Salo Aizenberg is the author of Amnesty International’s Cruel Assault on Israel: Systematic Lies, Errors, Omissions, and Double Standards (2022) and A Threshold Crossed: Documenting HRW’s ‘Apartheid’ Fabrication (2022). In this essay he explains why, when NGOs extend the term ‘apartheid’ to Israel, they commit ‘three key falsifications of the legal definition and application’ of the term.
Introduction
The charge that Israel is an apartheid regime has become one of the central elements of the lawfare campaigns against the Jewish state. The apartheid label has been falsely applied to Israel for decades, beginning with anti-Zionist propaganda emanating from the Soviet Union in the 1950s. The label was advanced in 1975 when a U.N. General Assembly resolution equating Zionism with racism included the apartheid term. Another step forward took place at the UN Durban Conference in 2001 when NGOs promoted the demonisation of Israel as apartheid. The final declaration of the conference referenced ‘Israel’s brand of apartheid’ with the stated goal of isolating Israel. The most recent and aggressive effort was initiated by a group of NGOs who coordinated to issue a series of detailed reports that they claimed proved Israeli apartheid. The first reports, which can be considered warm-ups to the main events, were issued by Israeli based Yesh Din in July 2020 and B’Tselem in January 2021. These reports were soon followed by prominent NGOs Human Rights Watch (HRW) in April 2021 (A Threshold Crossed, Israeli Authorities and the Crimes of Apartheid and Persecution) and Amnesty International in February 2022 (Israel’s Apartheid Against Palestinians). A close read of these reports shows significant sharing of methodologies and information, all relying on the same manipulations to falsify the legal definition of apartheid so that it fits the parameters of the Israel-Palestine conflict.
A key goal of these NGOs is to normalise the characterisation of Israel as apartheid so that it becomes part of the accepted discourse. Anti-Israel groups are aware of the potency of the label compared to merely saying for example that ‘Israel commits crimes against humanity’ or operates a ‘brutal occupation.’ Since everyone knows what must to happen to apartheid states – they must be dismantled – these groups intend for the apartheid label to lead to greater international pressure that results in boycotts and sanctions and eventually Israel’s dissolution. The effort is gaining traction. UN officials have begun to adopt the term and media reports now regularly associate Israel with apartheid. A group of over 1,000 Jewish academics and activists recently issued a letter agreeing that Israel is an apartheid regime. While the letter was mainly intended to provide support for the movement against changes in the Israeli judiciary and not as part of a campaign to end Israel as the Jewish state, the signatories were nevertheless comfortable describing Israel as apartheid. As will be demonstrated below, these academics negligently bought into the falsification of the meaning of apartheid by NGOs.
A core contention of these NGOs is that they strictly adhere to international law in branding Israel as apartheid. For example, the Yesh Din report is presented as a ‘legal opinion’ written by lawyer and self-described expert on international law Michael Sfard. As will be proven below it is clear that the legal definition of apartheid cannot be applied to the Israel-Palestine conflict and therefore the NGOs deliberately distort the plain language of international legal documents to fabricate a new definition of apartheid. This article will focus on three key falsifications of the legal definition and application of apartheid.[1] There are hundreds of other errors, lies and misrepresentations disseminated by NGOs regarding the details of Israel’s alleged crimes that underpin apartheid that have been exposed in several detailed rebuttals.[2]
Fabrication 1: Redefine the meaning of ‘racial’
As acknowledged by NGOs, apartheid is defined by international law in two documents: (1) The ‘Apartheid Convention’ which refers to a 1973 resolution by the UN General Assembly International Convention on the Suppression and Punishment of the Crime of Apartheid; and (2) The Rome Statute of the International Criminal Court which was issued in 1998 and entered into force in 2002 with 123 state signatories.
