New York-based Human Rights Watch says “Israeli authorities have deprived millions of people of their basic rights by virtue of their identity as Palestinians”. Conversely they “methodically privilege” Jewish Israelis, including settlers on the West Bank. 

And so Israel has violated both the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (“Apartheid Convention”) and the 1998 Rome Statute of the International Criminal Court, Human Rights Watch concludes in a detailed 217-page report, titled A Threshold Crossed; Israeli Authorities and the Crimes of Apartheid and Persecution.

Many of Israel’s critics, including some in South Africa, label it as an “apartheid state”. But Human Rights Watch explains that “the report does not set out to compare Israel with South Africa under apartheid or to determine whether Israel is an ‘apartheid state’ — a concept that is not defined in international law”.

Instead, the report concludes that specific acts and policies carried out by Israeli authorities today amount in particularly severe cases to the crimes of apartheid and persecution as defined in the Rome Statute, the Apartheid Convention and other international laws.

On the basis of what it says is extensive research of laws, policies and statements by leading Israeli officials, “Human Rights Watch concludes that the Israeli government has demonstrated an intent to maintain the domination of Jewish Israelis over Palestinians across Israel and the Occupied Palestinian Territory (OPT)”.

“In the OPT, including East Jerusalem, that intent has been coupled with systematic oppression of Palestinians and inhumane acts committed against them. When these three elements occur together, they amount to the crime of apartheid. 

“Israeli officials have also committed the crime against humanity of persecution. This finding is based on the discriminatory intent behind Israel’s treatment of Palestinians and the grave abuses carried out in the OPT that include the widespread confiscation of privately owned land, the effective prohibition on building or living in many areas, the mass denial of residency rights, and sweeping, decades-long restrictions on the freedom of movement and basic civil rights.”

Human Rights Watch said it had written to Israeli Prime Minister Benjamin Netanyahu in 2020 requesting comment on its allegations, but he had not replied.

This week, Israel’s Ambassador to the United States and the United Nations Gilad Erdan issued a statement, saying: “This report is a collection of lies and fabrications, bordering on antisemitic, which is part of the organisation’s ongoing campaign against Israel.

“When the authors of the report cynically and falsely use the term apartheid, they nullify the legal and social status of millions of Israeli citizens, including Arab citizens, who are an integral part of the State of Israel.”

According to the report, hundreds of thousands of Palestinians and their relatives have been denied residency rights in the OPT, largely for being abroad when the occupation began in 1967, or for long periods during the first few decades of the occupation, or as a result of the effective freeze on family reunification over the past two decades. 

And it notes that legislation prohibits Palestinians from the West Bank and Gaza, with few exceptions, from obtaining citizenship or permanent residency in Israel and East Jerusalem, including through marriage.

Though the legislation was originally justified by Israel on security grounds, the report quotes then prime minister Ariel Sharon as candidly justifying it on grounds of ensuring Israel remains “a Jewish state with a massive Jewish majority”.

Israeli authorities have also confiscated more than 200,000ha (2,000km2) of land from Palestinians, making up more than a third of the West Bank, including thousands of hectares that the Israeli authorities acknowledge are privately owned by Palestinians, Human Rights Watch says. Land grabs for settlements and the infrastructure that primarily serves the 441,000 Jewish settlers effectively concentrate Palestinians in the West Bank, according to the NGO B’Tselem, into “165 non-contiguous ‘territorial islands’.”

It notes that the 1.6 million Palestinians living in Israel itself, unlike those in the OPT, have the right to vote and to stand for election to Israel’s national parliament, the Knesset. But it says they still face institutional discrimination, including widespread restrictions on accessing land confiscated from them, home demolitions and effective prohibitions on family reunifications. 

They are “barred effectively from hundreds of small Jewish towns in Israel and concentrated on about 3% of the land”, it says, citing a 2011 law passed by the Knesset permitting towns in the Negev and Galilee with up to 400 households to reject applicants from living there for being “not suitable for the social life of the community” — that is, not Jewish.

