Uncomfortable truths: how HRW errs in its definition of “Israeli apartheid”, what is missing, and what are the implications?

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The discourse on apartheid in the Israeli-Palestinian context has evolved. Coinciding with the formal opening of an investigation by the ICC (as well as the admissibility decision in the inter-State proceedings initiated by Palestine before the CERD – see here), between January and June 2021 several organisations and authors – most notably Human Rights Watch (in A Threshold Crossed, here) – have alleged that Israeli officials are responsible for the crime against humanity of apartheid. It will be of concern to some readers, and no surprise to others, that in the discourse alleging commission of this crime, not one of these reports begins to undertake a complete legal analysis of its definition.

This post begins to explore some of the legal consequences of this position, where a grave allegation of crimes against humanity is being made by civil society actors and there is a subsisting absence in both scholarship and reporting on the content of the elements of the crime. It explores the problematic nature of the definition of the crime proposed by Human Rights Watch and argues that it lacks a legal basis in treaty or customary law. The post questions whether apartheid exists as a crime against humanity under customary international law at all, or simply exists as a customary inter-State prohibition and treaty crime. It argues that Human Rights Watch have manufactured a definition of apartheid which has been tailored to the facts (as they perceive them) and have failed to provide meaningful definitions to core elements of the crime. It accordingly proposes a suggested definition of the elements of “oppression” and “domination” of its own, and highlights some of the problems involved with their application to the Israeli-Palestinian conflict.

The Human Rights Watch definition of apartheid is incomplete and wrong

Human Rights Watch claim that the “crime of apartheid under the Apartheid Convention and Rome Statute consists of three primary elements: an intent to maintain a system of domination by one racial group over another; systematic oppression by one racial group over another; and one or more inhumane acts, as defined, carried out on a widespread or systematic basis pursuant to those policies” (A Threshold Crossed, p. 5-6).

This definition omits distinctions which exist between the Rome Statute’s and the Apartheid Convention’s definitions. For example, under the Rome Statute, the prosecution must prove the existence (actus reus) of a system of domination (in addition to systematic oppression) by one racial group over another. It is not enough simply to prove an intent (mens rea) to maintain such a system. With respect to the nature of the intent, the texts of the Apartheid Convention and the Rome Statute also differ. The Rome Statute’s mens rea encompasses the intent to maintain a regime of systematic oppression and domination by one racial group over another. The Apartheid Convention requires proof of acts committed for a “purpose” of establishing and maintaining domination by one racial group over another, and systematically oppressing them. 

The fact that the discourse fails to draw attention to these fundamentals is problematic for several reasons. It creates confusion between the lex lata and the lex ferenda. Teleological attempts to frame international crimes with the broadest possible definition are also inconsistent with the principle of legality and the presumption that the definitions of crimes shall be strictly construed.

Irrespective of intention, the effect is to steer the conversation away from the implications of the crime of apartheid’s unsettled nature and status under customary international law. (This is in contradistinction to the inter-State prohibition of apartheid which, considering near-universal ratification of its prohibition in the International Convention for the Elimination of All Forms of Racial Discrimination, appears beyond doubt.) However, Human Rights Watch do not address the customary status of the crime under customary international law or its lack thereof.

Professor Dugard and Dr Reynolds appeared to accept in 2013 (here) that it was doubtful that apartheid as a crime against humanity had crystallised under customary international law (regardless of whether its prohibition was of a peremptory nature). Considering the absence of universal acceptance of apartheid’s existence as a crime against humanity in either the Apartheid Convention or the Rome Statute, as well as its definition as such, and noting that Human Rights Watch do not even claim that its definition is grounded in customary international law, it cannot be argued that custom provides the basis for the proposed definition. As the definition elides the Rome Statute’s and the Apartheid Convention’s definitions together in an impermissibly expansive way (by omitting elements contained in both instruments which serve to limit the scope of the crime’s subject matter) and it is not argued that this exercise has been performed with regard to the views of States, to judicial authority, nor to any legal, moral or policy-based reasoning, the definition proposed by Human Rights Watch should be rejected.

The elements of apartheid as a crime against humanity under the Rome Statute

The discourse has also failed to offer clear definitions of the elements of the crime. Although it is clear that under the Rome Statute, the prosecution must prove the “the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups” (Article 7(2)(h)), a tribunal might reasonably ask how systematic “oppression” and “domination” are to be defined in this context. Similarly, what are the implications, if any, of classifying peoples as “racial groups” for these purposes? When considering these questions, as criminal lawyers it is necessary to establish clarity with respect to the content of each element of the crime.

Given uncertainty with respect to the customary status of apartheid as a crime against humanity, and further considering that the Rome Statute is the more widely ratified of the two instruments criminalising apartheid, the analysis which follows is grounded on the definition of the elements of the crime under the Rome Statute without prejudice to questions relating to preconditions to the exercise of ICC jurisdiction. Applying the Rome Statute scheme, Article 22(2) reminds us that the “definition of a crime shall be strictly construed and shall not be extended by analogy.” The elements of “domination” and “oppression” appear in the Rome Statute only in the context of apartheid (although proof of “psychological oppression” can also establish coercion for the purposes of criminal liability for rape, enforced prostitution, and sexual violence as war crimes). Because the Apartheid Convention and the Rome Statute encompass the same subject matter, i.e. the definition of apartheid as a crime against humanity, it would not offend the principle of legality to construe the definition of its elements under the Rome Statute by reference to their definition under the Apartheid Convention.