The Apartheid Convention defines apartheid as follows and continues by listing specific crimes:
For the purpose of the present Convention, the term ‘the crime of apartheid,’ which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman 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 Rome Statute defines apartheid as follows:
‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
In both definitions apartheid is specifically a racial crime committed by one racial group against another. The plain dictionary meaning of race is ‘any one of the groups that humans are often divided into based on physical traits regarded as common among people of shared ancestry.’ In South Africa the regime segregated the ‘white race’ from the ‘black race’, and it is this model of discrimination that informed the definition of apartheid. It is clear that the racial aspect of apartheid does not match the groups that are party to the Israel-Palestine conflict as neither Palestinians nor Jews are races. Each of these identity groups include people of different races (e.g. more than 50 per cent of Israeli Jews are of Arab origin). This fact should have eliminated the application of apartheid under international law to Israel’s alleged crimes towards Palestinians, but the NGOs came upon a solution: redefine the meaning of ‘racial’ to expand the application of apartheid to any identity group.
The NGOs first step in the redefinition of racial is to claim that neither the Apartheid Convention nor the Rome Statute defined the term even though this is a gross misrepresentation. HRW states: ‘Both the Apartheid Convention and Rome Statute use the term “racial group,” but neither defines it’ and Amnesty writes: ‘the term “racial group” has not been defined in either of these instruments.’ With this assumption in hand, the NGOs then look to a third international statute known as ICERD or the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the UN General Assembly in 1965. ICERD offers a more expansive definition of ‘racial discrimination’:
- In this Convention, the term ‘racial discrimination’ shall mean 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.
By including descent, national and ethnic based identity in the meaning of ‘racial’ for the purposes of defining apartheid it conveniently becomes applicable to the Israel-Palestine conflict. All the NGO reports therefore assert that they are using the ICERD definition of racial for purposes of defining apartheid. For example, Amnesty writes: ‘It is this subjective understanding of “racial groups” that is applied by Amnesty International in this report with regard to the crime against humanity of apartheid.’ The use of ICERD’s definition might seem reasonable on the surface but the NGOs deliberately obscure how the Rome Statute actually treats the meaning of ‘racial’ and dishonestly cherry-picks one clause from ICERD to override the language in the Rome Statute.
Is it true, as these NGOs contend, that ‘racial’ is undefined in both the Apartheid Convention and the Rome Statute and therefore it is reasonable to look to a document issued more than 30 years prior to Rome for the definition? While these documents do not technically provide a formal definition for racial, the Rome Statute quite explicitly distinguishes race from all the other commonly accepted elements of identity including political, national, ethnic, cultural, religious and gender differences. Thus, while ICERD includes some of these other identity groups in its definition of racial, the Rome Statute specifically excludes them thus isolating the meaning of racial to its literal and classical definition. Copied below is Article 7.1 of the Rome Statute. Clause (h) lists the various identity groups that could suffer the crime of persecution: political, racial, national, ethnic, cultural, religious and gender. Thus while the Rome Statute does not define racial (or any of these terms), no honest reading of the statute could claim that the authors intended for racial to include things like nationality and ethnicity.
The Rome Statute also specifically separates racial from other identity groups in Article 6 where genocide is defined. Genocide is defined as ‘acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.’ Once again it is evident that the statute intentionally separates racial from these other identity groups. In this case three identity groups that could be subject to the Crime against Humanity of Persecution, cultural, gender, and political, are excluded from genocide.
There is additional evidence for how the Rome Statute considered the word racial as a unique identifier. Article 7.1(j) lists ‘The crime of apartheid’ as one of eleven crimes against humanity, and then further clarifies the meaning of apartheid in the next section. Copied below are clauses (g) and (h) from Article 7.2 that are relevant to this analysis:
The ‘crime of apartheid’ is exclusively defined as a racial crime. The authors were certainly aware of all the other types of group identities – political, national, ethnic, cultural, religious and gender – but deliberately did not include them in the definition of apartheid. The prior clause (g) which further defines ‘Persecution’ is expansive and applies this crime to ‘the identity of the group or collectivity’, referring back to the seven separate group identity types listed in Article 7.1(h). Persecution can be committed against all seven identity groups, including racial, but apartheid can only be committed against a racial group and none of the others. As noted earlier, ‘Genocide’ can be perpetrated against national, ethnic, racial or religious groups, but excludes three other identity groups. Surely if the Rome Statute intended for apartheid in clause (h) to include identities other than race it would have used the same language as clause (g) to describe the crime or listed other specific identity groups that could be subject to apartheid as it did in defining genocide. There is no doubt that the Rome Statute defined race as unique from all other identity groups and there is no doubt that it meant for apartheid to be a unique crime against humanity that was racial only, differentiated by those that could be subject to ‘persecution’ and ‘genocide.’ It is therefore a fraudulent manipulation by the NGOs to insert the ICERD definition of racial from more than 30 years earlier and apply it to the Rome Statute definition of apartheid.
