VII. The IHRA Definition of Antisemitism

and

The Human Rights Watch Apartheid Report

In the IHRA definition, five types of cases cited in that definition are of greatest interest for this discussion. They are, of course, all about certain types of responses considered antisemitic to the behaviour of Israel as a state. They include the charges of:

  1. Double Loyalty
  • Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
  • Denying the Jewish People the Right to Self-determination
  • Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
  • Double Standards
  • Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
  • Characterizing Israelis by Traditional Antisemitic Tropes
  • Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
  • Characterizing Israel as a Nazi (or an Apartheid?) State
  • Drawing comparisons of contemporary Israeli policy to that of the Nazis.

This blog is only concerned with the fifth of the above. I have added the apartheid epithet to the Nazi one because:

  • The identification is similar to the original
  • It carries the corresponding degree of opprobrium
  • It is currently the most relevant one
  • It is experienced by Jews as a very repugnant characterization.

There is one major difference. Those characterized as antisemitic are often those who approve of Nazis who embrace the symbols and language of Nazism to characterize Jews. They view Jews as the movers and shakers behind the rise of people of colour. Charlottesville is an example where racists shouted, “Jews will not replace us,” not meaning that Jews will grow sufficiently in numbers to displace whites, but that Jews provide the direction, the strategy, the organization and the monies to back the rise of the Black and Brown presence in America in both their numbers and their roles. Jews are the anti-racists par excellence.

In characterizing Israel as an apartheid state, Jews are the racists. They intentionally have built a power structure intent on one group (the Jews in Israel) dominating another group (the Palestinians) in perpetuity. That intention has purportedly resulted in a widespread set of practices of oppression. In that oppression, Israelis and the Israeli government are guilty of a series of inhumane acts.

However, there is one major difference between “Nazi” and apartheid. The latter has a status in international law. The crime of apartheid is defined by the 2002 Rome Statute of the International Criminal Court as inhumane acts of a character similar to other crimes against humanity “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”.

 “Apartheid” was originally just the ideology and political means used by the National Party in South Africa to win the 1948 general election. In Afrikaans, it means “apartness” and the policy promoted the separation of different racial groups. Each group was to be entitled to their own equal and free social and cultural expression through autonomous political structures. In practice, it meant the domination of one group (White South Africans) over all other groups (Blacks, Coloured, Indians). Further, the most dangerous group to that policy, the vast majority of Blacks, were further divided, in South Africa, along tribal divisions. These policies and practices were backed by domestic law since 1950 to ensure the separation of races.

In 1973, the UN general assembly declared acts of apartheid as constituting a crime under international law through passage of the Convention on the Suppression and Punishment of the Crime of Apartheid. In 2002, the Rome Statute of the International Criminal Court included apartheid as a “crime against humanity” comprising a) “inhumane acts b) an institutionalised regime of systematic oppression and c) the intent of one racial group to dominate any other racial group”.

Apartheid is then characterized as a general rather than a state-specific phenomenon:

  • as the commission of inhumane acts
  • those inhumane acts are similar to “crimes against humanity”
  • they are perpetuated by a system of domination and oppression
  • they require intent, in the Human Rights Watch (HRW) report, the intention of any group to dominate another and not just a racial group.

The 213-page HRW report, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution” (HRW Apartheid Report 27 April 2021), instead of beginning with the alleged pattern of inhumane acts, in part to interpret intent, the report begins with alleged evidence of clear governmental intent to create in perpetuity a system of domination of Palestinians by Jews characterized by a legal system of separation and kept in place through domination and oppression. Thus, one major and critical difference. Apartheid was the pronounced policy of the South African regime from 1948 to 1994 and ended with the election of Nelson Mandela. Apartheid is the inferred policy of Israel by HRW, a policy denied by Israel. Second, the dominant demand for political separation by the Palestinians themselves is effectively ignored in the report. Third, whatever the remaining deficiencies, the dominant pattern since 1967 has been one of transferring increased power to the Palestinians however inadequate and tardy that process of transfer has been.

Further, the policy of separating Jews and Palestinians into two separate and on the surface autonomous political regimes was determined by a UN resolution, accepted by the Jews but rejected by the Arabs. War resulted. The territory politically dominated by Arabs became Judenrein, free of any Jews. The autonomous polity of Israel consisted of almost 20% Arabs in 1948, approximately the same percentage as today. In Israel, the laws treating Palestinian citizens of Israel as a potential fifth column were gradually lifted. Palestinians were elected to the Knesset and today, in professional life, say in medicine, in hospitals one finds that approximately 20% of the staff at all levels are Palestinians.

