Analysis of HRW’s “Apartheid” Publication
NGO Monitor received advanced copies of a Human Rights Watch (HRW) publication, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution,” scheduled to be released on April 27, 2021. The following analysis highlights the salient themes and fundamental flaws in HRW’s publication.
- The document adds to decades of HRW’s obsessively singling out of Jews and Israel, and rejection of the legitimacy of a Jewish nation state, per se and regardless of policies or borders.
- The contents reinforce the warning of HRW founder Robert Bernstein, in the New York Times, who wrote: HRW “has been issuing reports on the Israeli-Arab conflict that are helping those who wish to turn Israel into a pariah state.”
- In the “apartheid” claim, the HRW publication makes repeated denunciations of what they sinisterly term Israel’s demographic policies, including the 1950 Law of Return that was enacted in the shadow of the Holocaust.
- HRW’s report is part of a concerted NGO campaign over the past 18-months to interject the term “apartheid” into discourse about Israel. Indeed, HRW reiterates, cites, and quotes many of these NGOs in its publication.
- For more than a decade, HRW has played a predominant role in lobbying the ICC to open an investigation against Israel. In supporting the March 2021 decision by the ICC Prosecutor to proceed, HRW demands that she “Investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid or persecution.”
- The claims made regarding Israel and the definition of apartheid under the Rome Statute are fundamentally political, and rejected by many legal experts as distortion and slander.
- To exploit the apartheid claim, HRW and the other NGOs erase the basic nature of the South African regime, which was characterized by systematic, institutionalized oppression, particularly in the realm of political and civil rights.
- The recommendations to the international community repeat the claims HRW has made for 20 years in promoting BDS campaigns against Israel and targeting companies that do business in Israel. Recently, HRW was active in (failed) BDS attacks targeting Airbnb and FIFA, as well as in lobbying intensively for the UN BDS Blacklist.
- Omar Shakir is listed as the author of “Threshold”. He has devoted many years to delegitimizing Israel, and in 2019, his Israeli work visa was not renewed because of his involvement in BDS campaigns, in violation of Israeli law.
- HRW denies Israel’s legitimacy as a Jewish state and reduces all security policies to “demographic objectives.”
- HRW dismisses Israel’s concerns and policies on security in the context of ongoing terror, falsely asserting that security is used “as a justification to advance demographic objectives.”
HRW’s text is part of a renewed NGO push over the past 18-months, attaching the term “apartheid” to discourse on Israel. Capitalizing on their breakthrough in the International Criminal Court (ICC), the NGO network seeks to reinforce political narratives, in contrast to credible factual presentation and legal analysis.
In a broader context, this report is another move in the decades-long series of obsessive attacks against Israel and its legitimacy as the nation-state of the Jewish people. The organization has again demonstrated the accuracy of founder Robert Bernstein’s condemnation, in the New York Times, of HRW for “issuing reports on the Israeli-Arab conflict that are helping those who wish to turn Israel into a pariah state.”
In the political and soft power arenas, the smear of apartheid is particularly potent, repeating propaganda from the 1970s (and earlier), labeling the Jewish State as inherently racist and drawing a direct equivalence to South Africa. Such comparisons delegitimize the concept of Jewish sovereign equality, regardless of borders or policies.
The legal façade is based on the highly selective claim that Israel per se and its policies fit the definition of apartheid under the Rome Statute (the ICC’s founding document). In contrast, many noted legal experts, including Professor Irwin Cotler and Judge Richard Goldstone, have repeatedly demonstrated that labeling Israel as an “apartheid state” is distortion and slander.