Under the Apartheid Convention, apartheid includes “similar policies and practices of racial segregation and discrimination as practised in southern Africa”. It is universally accepted that the policies and practices of the government of South Africa between 1948 and 1994 inform our understanding of the nature of apartheid. These policies and practices can therefore assist us when establishing how “domination” and “oppression” may be defined as elements of the crime under the Rome Statute. 

Domination may be informed by the concept of supremacy

Human Rights Watch assert that the element of “domination” lacks a “clear definition” but “appears in context to refer to an intent by one group to maintain heightened control over another, which can involve control over key levers of political power, land, and resources” (A Threshold Crossed, p. 39). This conception of the element of “domination” is erroneous not simply because it does not reflect that under the Rome Statute the element forms part of the crime’s actus reus, but also because it pays insufficient regard to the context of the practices and policies of apartheid in southern Africa.

Considering this context, the element of “domination” can be understood through practices of supremacy (baasskaap) and segregation. Writing in 1948, Naboth Mokgatle, a trade unionist, activist and writer, stated that apartheid “means total segregation of the African people and all non-Europeans in the country, permanent denial of human rights, permanent baasskaap, master race, and inferiority of anything non-white.” In December 1950, Hendrik Verwoerd, “Minister of Native Affairs” in the first National Party government, met with African members of the Native Representative Council and addressed them on the theory and practice of apartheid. He said inter alia that the “present Government adopts the attitude that it concedes and wishes to give to others precisely what it demands for itself. It believes in the supremacy (baasskap) of the European in his sphere but, then, it also believes equally in the supremacy (baasskap) of the Bantu in his own sphere…” (see Clark and Worger (2016), p.149-154).

 The concept of “domination” as “supremacy” (baasskaap) appears central both to Mokgatle’s and Verwoerd’s conceptions of apartheid, and it informs the definition of “domination” as an element of the crime against humanity of apartheid under the Rome Statute. In the Israeli-Palestinian context, however, taking Human Rights Watch’s analysis at its highest, it appears difficult to transpose the notion of “domination” as the type of racial supremacy described by Mokgatle and Verwoerd. Human Rights Watch argue that Israeli government policy is “to engineer and maintain a Jewish majority in Israel” and to “maximize Jewish Israeli control over land in Israel and the OPT” (A Threshold Crossed, p. 49). With respect to Israel, a policy intended to safeguard the Jewish character of the State and to protect its citizens’ security scarcely reflects the racism of baasskaap. On the contrary, recognition of Israel as a Jewish State has been integral to how the international community has addressed issues arising from the Israeli-Palestinian conflict since 1947 at the latest (when the General Assembly recommended partition between the “Jewish” and “Arab” States). With respect to the West Bank and Gaza, a policy to “maximize Jewish Israeli control over” the land cannot be said to exist when Israel has disengaged from Gaza, the Palestinian Authority exercises autonomy in Areas A and B of the West Bank, and the Israeli government has signalled its willingness to surrender control over up to 94% of the West Bank (see e.g. J. Heuberger, From the Madrid Conference to the Kerry Initiative(2016), p.64, here).

Oppression may be informed by the concept of reasonableness

Human Rights Watch assert that the element of “systematic oppression” is also without a clear definition but appears “to refer to the methods used to carry out an intent to maintain domination.” To qualify conduct as “systematic oppression” entails an assessment of the exercise of executive and adjudicative jurisdiction, policy, and legislation. The South-West Africa example suggests that by grounding the analysis in principles of equality and non-discrimination, assessments of reasonableness may operate as a basis to assess whether a discriminatory action or decision by a public body might be characterised as oppressive. Judge Tanaka (in his dissenting opinion in the 1966 South West Africa Advisory Opinion) prefigured Dworkin’s argument (in Taking Rights Seriously) by suggesting that “different treatment requires reasonableness to justify it” (p. 307). Such an assessment provides a methodological guide to a tribunal with jurisdiction when assessing whether a specific policy or practice is oppressive; indeed, this appears to have been recognised by the CERD (see CERD General Recommendation XXX, para. 24 “it shall be for the respondent to provide evidence of an objective and reasonable justification for … differential treatment”).