However, the situation could simply be phenomenal while the structure is, in fact, one of domination and oppression overall. The entire area, including Israel, the West Bank, East Jerusalem and Gaza, contains roughly the same number of Jews and Palestinians (6.8 million), Further, since 1967 and the capture by Israel of both the West Bank and Gaza, and including both the Old City and East Jerusalem, the claim is made that, “Throughout most of this area, Israel is the sole governing power; in the remainder, it exercises primary authority alongside limited Palestinian self-rule.” Even in Area A of the West Bank where one finds the largest percentage of the Palestinian population in 10% of that occupied territory, Palestinians are considered to have limited self-rule over administration and security though Israel controls such issues as registration of occupants, travel, exit and entry. Even in Gaza, according to the Report, Israel is the dominant political authority even though the regime there periodically fires rockets at Israel. Gaza is explicitly governed by self-rule over security issues and administration, though its economy is constrained by Israel and Israeli policies limit entry and exit via Israel though not via the Rafah crossing to Egypt.

The report claims that, “Across these areas and in most aspects of life, Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians. Laws, policies, and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power, and land has long guided government policy.” Since the Israeli withdrawal from Gaza, in what sense can Israel be considered to maintain “control over demographics, political power, and land”? Further, even in the West Bank, the current Israeli government may indeed be determined to maintain overall political power and the use of land, but that determination is divided at the top and divided in practice on the ground. The effective full control governs about 30% of the West Bank while control in the other areas has been gradually ceded to the Palestinians in contrast to the charge of a determination to maintain control.

Does the report not concede this? Israeli “authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity.” (my italics)  

Further, the report claims that, “In certain areas…these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution.” Let me repeat and highlight this assertion. In certain areas…these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution. In other words, Israel is not accused of a general practice of apartheid, but only of the crime in certain areas where the oppressive practices are so severe that they constitute such a crime.

If that is the case, then Israel is being accused of apartheid practices only in certain areas. Which areas? Israel has maintained military authority over Palestinians from 1948 to 1966 in a declining pattern, and then in Gaza again in a declining pattern, and in the West Bank in parts in a declining pattern and in other parts in an increasing pattern, and in East Jerusalem which Israel annexed in an increasing pattern. Further, only in the West Bank is there to be found two legal systems controlled by Israel, the military one for Palestinians under its control and the civil Israeli law for settlers – the latter applying to Israeli Palestinian citizens and characterized by the report as “rights-respecting”. In the West Bank, there is a third legal system of domestic civil law, a mixture of Ottoman, British Jordanian and Palestinian law as well as a fourth system of military law, both under the control of the Palestinian Authority.

By far, the major case for the charge of apartheid comes from Israeli rule over the West Bank, both because of the differential in laws applied to Palestinians versus Jewish settlers and because of the limitations imposed on Palestinian self-rule wherein, “Israel retains primary control over borders, airspace, the movement of people and goods, security, and the registry of the entire population, which in turn dictates such matters as legal status and eligibility to receive identity cards.”

The reality, however, is that in a territory under occupation, the occupying power is obligated to respect the laws in force in the occupied territory, “unless they constitute a threat to its security or an obstacle to the international law of occupation.” In an occupied territory, international law not only commands the existence of two systems of law, but one in which military law trumps civilian law wherever the issue of security is invoked.

In Article 42 of the 1907 Hague Regulations, occupation is defined as applying to territory “placed under the authority of a hostile army” and extends only to the territory where such authority can be exercised and maintained. It is presumed that the army is hostile when it is in occupation contrary to the will of the existing occupation. Under this vague definition, Israel is in occupation of both the West Bank and East Jerusalem but not Gaza.

The report reverts to intent. “A number of Israeli officials have stated clearly their intent to maintain this control in perpetuity.” True enough. But what a “number of officials” state and believe does not make government policy let alone the policy of the state. And even the current Prime Minster, as a hawk on the issue, has contradicted his position at different times. What some officials declare does not establish the intent of the state. This is a far cry from South Africa where apartheid became the stated and actual government policy for over thirty years.

Finally, in criminal law – which is what is being discussed here – innocence is presumed; guilt must be established. The charge of intent is even more difficult to prove and intent must be established for a characterization of apartheid. With these preliminary observations, in subsequent blogs I want to examine the degree of intent in perpetuity and the extent to which it has been established in the report, the sense in which the “peace process” has been part of this effort at perpetuating apartheid, whether annexation, even of only part of the West Bank, would “formalize the reality of systematic Israeli domination and oppression.” Only after that examination will I return to the issue of whether the charge of apartheid against Israel amounts to antisemitism.

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