Jerusalem24 – Following the publishing of their report, “A Thresh hold crossed – Israeli Authorities and the Crimes of Apartheid and Persecution,” Human Rights Watch released a Q&A on their website answering common questions regarding their report.
You can find the Q&A on their website, or you can scroll down.
1. What is the crime against humanity of apartheid?
Apartheid is a crime against humanity, defined in the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court. It consists of three primary elements:
- An intent to maintain the domination by one group over another.
- A context of systematic oppression by one group over another.
- An inhumane act or acts.
Crimes against humanity consist of specific criminal acts – the Rome Statute identifies 11 such acts, including apartheid and persecution – committed as part of a widespread or systematic attack, or acts committed pursuant to a state or organizational policy, directed against a civilian population. They are among the most odious crimes in international law.
2.What is the crime against humanity of persecution?
Persecution is a crime against humanity, defined in the Rome Statute to the International Criminal Court and in customary international law. It involves the intentional and severe deprivation of fundamental rights by reason of the identity of the group or collectivity. It requires that these acts be done with discriminatory intent.
3.What does your report find?
Human Rights Watch found that Israeli officials have committed the crimes against humanity of apartheid and persecution. We found that the elements of both crimes are present in the Occupied Palestinian Territory (OPT), pursuant to a single Israeli government policy. That policy is to maintain the domination of Jewish Israelis over Palestinians and to discriminate against them across Israel and the OPT. The finding of apartheid is based on that intent to dominate in Israel and the OPT, coupled with the systematic oppression of Palestinians and inhumane acts committed against them in the OPT, including East Jerusalem. These acts include sweeping restrictions on their movement; widespread land confiscation; the imposition of harsh conditions which have led thousands of Palestinians to leave their homes under conditions that amount to forcible transfer; the denial of residency rights to hundreds of thousands of Palestinians and their relatives; and the suspension of basic civil rights to millions of Palestinians. The finding of persecution is based on a similar combination of factors, including the discriminatory intent behind Israel’s treatment of Palestinians in Israel and the OPT and serious abuses in the OPT.
4.On what evidence did you base your findings?
We examined Israeli policies and practices towards Palestinians in the OPT and Israel and compared them to the treatment of Jewish Israelis living in the same area. The report draws on years of research and documentation by Human Rights Watch and other rights organizations, including fieldwork conducted for this report. Human Rights Watch also reviewed Israeli laws, government planning documents, statements by officials, and land records. We then analyzed this evidence under the legal standards for the crimes of apartheid and persecution. Human Rights Watch also wrote to the Israeli government in July 2020, soliciting its perspectives on the issues covered but, as of publication, had not received a response.
5.What are you asking governments to do?
The Israeli government should stop committing the crimes of apartheid and persecution and should dismantle all forms of repression and discrimination that privilege Jewish Israelis at the expense of Palestinians, including in such realms as citizenship and nationality processes, freedom of movement, allocation of land and resources, access to water, electricity, and other services, and the granting of building permits.
Governments of other states should publicly express concern that Israeli authorities are committing the crimes against humanity of apartheid and persecution and apply the accountability measures that a situation of this gravity warrants. States should establish a UN commission of inquiry to investigate systematic discrimination and repression based on group identity in the OPT and Israel 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. They should investigate and prosecute those credibly implicated in these crimes, under the principle of universal jurisdiction and in accordance with national laws, and impose individual sanctions, including travel bans and asset freezes, against officials responsible for the continued commission of these serious crimes. They should condition arms sales and military and security assistance to Israel on authorities taking concrete and verifiable steps toward ending their commission of the crimes of apartheid and persecution. They should vet agreements, cooperation schemes, and all forms of trade and dealing with Israel to screen for those directly contributing to the commission of the crimes of apartheid and persecution against Palestinians, mitigate the human rights impacts, and, where not possible, end the activities and funding found to facilitate these serious crimes.
6.How can you accuse Israel of apartheid when Israeli Arabs vote in national elections, have passports, move freely, and serve in the Knesset?
