Israeli forces demolish two houses of Palestinians in East Jerusalem. Credit: Issam Rimawi/Anadolu Agency via Getty Images
Columns On Law

Shifting the goalposts on Israel

A partisan report distorts the law as well as the facts on the Palestinian question

Joshua Rozenberg

This article is taken from the December/January 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

Apartheid is a horrible word. The preferred pronunciation — “apart hate” — sums it up rather well. Afrikaans for “separateness”, it was the system that classified South Africans by race and enabled the minority white population to repress the majority from 1948 to the early 1990s.

Racial discrimination is particularly pernicious because individuals can never change their heritage. A state that thus persecutes its citizens deserves international condemnation. That’s why those seeking to demonise the State of Israel are accusing it of apartheid. They hope that if this false slur gains currency, Israel will become an international pariah.

I should probably declare an interest as someone with the closest possible personal links to Israel. But that is not why I am writing this column. The first reason is that apartheid is a specific but little known crime under international law. The second is that the November issue of The Critic carried a piece that accepts the demonstrably false apartheid charge entirely uncritically.

Janine di Giovanni cites a report published in April by the campaign group Human Rights Watch, which she describes as “painstakingly detailed” and a “heavy blow” for Israel. It has certainly been used to delegitimise the only democracy in the Middle East. But, like those who rely on it, the report distorts both law and facts.

The United Nations apartheid convention of 1973 applies, by analogy with South Africa, to “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”. 

Why should we pay attention to a campaign group that has been widely discredited?

The Rome statute of 1998, which set up the International Criminal Court, defines apartheid as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group and committed with the intention of maintaining that regime”.

Crucially, both define apartheid as committed by one racial group against another. Neither the Palestinian leadership nor any prosecutor at the International Criminal Court has yet suggested that this applies to Israel.

So pressure groups, including some in Israel, have had to move the goalposts. Human Rights Watch argues that race can be “interpreted to include distinctions based on descent, and national or ethnic origin, among other categories”.

Israel certainly discriminates on grounds of nationality. To the distress of Jews and non Jews alike, those without Israeli passports or close relatives in Israel were not allowed to visit the country during the pandemic. But all nations give privileges to nationals. Some even revoke the citizenship of dual nationals — as the UK does to those joining terrorist groups abroad.

Israeli Arabs, and citizens from other minorities, have the same rights as Jewish citizens, but fewer obligations: Arabs are not required to do military service, though more than 1,000 volunteered last year. The position is different in the territories governed by the Palestinian Authority. If Israel granted citizenship to non Israelis living in the West Bank, critics would accuse it of annexation.

A country discriminating against its citizens on ethnic grounds would begin by denying them the vote. It would certainly not allow them prominent positions in government, the military, the judiciary and its finest hospitals, as Israel does. Mansour Abbas, who studied dentistry at the Hebrew University of Jerusalem and now leads the United Arab List, is a senior member of the Knesset and holds the balance of power in Israel’s coalition government.

But why should we pay attention to a campaign group that has been widely discredited, not least by its founding chairman? Why should we give credence to a writer who implies that Gaza is “occupied” by Israel when it is run by terrorists who launch unprovoked attacks on civilians in a neighbouring state?

The UN report will hinder the cause of peace

It is because the Human Rights Watch paper, with its invented definition of apartheid, is likely to provide spurious legal cover for a forthcoming report to the United Nations Human Rights Council. This multi national body, whose 47 elected members include some from states responsible for appalling human rights abuses, has set up a commission of inquiry to find admissible evidence of “systematic discrimination and repression based on national, ethnic, racial or religious identity” by Israel.

Israel’s enemies hope the inquiry’s findings will put pressure on the International Criminal Court prosecutor to launch a new preliminary examination. Fortunately, Karim Khan QC is a sound lawyer and knows that allegations of apartheid would be laughed out of court.

Headlines like “UN finds Israel guilty of apartheid” may give the manufacturers of Ben & Jerry’s ice cream another excuse for their recent boycott of Israelis. More seriously, the UN report will hinder the cause of peace by encouraging the Palestinians to imagine that litigation is more effective than negotiation.

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