Human Rights Watch has accused Israel of apartheid. What does it mean?

HRW is the first major rights group to use the term in relation to Israel - a charge vehemently denied by Israel - but will it mean anything more than generating a few headlines? Bel Trew reports

Palestinians burn a representation of an Israeli flag during an anti-Israel protest over tension in Jerusalem, in the southern Gaza Strip (REUTERS)

There are few words which carry such a grave and devastating meaning than apartheid.

While many associate the word with South Africa, it is actually a universal legal term and a crime against humanity and so one of the most serious international crimes.

On Tuesday Human Rights Watch became the first major international rights group to accuse the Israeli authorities of being guilty of committing apartheid against Palestinians.

Israel has vehemently denied the allegations and dismissed HRW’s 213-page report as a “propaganda pamphlet which lacks all credibility” accusing the New York based group of having a longstanding anti-Israeli agenda.

But HRW is not the first to use the damning term.

Palestinian rights groups and analysts have long said Israel’s actions amount to apartheid: a position that, however robustly argued, has for years been dismissed as niche and extremist by Israel’s supporters.

But it has become harder to say it is an outliers’ opinion as a growing number of rights groups and experts have come to similar conclusions. In July last year and then again in January two prominent Israeli rights groups, Yesh Din and then B’Tselem, published position papers concluding that Israel was an apartheid regime.

And now HRW has joined in that chorus.

But what does it mean for Israel, if anything?

In their report - entitled “Threshold Crossed” - HRW goes beyond labelling the alleged crime by calling for accountability including targeted sanctions, the creation of international investigative bodies that could lead to prosecutions, and that future arms and military assistance sales to Israel be conditioned on positive steps the country takes.

However, these are political actions that would require Israel’s allies like the UK to work against what they likely perceive to be their own interests and beliefs.

The Israeli authorities - and the Palestinians for that matter- are already being investigated by the International Criminal Court for international crimes committed in the occupied Palestinian territory.

Israel has roundly rejected the allegations and the probe, saying the ICC has no jurisdiction.

It’s telling that Israel’s allies have also been quick to agree arguing that the ICC is unfairly targeting Israel.  Boris Johnson went one step further, saying in a recent letter that the probe “gives the impression of being a partial and prejudicial attack on a friend and ally of the UK’s”.

And so the UK government is highly unlikely to agree with HRW’s reading or follow through with its recommendations. It is unlikely any country would.

The ICC does have the jurisdiction to look into the crime of apartheid in its upcoming probe. But, according to international law experts, there is no case law. No one knows what kind of evidence judges would demand to find that a state has engaged in apartheid.

“We don’t have jurisprudence at all as it has never been prosecuted,” says Kevin Jon Heller, professorof international law and security at the University of Copenhagen and professor of law at the Australian National University.

“We have definition in the Rome statue we have the Apartheid Convention, but it is completely legally new crime. It is not a straightforward crime. It is extremely factually dependent.”

He said a growing number of rights groups arguing that Israeli is committing apartheid might, however,  lead to “an upsurge of activism” to push states to use universal jurisdiction in order to investigate and prosecute those credibly implicated using their national courts. But that would also be unlikely and heavily resisted by states.

For example, the British government actually changed UK law on universal jurisdiction when Tzipi Livni, a former Israeli minister, had to cancel her trip to London in December 2009 after  an arrest warrant was issued by Westminster magistrates court.

In the UK the law now requires prior approval from the Director of Public Prosecution before an arrest warrant in connection with international war crimes can be issued.

Israeli security forces deploy in Jerusalem's Old City on April 23, 2021, amid tensions following yesterday's clashes between Palestinians and far-right Jews (AFP via Getty Images)

Livni was later granted temporary diplomatic immunity during a visit in 2014.

And so international law experts say they see the HRW report and the growing number of rights groups arguing the same point, as having more of a “symbolic” impact.

It may normalise the use of the term and embolden others to deploy it in the future.

And that is why it will likely see those who vehemently disagree with the findings double down.

The Israeli foreign ministry did not mince its words in its dismissal.

“This report is yet another part of the organization’s ongoing campaign, led by a known BDS supporter, with no connection to facts or reality on the ground,” the statement read.

“The fictional claims that HRW concocted are both preposterous and false.”

In Israeli paper the Jerusalem Post, Israeli academic Gerald M Steinberg accused the New York based rights group of deliberately demonising Israel with “propaganda of apartheid”. He said it intends to “delegitimise the concept of Jewish sovereign equality” by drawing a “direct line to South Africa”.

Wherever you stand on HRW’s arguments, or those of other organisations who have come to the same conclusion, there is a shift. And while they may not make any practical differences right now, it could have profound implications in the future.