There is no question that, within the Green Line, Palestinians have more rights. These rights are a major difference between the plight of Palestinians in Israel and the OPT. Even in Israel, Palestinians face systematic discrimination, including on where they can live and in the quality of the schools they attend. This reflects the intent of Israeli authorities to maintain the domination of Jewish Israelis over Palestinians. But the crime of apartheid requires a higher threshold of repression, which Human Rights Watch found in the OPT, including East Jerusalem.
7.Are you saying that there is apartheid within the Green Line, the internationally recognized borders of the State of Israel? Or only in the West Bank and Gaza?
We found the three elements of the crime of apartheid all come together in the OPT, pursuant to a single Israeli government policy. That policy is to maintain the domination of Jewish Israelis over Palestinians from the Jordan River to the Mediterranean Sea. In the OPT, that intent has been coupled with systematic oppression and inhumane acts committed against Palestinians living there.
8.Are you saying Israel is an apartheid state?
There is no such thing as an apartheid state, as far as international law is concerned. There is the crime of apartheid, committed by individuals. Human Rights Watch found that Israeli officials committed the crime of apartheid through specific acts and policies carried out in certain areas under their control. In particular, we found that the three elements of the crime come together in the OPT, pursuant to a single Israeli government policy. That policy is to maintain the domination of Jewish Israelis over Palestinians from the river to the sea. In the OPT, that intent has been coupled with systematic oppression and inhumane acts committed against Palestinians living there.
9.Are you comparing the situation in Israel/Palestine to the situation under white minority rule in South Africa?
No. Repulsion from the practice of apartheid in South Africa up until the early 1990s certainly shaped the decision by the international community to define apartheid as a crime against humanity. Over the years, however, in international law, the international community has detached the term apartheid from its original South African context and developed a universal legal prohibition against its practice. Irrespective of where it is committed, apartheid is a crime against humanity with a definition set out in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and the 1998 Rome Statute of the International Criminal Court (ICC), the latter drafted after the end of apartheid in South Africa. Human Rights Watch has concluded that Israeli officials have committed the crime of apartheid under the legal standards set out in these instruments and not on the basis of any comparison with the situation in South Africa.
10.If France is a French state, and Argentina is an Argentinian state, why can’t Israel be a Jewish State? Why can’t Israel determine its national identity and set immigration and citizenship policies accordingly?
International human rights law gives broad latitude to governments in setting their immigration policies. There is nothing in international law to bar Israel from promoting Jewish immigration. Jewish Israelis, many of whom migrated to Mandatory Palestine or later to Israel to escape anti-Semitic persecution in different parts of the world, are entitled to protection of their safety and fundamental rights. However, that latitude does not give a state the prerogative to discriminate against people who already live in that country, including with respect to rights concerning family reunification, or against people who have a right to return to the country. Palestinians are also entitled to protection of their safety and fundamental rights.
11.Are you saying that Palestinians and Jews are racial groups?
In international human rights law, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), race and racial discrimination have been interpreted broadly to mean far more than skin color or genetic traits but also to include distinctions based on descent and national or ethnic origin, among other categories. Rather than treat race as constituting only genetic traits, Human Rights Watch uses this broader definition. The adoption of the Rome Statute, after the end of apartheid in South Africa, indicates that “racial group” within at least the Rome Statute reflects a broader conception of race and would likely be interpreted as such by courts. Over the last two decades, in related but separate contexts, international criminal courts have evaluated group identity based on the context and construction by local actors, as opposed to earlier approaches focused on hereditary physical traits, mirroring the contemporary evolution in social science. Applying these standards, Human Rights Watch has documented how Jewish Israelis and Palestinians are regarded in the local context as separate identity groups that fall within the broader understanding of “racial groups” under international human rights law, and numerous Israeli laws and military orders treat Jews and Palestinians differently.
12.Aren’t you ignoring that the reason Israeli authorities adopt the restrictive measures that you cite as evidence of apartheid and persecution is to mitigate genuine security threats? When the threat subsides, they’ll allow more freedoms.
Israeli authorities face legitimate security challenges in Israel and the OPT. However, restrictions that do not seek to balance human rights such as freedom of movement against legitimate security concerns by, for example, conducting individualized security assessments rather than barring the entire population of Gaza from leaving with only rare exceptions, go far beyond what international law permits. Even where security forms part of the motivation behind a particular policy, that does not give Israel permission to violate human rights en masse.