Surely Yesh Din’s 58-page ‘Legal Opinion’ by Michael Sfard, who is cited as an expert in international human rights law, closely addressed Article 7.1.(h) of the Rome Statute and its apparent contradiction with the ICERD definition of racial discrimination? Surely the long reports by HRW and Amnesty, which were each written over several years and claim to rigorously apply international law addressed the fact that the Rome Statute separated racial from all other identity groups? Surely the NGO’s legal experts explained why it is proper to rely on ICERD to define racial even though the Apartheid Convention and Rome Statute written many years later did not cite this definition? The answer is the same for all the reports – none even mention the treatment of racial in the Rome Statute or how ‘persecution’ applies to seven identity groups but ‘apartheid’ only to racial groups in Article 7.1(h), let alone offer a legal analysis of the clause. Of course not, as an honest reading of the statute would make clear that the Israel-Palestine conflict can be many things, but it cannot be apartheid under the international legal definition of the term. HRW doubles down on the lie with the following comment that distorts reality:
While discussion of the meaning of ‘racial group’ during the drafting of the Rome Statute appears to have been minimal, its inclusion in the definition of apartheid, after the end of apartheid in South Africa and when international human rights law had clearly defined racial discrimination to include differences of ethnicity, descent, and national origin, indicates that ‘racial group’ within the Rome Statute reflects, and would likely be interpreted by courts to reflect, a broader conception of race.
Fabrication 2: Claiming that the definition of Apartheid is no longer based on the South African model
The second fabrication of international law by NGOs is their contention that apartheid is no longer based on the South African model. The 1973 Apartheid Convention, which was written when apartheid remained in force in South Africa, noted that apartheid included ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa.’ The clear association of apartheid under international law with South Africa, as well as this nation being the only confirmed apartheid regime in history, is problematic for those who seek to label Israel as apartheid. Even Israel’s harshest critics cannot and do not claim that Israeli-Arabs and Palestinians suffer from the same type of segregation in every aspect of life that Black people suffered under apartheid South Africa. While this fact would seem to deal a serious blow to claiming Israeli is an apartheid regime, NGOs came upon an easy solution. HRW explains:
The international community has over the years detached the term apartheid from its original South African context, developed a universal legal prohibition against its practice, and recognized it as a crime against humanity with definitions provided in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid Convention’) and the 1998 Rome Statute of the International Criminal Court (ICC).
Despite 865 footnotes in a 217-page report, HRW does not cite any evidence of the detachment of apartheid from its South African context and what specific ‘years’ this took place. Certainly no international law – which HRW insists it strictly adheres to – supports the claim that South Africa is no longer the model for apartheid.
HRW published a follow up in July 2021 in response to criticism of its definition of apartheid and the claimed disconnection to South Africa stating: ‘And crucially, the 1998 Rome Statute, drafted after the end of apartheid in South Africa, defines apartheid as a distinct crime against humanity and removed any reference to Southern Africa from its definition.’ It is true that the Rome Statute did not reference South Africa but neither did it negate it and NGOs do not suggest that the Apartheid Convention is no longer valid. Note the selective use by HRW of later editions of international law to supersede prior statutes. In the case of South Africa the 1998 Rome Statute is more relevant and up to date than the 1973 Apartheid Convention; but when it comes to defining ‘racial’ the 1965 ICERD is more informative than the Rome Statute.
The fact is that the Rome Statute further emphasised the unique connection of apartheid to race as literally defined, similar to the Apartheid Convention. With South Africa no longer an apartheid regime as of 1994 it made sense not to invoke this nation in the 1998 definition of apartheid. There is also the matter of legal precedent, a universal and critical element of all legal analysis. Since South Africa is the only nation in history universally acknowledged as apartheid, surely an analysis charging another nation with apartheid for the only the second time in history would include this comparison in their legal analysis. But no NGO bothers to compare Israel to apartheid South Africa. These NGOs know that the South African comparison to Israel is a glaring weakness in its argument, so they have emphasised its aversion to this comparison. For example, Omar Shakir, the author of the HRW report, scoffed at critics who ‘build strawmen, try to say it’s [Israel’s] not like South Africa, that’s not what we’re arguing.’
