A new and unique report by Barrister Joshua Kern of 9 Bedford Row and NGO Monitor Legal Advisor Anne Herzberg, both experts in international law, examines in detail the legal definition of apartheid. The report comes as non-governmental organizations (NGOs) have increasingly been applying the “apartheid” label to Israel, lobbying the International Criminal Court to charge Israelis with this crime and bolstering related campaigns at the United Nations.

Apartheid is a grave accusation, but claims of apartheid have been made imprecisely and casually by many NGOs. As discussed in the report, the definition of apartheid is untested in international law as no court has yet examined the crime, and there is comparatively little legal writing available. The report addresses this legal vacuum and provides a full analysis grounded in international law of the elements of apartheid as a crime against humanity.

The report also provides a history of the evolution of the apartheid label as applied to Israel, which began with antisemitic Soviet and Arab propaganda in the 1950s and continued through the Cold War and the 1975 “Zionism is racism” resolution. In 2001, the NGO Forum at the UN Durban Conference embraced this delegitimization campaign by promoting a new and unique definition of apartheid reserved exclusively for Israel. Since then, Human Rights Watch, B’Tselem, and other NGOs have promoted manufactured definitions of apartheid that are not legally substantiated.

NGO Monitor Anne Herzberg commented: “The charge of “apartheid” has been used for decades as a means to delegitimize the right of Jews to sovereign equality in their historic homeland and to characterize Jewish self-determination as a violation of the international legal order. In recent years, NGOs have joined this campaign inventing a legal definition of the crime of apartheid aimed at Israel alone. This report exposes and corrects the false NGO claims. It offers a complete legal analysis of the crime of apartheid as it currently exists in international law, rather than the fabricated and politically motivated definitions provided by NGOs like Human Rights Watch.” 

In early 2022, NGO Monitor will issue a companion report, assessing whether apartheid, as defined here, is applicable to Israel and territories under its administration.

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Alex Winston