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May 5, 2021 12:31 pm
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Human Rights Watch’s Evolving Definition of Apartheid

avatar by Elder of Ziyon

Opinion

The Temple Mount in Jerusalem, March 20, 2020. Photo: Reuters / Ammar Awad.

If Israel is guilty of “apartheid,” as Human Rights Watch (HRW) and B’Tselem now say, what changed that those organizations didn’t use the word beforehand?

Israel’s policies are identical to what they were 10 and 20 years ago, and arguably they were actually worse before Oslo — when all Palestinians really were under direct Israeli control, and not the tiny percentage that are today.

HRW wrote a 170-page report in 2010 called “Separate and Unequal” that specifically attacked Israel as treating Palestinians in a discriminatory way.  Surely, if a sober legal analysis from HRW today concludes that Israel is practicing apartheid (and persecution,) they would have mentioned it then in a report that was entirely about accusing Israel of discriminatory practices.

Yet neither argument was used.

One footnote does mention apartheid, though, and it is worth looking at.

HRW mentions a 2008 lawsuit brought against Israel by the Association for Civil Rights in Israel (ACRI) re: banning Palestinians from major highways. Israel’s Supreme Court actually agreed that Palestinians should have access to those roads except in extreme security circumstances — another contradiction to HRW’s entire thesis.

ACRI’s lawsuit did accuse Israel of apartheid, though — something that HRW was clearly aware of since it partially quotes the president of the Court, who took great exception to that characterization.

President Dorit Beinisch wrote that ACRI’s use of the word apartheid was wrong and insulting, and her words then are a short and powerful rejoinder against the modern antisemites making that accusation today [emphasis added]:

Even if we take into account the fact that absolute segregation of the population groups traveling on the roads is an extreme and undesirable outcome, we must be careful to refrain from definitions that give a connotation of segregation, based on the unworthy foundations of racist and ethnic discrimination, to the security means enacted for the purpose of protecting travelers on the roads. The comparison drawn by the Petitioners between the use of separate roads for security reasons and the apartheid policy which was formerly implemented in South Africa and the actions that accompanied it, is not a worthy one. The apartheid policy constituted an especially grave crime and runs counter to the basic principles of Israeli law, international human rights law, and the provisions of international criminal law. It was a policy of racist segregation and discrimination on the basis of race and ethnic origin, founded on a series of discriminatory practices, the purpose of which is to create superiority for members of a certain race and to oppress members of other races.

The great distance between the security measures practiced by the State of Israel for the purpose of protection against terrorist offensives and the reprehensible practices of the apartheid policy makes it essential to refrain from any comparison with, or use of, the latter grave expression. Not every distinction between persons, under all circumstances, necessarily constitutes improper discrimination, and not every improper discrimination is apartheid. It seems that the very use of the expression “apartheid” actually detracts from the extreme severity of the crime in question – a crime that the entire international community joined forces to extirpate, and which all of us condemn. Accordingly, the comparison between preventing Palestinian residents from traveling along Road No. 443 and the crime of apartheid is so extreme and disproportionate that it should never have been made. 

In its 2010 report, HRW did not take exception to this paragraph, and even summarized it in footnote 44.

Then as now, Human Rights Watch was looking for any excuse to attack Israel in ways far beyond how they discuss every other nation. If it thought that Israel was guilty of apartheid, it would have not only mentioned it, but highlighted it.

Nothing’s changed since then — except that in the run up to the 20th anniversary of the Durban conference — which did accuse Israel of apartheid — NGOs who were in the forefront of pushing a pure antisemitic agenda then are coordinating to push it again today. Suddenly, “new” legal arguments are being found to accuse Israel of new crimes.

The law hasn’t changed. The circumstances haven’t changed. The only thing different today is that the NGOs feel that the political environment is amenable to making these accusations against Israel — all while they pretend to be objective arbiters of law and human rights.

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