Fabrication 3: Cherry-picking one clause of ICERD and ignoring another
As described above, NGOs mix and match international law by cherry-picking one clause of ICERD, the one that defines ‘racial discrimination,’ in a fraudulent attempt to override the treatment of ‘racial’ in the Rome Statute. Compounding the dishonesty, NGOs conveniently only cite Article 1.1 of ICERD (shown previously) but ignore the very next clause 1.2 which reads as follows:
- This Convention shall not apply to distinctions, exclusions, restrictions or references made by a State Party to this Convention between citizens and non-citizens.
According to ICERD’s definition of ‘racial discrimination,’ differences in how non-citizens are treated, even if excluded and subject to restrictions, are not considered racial discrimination. Therefore, even if one were to assume ICERD’s definition of racial discrimination is the accurate one to use in defining apartheid, actions taken against non-citizens is excluded and thus cannot be a crime of apartheid. In the context of Israel-Palestine, this exclusion effectively negates the case for Israeli apartheid. Large sections of the crimes NGOs allege Israel commits are related to its treatment of Palestinians who by a large majority are non-citizens of Israel. While it is still possible for non-citizens to be subject to crimes against humanity under the Rome Statute (which refers to ‘any civilian population’), the millions of Palestinians who are non-citizens of Israel are not legally victims of racial discrimination under ICERD. Once excluded from racial discrimination it necessarily follows that Palestinians are not victims of apartheid.
Conclusion
The first fabrication highlighted is the ‘smoking gun’ evidence that demonstrates that the Israel-Palestine conflict can be many things, but cannot be apartheid. Under both the Apartheid Convention and the Rome Statute apartheid is exclusively a racial crime as strictly and literally defined. There are ten other crimes against humanity under the Rome Statute which could legally apply to the Israel-Palestine conflict. Assuming one believes Israel commits the crimes against Palestinians that NGOs allege (we do not), it would be legally accurate under the Rome Statute to state: ‘Israel commits the crime against humanity of persecution against the national and ethnic group known as Palestinians under Article 7.1(h).’ Of course this does not carry the rhetorical weaponisation like the word apartheid.
The typical response by anti-Israel activists and their supporters when exposing the falsification of the definition of apartheid for its unique application to Israel is: ‘Israel is committing grave crimes against humanity and your best response and defense is to discuss the technical definition of apartheid?’ The answer is two-fold. First, the alleged crimes committed by Israel are grossly fabricated, exaggerated and misrepresented as well, all of which has been documented in detail in several lengthy rebuttals. Second, if the terminology is secondary and not important compared to Israel’s supposed crimes, then why do NGOs care what term is used to describe Israeli actions? Why not move away from this one-word label that invites accusations of antisemitism by international officials? If not technically accurate why not simply say Israel commits crimes against humanity against Palestinians? It is of course disingenuous for Israel’s critics to claim that combatting the use of the apartheid label is besides the point since Israel is criminal anyhow. They know that apartheid commands special attention and seriousness that demands aggressive international action. They know that Israel is the only nation on earth that is routinely branded as apartheid and they strive to keep it that way in hopes of permanently isolating Israel. Shame on academics and the media for blindly following the fabrications of the NGOs, allowing international law to be determined by a popularity contest.
[1] There are other aspect of the definition of apartheid which are also incorrectly applied by NGOs, such as the meaning of ‘inhumane acts’ and ‘domination’ that are not covered in this article. See https://www.ngo-monitor.org/reports/apartheid-report/ for a further analysis of the apartheid definition.
[2] https://www.bicom.org.uk/analysis/the-apartheid-smear-2022/; https://www.ngo-monitor.org/reports/amnesty-internationals-cruel-assault-on-israel/; https://www.google.com/url?client=internal-element-cse&cx=010323966898720032183:9pwegkotst0&q=https://ngo-monitor.org/pdf/ThresholdCrossed_2022.pdf&sa=U&ved=2ahUKEwi4kKD04-GAAxWNElkFHYEGBcUQFnoECAgQAg&usg=AOvVaw0s8tcmgkSCAQLi_t5Qtvrn