Some policies, such as the Citizenship and Entry into Israel Law and freezing the OPT Population Registry, use security as a pretext primarily to advance demographic objectives. And many abuses, including categorical denials of building permits, mass residency revocations or restrictions, and large-scale land confiscations, have no legitimate security justifications. Instead, they are designed to engineer and maintain a Jewish majority in Israel and parts of the West Bank and to maximize Jewish Israeli control over land in Israel and the OPT. Legitimate security concerns can be present among the motives for policies that amount to apartheid, just as they can be present in the motives behind a policy that sanctions torture or the use of excessive force.
13.Doesn’t the law of occupation authorize the Israeli military to suppress civil and political rights?
While the law of occupation permits occupiers to restrict some civil and political rights based on limited security justifications, the decades-long mass suspension of basic civil rights for Palestinians in the OPT with no end in sight far exceeds what international law permits. As time passes, the prerogative of the occupier to restrict rights diminishes. The restrictions that Israeli authorities impose on the civil rights of Palestinians rise to the level of measures “calculated to prevent” their “participation in the political, social, economic and cultural life” and creates “conditions preventing the[ir] full development” by denying them the rights to freedom of expression, peaceful assembly, and association, specifically identified as inhuman acts in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
14.Doesn’t your analysis ignore the fact that Palestinians are ruled by Palestinian authorities in the West Bank and Gaza Strip? Why blame Israel and not the Palestinian authorities?
The Palestinian Authority (PA) and Hamas exercise local governmental functions in parts of the OPT and as such are bound under international human rights law to respect civil, political, and other rights. Human Rights Watch has extensively documented their failure to do so for years, including systematic, arbitrary arrests and torture of critics and opponents. Israeli authorities maintain exclusive control over 60% of the West Bank, as well as East Jerusalem. In the remainder of the West Bank in which the PA exercises governance in some realms, the Israeli government still retains primary control over many aspects of the lives of Palestinians, including borders, natural resources, airspace, movement of people and goods, security, and the population registry.
Despite the withdrawal of Israeli ground forces, Israel remains an occupying power in Gaza, too, because it controls the movement of people and goods, the population registry, taxation, the funding of public services, and other aspects of life there. The obligations of international humanitarian law are determined by the extent to which a foreign power exercises control over the occupied population, and in Gaza, the threshold of control needed to trigger obligations under the law of occupation is met.
Israeli authorities are using their control to systematically repress Palestinians and to exclude most of them from having a say in the wide range of affairs that most affect their daily lives and futures. The fact that the Palestinian authorities are also committing serious abuses does not make the Israeli authorities less accountable for their own actions
15.How can you claim that Israel is privileging Jews over Palestinians in Gaza when Israel removed all Israeli settlers from Gaza in 2005?
Human Rights Watch assesses Gaza as part of a single territorial unit that includes the West Bank, given that the international community, as well as the Israeli government, have recognized them as a single territory. The Israeli government’s withdrawal of its settler population from Gaza in 2005 reflected not a departure from the objective of demographic and land control in the OPT, but rather a recalibration in light of the large Palestinian population inhabiting a small strip of land and the burden of securing a tiny Jewish settler community there. It marked a shift to focus on ensuring a Jewish majority in Israel and the parts of the OPT it has marked for Jewish settlement – namely much of the West Bank, including East Jerusalem. Human Rights Watch found that, in the rare cases where Israeli authorities permit Palestinians to move between the West Bank and Gaza, they allow it only in the direction of Gaza, in order to pressure Palestinians to leave the West Bank, much of which they covet for Jewish settlement. Control over the movement of the population of Gaza thus furthers the Israeli government’s policy to maintain a Jewish majority in the rest of the area between the Jordan River and the Mediterranean Sea, where it systematically discriminates against Palestinians.
16.How can Israel have an intent to maintain its current system when it has agreed in principle to Palestinian statehood and to negotiating a peace deal?
