Uncomfortable truths: how HRW errs in its definition of “Israeli apartheid”, what is missing, and what are the implications?

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The discourse on apartheid in the Israeli-Palestinian context has evolved. Coinciding with the formal opening of an investigation by the ICC (as well as the admissibility decision in the inter-State proceedings initiated by Palestine before the CERD – see here), between January and June 2021 several organisations and authors – most notably Human Rights Watch (in A Threshold Crossedhere) – have alleged that Israeli officials are responsible for the crime against humanity of apartheid. It will be of concern to some readers, and no surprise to others, that in the discourse alleging commission of this crime, not one of these reports begins to undertake a complete legal analysis of its definition.

This post begins to explore some of the legal consequences of this position, where a grave allegation of crimes against humanity is being made by civil society actors and there is a subsisting absence in both scholarship and reporting on the content of the elements of the crime. It explores the problematic nature of the definition of the crime proposed by Human Rights Watch and argues that it lacks a legal basis in treaty or customary law. The post questions whether apartheid exists as a crime against humanity under customary international law at all, or simply exists as a customary inter-State prohibition and treaty crime. It argues that Human Rights Watch have manufactured a definition of apartheid which has been tailored to the facts (as they perceive them) and have failed to provide meaningful definitions to core elements of the crime. It accordingly proposes a suggested definition of the elements of “oppression” and “domination” of its own, and highlights some of the problems involved with their application to the Israeli-Palestinian conflict.

The Human Rights Watch definition of apartheid is incomplete and wrong

Human Rights Watch claim that the “crime of apartheid under the Apartheid Convention and Rome Statute consists of three primary elements: an intent to maintain a system of domination by one racial group over another; systematic oppression by one racial group over another; and one or more inhumane acts, as defined, carried out on a widespread or systematic basis pursuant to those policies” (A Threshold Crossed, p. 5-6).

This definition omits distinctions which exist between the Rome Statute’s and the Apartheid Convention’s definitions. For example, under the Rome Statute, the prosecution must prove the existence (actus reus) of a system of domination (in addition to systematic oppression) by one racial group over another. It is not enough simply to prove an intent (mens rea) to maintain such a system. With respect to the nature of the intent, the texts of the Apartheid Convention and the Rome Statute also differ. The Rome Statute’s mens rea encompasses the intent to maintain a regime of systematic oppression and domination by one racial group over another. The Apartheid Convention requires proof of acts committed for a “purpose” of establishing and maintaining domination by one racial group over another, and systematically oppressing them.

The fact that the discourse fails to draw attention to these fundamentals is problematic for several reasons. It creates confusion between the lex lata and the lex ferenda. Teleological attempts to frame international crimes with the broadest possible definition are also inconsistent with the principle of legality and the presumption that the definitions of crimes shall be strictly construed.

Irrespective of intention, the effect is to steer the conversation away from the implications of the crime of apartheid’s unsettled nature and status under customary international law. (This is in contradistinction to the inter-State prohibition of apartheid which, considering near-universal ratification of its prohibition in the International Convention for the Elimination of All Forms of Racial Discrimination, appears beyond doubt.) However, Human Rights Watch do not address the customary status of the crime under customary international law or its lack thereof.

Professor Dugard and Dr Reynolds appeared to accept in 2013 (here) that it was doubtful that apartheid as a crime against humanity had crystallised under customary international law (regardless of whether its prohibition was of a peremptory nature). Considering the absence of universal acceptance of apartheid’s existence as a crime against humanity in either the Apartheid Convention or the Rome Statute, as well as its definition as such, and noting that Human Rights Watch do not even claim that its definition is grounded in customary international law, it cannot be argued that custom provides the basis for the proposed definition. As the definition elides the Rome Statute’s and the Apartheid Convention’s definitions together in an impermissibly expansive way (by omitting elements contained in both instruments which serve to limit the scope of the crime’s subject matter) and it is not argued that this exercise has been performed with regard to the views of States, to judicial authority, nor to any legal, moral or policy-based reasoning, the definition proposed by Human Rights Watch should be rejected.

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