearing Israel. It refers to terror organization Hamas as a “political party.” In 13 references to the organization that rules Gaza, it never once acknowledges that Hamas is listed as a terrorist organization by Israel, the United States, the European Union and others. At 217 pages, HRW can hardly claim space constraints for such omissions. This is not the approach of an intellectually serious report, but of a politically-motivated campaign.