A range of Israeli officials have made clear their intent to maintain overriding control of the West Bank in perpetuity, regardless of what arrangements are in place to govern Palestinians. This position spans from former Prime Minister Levi Eshkol, of the Labor Party, declaring in July 1967 that “I see only a quasi-independent region [for Palestinians], because the security and land are in Israeli hands,” to Netanyahu of Likud in July 2019 saying that “Israeli military and security forces will continue to rule the entire territory, up to the Jordan [River].” Their words are matched by actions and policies that further dispel the notion that Israeli authorities consider the occupation temporary. These include massive settlement expansion, with more than 660,000 Israeli settlers now residing in the OPT; the continuing confiscation of land; the building of the separation barrier not on the 1967 border but well inside the West Bank to accommodate the anticipated growth of settlements; the integration of the settlements’ sewage system, communication networks, electrical grids, water infrastructure and a matrix of roads into infrastructure inside Israel proper; and a growing body of laws applicable to West Bank Israeli settlers but not Palestinians. The possibility that a future Israeli leader might forge a deal with Palestinians that dismantles the discriminatory system and ends systematic repression does not negate the intent of current officials to maintain the current system, nor the current reality of apartheid and persecution.
17.How can you blame Israel for apartheid when the Palestinians rejected offers, at Camp David and thereafter, for a two-state solution?
Israeli authorities are responsible for protecting the rights of Palestinians living under occupation, as well as Palestinian citizens of Israel, irrespective of the status or outcome of political negotiations and regardless of who bears responsibility for breakthroughs or impasses in any political negotiations. They must abide by the law of occupation, which prohibits an occupying power from settling the occupied territory and treating it as its sovereign territory and requires specific protections of the residents of the occupied territory. So long as the Israeli government continues to exercise control over Palestinians in Gaza and the West Bank, it must grant them full protection of the rights guaranteed to all people under international human rights law, using as a benchmark the rights it grants its own citizens
18.Aren’t you collapsing the distinction between Israel and the OPT and calling for a one-state solution?
No. Apartheid is a crime in which one group of people dominates another, irrespective of whether the dominating group has formal sovereignty in the area. Human Rights Watch evaluates Israeli rule inside its internationally recognized borders and in the Occupied Palestinian Territory – Gaza and the West Bank, including East Jerusalem – since the Israeli government exercises primary control across these areas. We, however, underscore the different legal frameworks that apply in Israel and the OPT, given their different status under international law. We also describe the different policies and practices that Israeli authorities maintain in each of those areas. A finding of apartheid or persecution does not change the legal status of a territory, even when it is outside the borders of the state committing the crimes. Nor does it detract from the factual reality of occupation. Human Rights Watch calls for Israeli authorities to end the commission of these crimes, not to adopt a particular political solution. Our call on Israeli authorities to end apartheid does not preclude a one-state solution, a two-state solution, a confederation, or any other political arrangement. The Israeli authorities should end apartheid now, regardless of the political arrangement in place now or in the future.
19.Have you concluded that the crimes of apartheid, persecution, and other crimes against humanity have been committed in other country situations?
Discrimination takes many forms across the world, each with its own specific characteristics. Where discrimination reaches a high threshold of repression and is accompanied by the other elements outlined in this report, it could meet the legal definition of the crimes against humanity of apartheid or persecution. In 2020, Human Rights Watch found that abuses by the Myanmar government against Rohingya Muslims amount to the crimes of apartheid and persecution. Human Rights Watch has also made findings of other crimes against humanity, such as murder as part of a systematic attack on civilians by ISIS in Iraq, widespread and systematic torture and mass killings of protesters in Egypt, and systematic attacks on civilians in the Central African Republic. We have also found genocide in various cases: the Iraqi government’s Anfal campaign against the Kurds, the Hutu extremists’ plan to destroy the Tutsi minority in Rwanda, and Bosnian Serb forces against the Muslims of Srebrenica. In these and other cases, we have called for those credibly implicated in the crimes to be held to account.
20.How does your finding compare to those of Al Haq, B’Tselem, Yesh Din, or other human rights organizations?
Human Rights Watch is proud to work with Palestinian and Israeli human rights organizations such as Al Haq, the Palestinian Centre for Human Rights, B’Tselem, Yesh Din, and others who have also made apartheid and persecution determinations. These groups have worked on the ground for years, and their research and analysis inform Human Rights Watch’s work. Each group evaluated these issues independently, commensurate with their mandates and expertise which may mean our findings differ on some points, but not on others. We evaluated Israeli rule across areas where it is exercising control, while underscoring key legal and factual differences between Israel and the OPT.
