On April 27, 2021, Human Rights Watch (HRW) issued a 213-page report entitled “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution.” The report covers Israeli practices in both the occupied Palestinian territories and within the state of Israel. It presents findings that in the entire area today, only one sovereign government exists that rules over 6.8 Palestinians and 6.8 Israeli Jews, and that regardless of where they live, a separate legal system exists that favors the domination of one group over the other. The report documents specific violations in clear and objective detail, with documentation and references to international law. It connects them directly to the international definition of the crime of apartheid, both under the International Convention on the Suppression and Punishment of the Crime of Apartheid, and the Rome Statute of the International Criminal Court.
While much of what is in the report has been claimed and documented by Palestinians for many years, and in turn acknowledged by other institutions including the Israeli human rights organization B’Tselem, HRW’s judgment is nonetheless quite significant, particularly at the present time. It is also important because it moves away from the model of the occupied territories versus Israel to one that encompasses the entire area of historic Palestine, and it describes policies of legal and systematic discrimination aimed at dominating all Palestinians by Israeli Jews.
The first factor articulated by the HRW report is the “widely held assumption” that the situation in the occupied territories has been treated as a “temporary” one, pending the outcome of peaceful negotiations that would resolve issues and determine the status of the areas and their population. Peace negotiations, which have dragged on for decades, as well as the prospect of a two-state solution have led many to refrain from harsh criticism of the whole situation and to limit their view to narrow—though critical—issues such as collective punishment, house demolitions, and illegal settlements. As the prospect of a two-state solution recede and Israel becomes more assertive in claiming permanent dominance—and even flirts with de jure, not just de facto, annexation—international organizations increasingly have felt the need to look at the larger picture. Prominent liberal Jewish thinkers, like Peter Beinart, publicly questioned the two-state solution, and even J Street in its recent convention started dealing with the newly understood reality. Prominent think tanks like the Carnegie Endowment for International Peace also weighed in with analysis that would have been unthinkable in the past, as they were quite committed to the two-state paradigm.
The second factor is the blatant right-wing legislation in Israel that openly promotes discriminatory laws and insists on the “Jewish character of the state.” This law welcomes into the government persons and parties that are openly racist, those who had previously been declared as such by Israeli courts and who, until recently, were not acceptable even to the Likud Party. Palestinians and experts already knew well the racism and discrimination practiced against Palestinians, but the blatant expression of such policies now found its way to the public arena and was being openly discussed in an unprecedented way. Perhaps the vulgarity of the carte blanche given to Israel during the Trump Administration years, leading to its dispensing with even the appearance of respecting international law, further emboldened Israel to act in open violation of laws and norms (and consequently made it harder to defend its actions). Once Trump left office and the American evangelical right wing started falling into disrepute after the January 6, 2021, attacks on the US Capitol, it was inevitable that the unqualified support for Israel would lose its veneer of a solid bipartisan nature.
All this, however, does not detract from the substance of the charges being made in the HRW report: international crimes, like apartheid, and crimes against humanity, are not just issues for political debate but contain specific elements that need to be proved. Here, Human Rights Watch was very specific, objective, and informative in exposing Israeli practices. Apartheid, while it originated in South Africa, is now a recognized category of illegal activities that are well defined and include elements of domination by one racial group over another (or others). It is a legislative structure mandating the elements of discrimination as a matter of law, and the acts of persecution of the oppressed group, according to a fixed provided list. The Human Rights Watch report systematically shows how all these components of the apartheid framework have been effectuated.
The response of Israel and its apologists and supporters has been audacious and aggressive. Without in any way addressing the substance of the charges, the reaction was to attack Human Rights Watch and question its credibility. They accused it and the authors of the report of anti-Semitism and an intent to demonize and criminalize Israel, alleging that they support the Boycott, Divestment, and Sanctions movement. Importantly, defenders of Israel demanded that no action be taken to implement HRW’s suggestions or to examine the validity of the charges, particularly not at the International Criminal Court—where every procedural effort was made and every political leverage was used to prevent a hearing on the merits of the apartheid case. The Conference of Presidents of Jewish Organizations issued a denunciation of the report. The Israeli government also dismissed the report as anti-Israeli bias and claimed it reflected a long tradition of singling out Israel for condemnation and double standards.
For many years, and with the complicity of every Israeli government, the right wing and other leaders in Israel have endeavored to erase the 1948 Green Line and to assert Israeli control over the entire land, from the Jordan River to the Mediterranean Sea. Now Israel must deal with the reality that the world may finally be rejecting its position and holding it to international values and norms throughout historic Palestine, and not just in the occupied territories.
Finally, the HRW report puts the Biden Administration on notice as to where it stands regarding Israeli practices of apartheid against Palestinians. Since Biden’s inauguration in January, officials in the administration have made confusing and somewhat contradictory announcements about both Palestinian rights and the American commitment to Israel’s security. It is thus about time that Washington made its choice: acknowledge that Israel has for long trampled over Palestinian rights, or continue to bury its head in the sand as Palestinian, Israeli, and international human rights organizations continue to more clearly expose Israeli apartheid and discrimination against Palestinians living under Israel’s control.
Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. To learn more about Jonathan and read his previous publications click here