To exploit the apartheid claim, HRW and the other NGOs erase the basic nature of the South African regime, which was characterized by systematic, institutionalized oppression, particularly in the realm of political and civil rights. In contrast, and notwithstanding the ongoing ethno-national conflict, Israel’s non-Jewish population has full rights, thus rendering the analogy moot. No other regime, aside from South Africa, has ever been deemed to meet the international definition of apartheid, not even murderous and oppressive regimes practicing separation based on race, religion, and gender such as Saudi Arabia and China. The abuse of the “apartheid” label in the context of the ongoing Israeli-Palestinian conflict is a particularly cynical appropriation of the suffering of South Africans under the actual apartheid regime. (For detailed analysis of the apartheid canard, see NGO Apartheid State Campaign: Deliberately Immoral or Intellectually Lazy?).
For close to 20 years, HRW has backed various BDS campaigns against Israel and companies that do business in Israel. Recently, HRW was active in (failed) BDS attacks targeting Airbnb and FIFA, as well as in lobbying intensively for the UN BDS Blacklist.
“Threshold” was written by Omar Shakir, whose work visa was not renewed by Israel because of his active involvement in discriminatory BDS campaigns.
Reflecting this background, the recommendations to the international community are primarily focused on advancing BDS.
- “All states” should “Impose targeted sanctions, including travel bans and asset freezes, against officials and entities…”
- They should also “Condition arms sales and military and security assistance to Israel…”
- “Subject agreements, cooperation schemes, and all forms of trade and dealing with Israel to enhanced due diligence …and, where not possible, end the activities and funding…”
- The United States government, in particular, ought to “condition military and security assistance to Israel” and “Impose visa bans and asset freezes pursuant to the Global Magnitsky Accountability Act.”
- Repeating the sanctions regimes in Betty McCollum’s 2021 semi-annual anti-Israel bill, HRW demands that the US Administration “Conduct an assessment of and release a public report on the use of US-origin weapons and/or equipment, or Israeli weapons and/or equipment purchased with US funds” and that Congress should “Request a report from the Government Accountability Office (GAO) on  US support to Israel, including funds, weapons, and equipment…”
- HRW calls on the “European Union and its Member States” to identify “the legal consequences and obligations under EU and international law that apply to EU institutions, member states and EU-based private businesses” — in other words, a boycott of Israel by European companies and sanctions by European states.
- Wants the UN to recommend “that member states and blocs of states impose” the “unilateral measures” demanded of “all states” above.
- Asks the UN to create (another) “international commission of inquiry to investigate systematic discrimination and repression based on group identity in the OPT and Israel.” The UN should also investigate “the role of other actors, including companies and officials of other states” — which is to say, to facilitate divestment from companies that work in Israel, as well as sanctions and prosecution of officials from Israel’s allies and aforementioned companies.
- HRW also issues recommendations to “businesses active in Israel and the OPT” that make the unwarranted assumption that they “directly contribute to the crimes of apartheid and persecution.”
Denying Israel’s legitimacy as a Jewish state: The Law of Return
In presenting the argument, the HRW publication repeatedly denounces what they sinisterly term Israel’s “racist” demographic policies. This begins with the claim: “Most significantly in demonstrating Israel’s demographic goals is the 1950 Law of Return.”
The Law of Return provides Jews dispersed around the world access to Israeli citizenship. Nothing in the law discriminates against non-Jewish Israeli citizens and is not unique – other countries, such as Ireland, Spain and Germany, have legislation to simplify emigration for diaspora populations.
More importantly – and evidencing the report’s antisemitic effect, if not intent – HRW deviously erases the context: the Law of Return was enacted in the shadow of the Holocaust, to provide a safe haven for Jews who for centuries suffered persecution around the world. The sharp rise in physical violence and other forms of antisemitism around the world in recent years only highlights the need for Israel as a safe refuge from persecution.
Additionally, the Law of Return is consistent with the standards of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), which mandates “special measures” for the “advancement of certain racial or ethnic groups” to protect the “fundamental freedoms.” As noted by the UN Committee, but erased in the HRW report, this provision seeks to remedy “inequalities resulting from the circumstances of history” … and to “prevent further imbalances from arising.”
Dismissing Israeli Security Concerns and Counterterror measures
HRW dismisses Israel’s legitimate concerns and policies regarding security, especially in the context of ongoing conflict and terrorism. The report claims, without any basis, that Israel uses “security as a justification to advance demographic objectives” and that “many of these abuses…have no legitimate security justifications.”