21.Are you calling on the ICC prosecutor to investigate the crimes of apartheid and persecution as part of the office’s Palestine probe?
Yes. On March 3, 2021, the International Criminal Court’s (ICC) Office of the Prosecutor opened an investigation into alleged serious crimes committed in Palestine (the OPT) since June 13, 2014. In light of the decades-long failure by Israeli authorities to rein in serious abuses as documented in our report, Human Rights Watch is calling on the prosecutor’s office to investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid or persecution as part of the overall probe.
In addition, national judicial authorities in other countries should investigate and prosecute those credibly implicated in these crimes under the principle of universal jurisdiction and in accordance with national laws.
22.Are you saying that senior Israeli officials responsible could be prosecuted?
Human Rights Watch has found strong evidence that the crimes of apartheid and persecution have been committed, but we did not delve into the potential criminal liability of particular individuals. The ICC prosecutor should do so as part of the office’s investigation, as should national judicial authorities in other countries under the principle of universal jurisdiction in accordance with domestic laws.
23.How do your recommendations differ from calls for Boycott, Divestment, and Sanctions (BDS) against Israel?
Human Rights Watch does not take a position for or against the call by some groups for consumers, individuals, or institutions to boycott Israel, Israeli individuals, or Israeli entities, other than to defend the right of people to boycott as a form of peaceful expression. These groups have advocated BDS to pressure Israel to end its military occupation and achieve other goals. In contrast, Human Rights Watch makes no recommendations to individuals. Its asks (other than to governments) are limited to businesses, and the ask is far narrower than the BDS goals, asking them only to cease activities that directly contribute to the crimes against humanity of apartheid and persecution and to cease providing goods and services that are likely to contribute to these crimes, in line with their responsibilities under the UN Guiding Principles on Business and Human Rights to avoid complicity in serious rights abuses. The commission of crimes against humanity should trigger businesses active in Israel and the OPT to engage in heightened scrutiny of their activities there. The results of that scrutiny would depend on the type of business, interactions between its activities and the crimes of apartheid and persecution and available options for mitigating or repairing harm, and the impact of ceasing or reducing business activity.
24.Why are you calling it apartheid now when many of these policies and practices have been in place for years?
Human Rights Watch does not reach determinations about crimes against humanity lightly, as they are among the most serious crimes under international law. One required element of the crime against humanity of apartheid is an intent to dominate. For decades, Israeli authorities insisted that the status quo, especially in the OPT, was “temporary,” the result of the stalled “peace process.” Statements and actions by Israeli authorities in recent years, however, including continuous expansion of Israeli-only settlements in the West Bank, the passage of the Jewish Nation-State Law, and declarations of intent to formally annex additional parts of the West Bank have clarified their intent to maintain the domination of Jewish Israelis over Palestinians for the foreseeable future if not permanently. Based on the totality of these facts, Human Rights Watch has determined that the severity and nature of specific conduct by Israeli authorities have crossed a threshold and amount to the crimes of apartheid and persecution. In addition, Palestine’s 2015 joining of the international criminal court means there is now an international court with jurisdiction over crimes against humanity committed in Gaza and the West Bank
25.But accusing Israeli officials of crimes against humanity impedes constructive policy goals to get the parties negotiating for a two-state solution.
We do not refrain from reporting human rights violations because of speculation about the political consequences. In any event, the finding of crimes against humanity should prompt the international community to reevaluate its approach to Israel and Palestine. The conflict resolution paradigm that has long guided the international community’s approach to Israel and Palestine minimizes serious human rights abuse by treating them as temporary problems that the political negotiations will soon cure. This has blunted efforts to bring to bear the sort of human rights tools and accountability measures that a situation of this gravity warrants now. The international community should stop assessing the situation through the prism of what might happen if political negotiations progress. Instead, it should recognize the current reality of entrenched Israeli discriminatory rule that amounts to the crimes of persecution or apartheid and address them as it would the ongoing commission of any crime against humanity.