Assessments of the reasonableness of executive acts are, for example, central to determinations made by the Supreme Court of Israel with respect to the legality of measures which may discriminate on the basis of nationality: see, e.g. HCJ 2150/07, Ali Hussein Mahmoud Abu Safiyeh v Ministry of Defence (2008), Opinion of President D. Beinisch, para. 6, here). The significance of the Supreme Court’s jurisprudence is largely disregarded by Human Rights Watch, whose argument with respect to “systematic oppression” is more contingent on the fact of discriminatory measures rather than on detailed assessments of reasonableness. Israel’s application of the humanitarian provisions of the law of belligerent occupation may be viewed, for example, as reasonable in the circumstances. It may be argued that measures which discriminate between individuals through application of provisions of international humanitarian law should not be considered oppressive per se. There is a distinction between the Israeli-Palestinian case and the South African in that whereas in South Africa there was nothing that reasonably could be said to have impinged upon the ability of all South Africans to enjoy their fundamental rights equally absent the policy of apartheid, in the Israeli-Palestinian case it is the context of the conflict between Israel and the Palestinians, and separate citizenships reflecting distinct nationalities, which arguably give rise to discriminatory treatment. Such treatment’s qualification as “oppressive” must necessarily take this context into account.

Racial groups: Israeli Jews and Palestinians

 As a final matter, the discourse of apartheid relies on framing Israeli Jews and Arab Palestinians as “racial” groups to satisfy apartheid’s core element as an aggravated form of racial discrimination. International criminal lawyers will reflect on this analysis, which is grounded on the ICERD’s definition of racial discrimination, and which diverges from the approach adopted by the ad hoc international criminal tribunals when considering classification of national, ethnical, racial, or religious groups for the purpose of establishing liability for genocide.

The ICERD defines “racial discrimination” broadly as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (Article 1(1)). This classification can arguably be accepted for the purpose of establishing Jews and Palestinians as “racial groups” for the purposes of establishing liability for apartheid; however, it necessarily requires acceptance of both Jews and Palestinians as groups based on “descent” or “national or ethnic origin.”

Conclusion

The discourse on apartheid and racial discrimination in this context therefore takes us full circle. There is a nexus between Human Rights Watch’s apartheid allegation and the negation of Jewish self-determination. The discourse of racial discrimination requires acceptance of both Jews and Palestinians as national, ethnic, descent-based groups. Each possesses a self-determination claim which reflects a respective desire for a “Palestinian” State or a “Jewish” State. By framing these national aspirations and distinctions in the discourse of racial discrimination, while at the same time producing a selective and tailored definition of the crime of apartheid, Human Rights Watch’s contribution operates to undermine the Jewish people’s right to self-determination in favour of (claimed) equality between the two peoples. By seeking to dilute the means through which Israel is permitted to safeguard the Jewish people’s right to self-determination, Human Rights Watch themselves subvert the very same principle of equality that they would claim to be looking to protect. If Human Rights Watch wish to avoid further accusations of unequal treatment (e.g. here, here), they would do well to begin by reappraising their legal analysis of apartheid before looking to apply it to the facts of the Israeli-Palestinian conflict.

Joshua Kern is a barrister practising from 9 Bedford Row chambers in London. He is currently instructed by the Institute for NGO Research to advise on allegations of apartheid in the Israeli-Palestinian conflict. He is grateful to both Anne Herzberg and Dr Dov Jacobs for their thoughtful comments on this post in draft.

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R.B. says

July 9, 2021

I don't see the "uncomfortable truths" that the post promises to reveal. Rather there seems to be a conflation of Jewish self-determination and supremacy on part of the author. That Jewish self-determination in this case happens to translate into systematic discriminatory practices by the Israeli state (which HRW aptly evinced) is a fact that cannot be glossed over by reference to the international community's support for the two-state solution. Nor the erroneous insinuation that the Israeli state is concerned with peace and not what it surprisingly casually refers to as "the demographic problem". Furthermore, it seems to me that the author expects the Palestinian national aspiration, if materialized, to establish a permanent order that, similar to the Israeli constitution, distinguishes between the citizens of the country so to privilege the dominant national/ethnic group over minorities. If I'm interpreting this correctly, I wonder what this is based on? Finally, I'm certainly no lawyer but from what I understand external self-determination (which is what is alluded to in the post) based on ethnicity/nationality has no firm basis in international law. Instead external self-determination is based on territory. If I'm not mistaken, that has been the position of the ICJ at least. But I'll leave that for the lawyers to discuss if relevant.

Joshua Kern says

July 10, 2021

Dear RL, thank you for your comment. I wouldn’t accept that the concepts of “supremacy” and “self-determination” are conflated. I argue the concept of “supremacy” relates to defining the element of “domination” (which exists under both treaties which criminalise apartheid as a crime against humanity).

This is distinct from the link I suggest may exist between issues of self-determination and the definition of Israeli Jews and Arab Palestinians as “racial groups”. Carola Lingaas’s post (https://www.ejiltalk.org/jewish-israeli-and-palestinians-as-distinct-racial-groups-within-the-meaning-of-the-crime-of-apartheid/) provides an important counterpoint of view grounded in the nature of criminal law itself.

Your claim that “Jewish self-determination in this case happens to translate into systematic discriminatory practices by the Israeli state”, on my analysis, would be more apt to be considered under the head of “oppression”, inhumane acts and the chapeau elements of crimes against humanity.

There seems no doubt - perhaps this is something on which we can all agree - that the Israeli state is interested in preserving its Jewish character; my argument is that this is a pacific, legitimate objective which requires recognition rather than demonisation.