For instance, HRW claims “the Citizenship and Entry into Israel Law…use[s] security as a pretext to advance demographic objectives.” Blatantly absent in the report is the fact the amendments on citizenship applications from Palestinians in the West Bank and Gaza, were enacted after individuals “who were granted legal status in Israel based on their marriage to an Israeli citizen, and took advantage of their Israeli ID to pass checkpoints and carry into Israel either suicide bombers or explosives.”
Specifically, the change followed attacks in March 2002 that murdered 135 Israelis and injured more than 700. According to the Israeli Justice Ministry, prior to the 2003 amendments, 23 terrorist attacks, including a March 2002 suicide bombing in Haifa that killed 15, were carried out by Palestinians who had abused the prior law to gain access to Israel.
In a May 2017 Knesset Foreign Affairs and Defense Committee hearing, an Israeli security official revealed that, from 2001 to April 2017, 49 Palestinians who had received legal status in Israel as a result of “family unification,” engaged in terrorist activity.
Under international law, countries have the right to set conditions for entry. Such conditions can be made based on the nationality of those who seek to enter. Indeed, the US has a preferred visa program where nationals of particular countries may visit the US without going through the full visa procedures. The ICERD (Art. 1.2) specifically mentions that such distinctions made between citizens (Israelis) and noncitizens (Palestinians) do not constitute racial discrimination.
In addition, most countries do not grant automatic citizenship or even residency rights to non-nationals as a result of marriage to a citizen. There is in fact, no principle in international law for married persons to be able to live in whichever country they choose.
Supporting the Campaign in the International Criminal Court
For more than a decade, as part of the demonization efforts, the NGO network has lobbied the ICC prosecutor intensively, calling for an investigation targeting Israel. HRW has a predominant role in this campaign, pushing the PA to accede to the ICC, pressing the ICC prosecutor, and publishing high-visibility reports with spurious arguments alleging Israeli violations of international law.
On February 5, 2021, the ICC Pre-Trial Chamber in a 2-1 decision confirmed that the Prosecutor could exercise jurisdiction and open an investigation into alleged war crimes committed by Israel in the “State of Palestine”. On March 3, Chief Prosecutor of the ICC Fatou Bensouda announced the launch of a formal investigation.
In “Threshold,” HRW analyzes the definitions of “apartheid” and “persecution” as they appear in the Rome Statute (which forms the basis for the ICC’s functioning), and the developments in the ICC investigation into Israel are discussed in detail.
In the Recommendations section, HRW includes one specifically for the ICC Prosecutor, demanding she “Investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid or persecution.” In addition, it asks the UN to “collect and preserve evidence related to abuses for future use by credible judicial institutions” (see below), and “all states” to “Investigate and prosecute…under the principle of universal jurisdiction.”
Absurdly, given the Palestinian and NGO exploitation of the ICC to push politically-motivated prosecutions of Israel, HRW demands that Israel “Ratify the Rome Statute.”
In this context, it is worth noting that in September 2017, four Palestinian NGOs (Al-Haq, PCHR, Al-Mezan, Al-Dameer – all linked in various ways to the PFLP terror group), submitted a 700-page document to the Prosecutor of the ICC, alleging that “Israel persecutes the occupied Palestinian population and subjects them to the crimes of persecution and apartheid” (emphasis added). HRW’s report is clearly meant to support this particular aspect of the campaign against Israel at the ICC.
Cutting and Pasting from like-minded political NGOs
HRW cites to and reiterates claims by numerous Israeli and Palestinian political advocacy NGOs – all of which are funded by European governments. B’Tselem is the most frequently cited NGO in the report, including its January 2021 campaign accusing Israel of “Jewish supremacy.” Also appearing are Israel-based NGOs: Zochrot, Bimkom, Gisha, Kerem Navot, Adalah, Ir Amim, and HaMoked. Palestinian NGOs include: Al-Mezan, Al-Haq, Addameer, and Applied Research Institute Jerusalem (ARIJ).
In the Acknowledgements section, HRW recognizes the contributions of officials from B’Tselem, Gisha, Kerem Navot, and International Crisis Group; Diakonia, a Swedish anti-Israel propaganda group, which provided a “legal memorandum addressing legal issues related to the report”; NGO lawyer Michael Sfard; Sari Bashi, an HRW “consultant” and an employee of a new NGO named DAWN; and former NGO official Nathan Thrall. Infographics from Visualizing Palestine appear on pages 11, 34, 49, 60, 79, 88, 110, 155, and 171.
HRW also cites the discredited UN Economic and Social Commission for Western Asia report accusing Israel of apartheid “beyond a reasonable doubt” (2017). This document was rescinded by the UN Secretary-General because of its use of the apartheid slur, promotion of BDS, and the anti-Israel backgrounds of its authors.
“Highlights” of HRW’s history of singling out Israel and Jews: 2001-2021
- In September 2001, HRW was among the leaders of the NGO Forum at the UN Durban Conference, where, in South Africa, the focus was on transferring the “apartheid” label to Israel. The Forum’s Final Declaration referred to Israel and apartheid repeatedly, and calling for the “complete international isolation of Israel as an apartheid state.” When Executive Director Kenneth Roth was criticized for HRW’s role, he replied, “Clearly Israeli racist practices are an appropriate topic.”
- Roth and other HRW personnel frequently refer to “Jim Crow-like separate-and-unequal treatment of Palestinians,” adding the entirely inappropriate analogy from US practices to the apartheid label.
- In July 2006, in responding to a critique of HRW’s reporting of the Lebanon War, Roth stated: “An eye for an eye – or, more accurately in this case, twenty eyes for an eye – may have been the morality of some more primitive moment. But it is not the morality of international humanitarian law…” The New York Sundecried this statement as a “slur on the Jewish religion itself that is breathtaking in its ignorance… To suggest that Judaism is a ‘primitive’ religion incompatible with contemporary morality is to engage in supersessionism, the de-legitimization of Judaism, the basis of much antisemitism.”
- In September 2009, “senior military analyst” Marc Garlascowas revealed to be an obsessive collector of Nazi memorabilia. He was suspended and then dismissed, but his reports were not withdrawn.
- During the 2014 Gaza confrontation, Roth and other HRW officials retweeted an advertisement from a shadowy group (the Jewish Anti-Zionist Network) in the New York Times and Guardian that equated “Nazi genocide” with ‘the massacre of Palestinians in Gaza.’ The text condemns Israel for ‘colonialism, racism, and genocide,’ and unnamed ‘right-wing Israelis’ are compared to Nazis.
- Roth blamed Israel’s policies for a series of antisemitic attacks on Jews in Germany.
- In the context of the 2017 white supremacist march in Charlottesville, Roth tweeted a link to a propaganda piece headlined “Birds of a feather: White supremacy and Zionism.” Roth included a picture depicting a Confederate and Israeli flag, commenting “Many rights activists condemn Israeli abuse & anti-Semitism. Some white supremacists embrace Israel & anti-Semitism.”
- HRW’s long-time MENA director Sarah Leah Whitson repeated classic antisemitic tropes and conspiracies, accusing American Jews of racism and comparing Israel to US segregation.
- Throughout this 20 year period, Roth and HRW have pressed the ICC prosecutor to open investigations of “Israeli war crimes”, linked to the apartheid campaign
 On February 5, 2021, the ICC claimed jurisdiction in order to open an investigation into alleged war crimes committed by Israel in the “State of Palestine,” and on March 3, the Chief Prosecutor of the ICC, Fatou Bensouda announced the launch of a formal investigation.
 Summary based on Gerald M. Steinberg, “Human Rights Watch’s anti-Israel Agenda”, Israel Affairs, 27:1, 2021 pp. 34-56.