By contrast, Israel seeks to maximise the number of Jewish Israelis and the land available to them in Israel as well as the West Bank and East Jerusalem — the latter two of which are “coveted by the Israeli government for Jewish settlement”. In Israel, the report says the Israeli government’s policy of settling people in the Negev and Galilee is clearly designed to favour Jewish Israelis over Palestinians, citing statements from ministers vowing to “Judaize the Galilee”.

Human Rights Watch characterises all of this as a policy of “Seeking Maximal Land with Minimal Palestinians”. 

The stated aim of the Israeli government is to ensure that Jewish Israelis maintain domination across Israel and the OPT. It cites a law passed by the Knesset in 2018, with constitutional status, affirming Israel as the “national state of the Jewish people”, declaring that in that territory, the right to self-determination “is unique to the Jewish people” and establishing “Jewish settlement” as a national value.

It notes that Israel’s occupation of the OPT in 1967 amplified its concerns about demographics — raising fears that Jews would cease to be a majority. Within Israel’s pre-1967 borders, Jews now represent about 81% of the population, and Palestinians 19%. 

But, when the OPT is added, Jews and Palestinians are in rough parity, of about 6.8 million each. The Palestinians comprise 1.6 million citizens of Israel, 2.7 million West Bank identity holders, 0.4 million residents of East Jerusalem and 2.1 million Gaza identity holders.  

“Many of the practices outlined in this report can be traced to the Israeli government’s desire to maintain Jewish control while retaining the West Bank, including East Jerusalem, which adds 3.1 million Palestinians to the land it controls, in addition to the 1.6 million who reside in Israel,” the report says.

It adds that Israeli authorities treat the Israeli settlers and Palestinians who reside in the West Bank, excluding East Jerusalem, under distinct bodies of law — normal civil law for the settlers and military law for the Palestinians. Palestinians experience lesser protection of their civil and political rights such as freedom of movement and freedom of expression and freedom to build; as well as less access to water, electricity, infrastructure and other resources and services — and harsher law enforcement. 

It says that “Israeli authorities have for decades mistreated and tortured Palestinian detainees, using tactics rarely utilised against Jewish detainees”.

“Israeli forces routinely use excessive force, including live ammunition, against Palestinian demonstrators, rock throwers, suspected assailants and others in policing situations when lesser means could have been deployed. 

“Between January 19 2009, and January 31 2021, Israeli security forces killed 449 Palestinians in the West Bank, according to B’Tselem. Many thousands more have been grievously wounded. 

“Settlers, meanwhile, enjoy virtual impunity for criminal acts against Palestinians. Between 2005 and 2019, police closed 91% of the complaints tracked by the Israeli human rights group Yesh Din of reported settler violence against Palestinian persons and property without indicting anyone.”

It says Israel has justified many of the policies documented in the report as responses to Palestinian, anti-Israel violence. However, it contends that many policies such as the denial of building permits in large parts of the West Bank, East Jerusalem and the Negev in Israel, residency revocations for Jerusalemites or expropriation of privately owned land and discriminatory allocation of state lands, “have no legitimate security justification”. 

The report also acknowledges that Israeli authorities do face legitimate security challenges in Israel and the OPT. But restrictions that fail to balance security requirements against human rights — for example by barring only individuals from leaving Gaza rather than barring virtually the whole population from leaving, “go far beyond what international law permits”.

“While officials have sometimes maintained that measures taken in the occupied West Bank are temporary, the government’s actions and policies over more than a half-century make clear the intent to maintain their control over the West Bank in perpetuity,” it says. 

Human Rights Watch recommends that Israel “should dismantle all forms of systematic domination and oppression” and recommends to the Palestinian Authority in the West Bank that it should cease all security coordination with Israel that facilitates the crimes against humanity of apartheid and persecution.

It recommends that the US in particular, but also European and other states, should stop minimising serious Israeli human rights abuses by treating them as temporary symptoms of the occupation that the peace process will soon cure.

Instead, these states should focus on the current reality and address it, including by prosecuting the crimes against humanity in their courts. 

And it says the International Criminal Court prosecutor “should investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid and persecution”.

Human Rights Watch does not name individuals responsible for the crimes it alleges. But it does note that under the principle of command responsibility, leaders, all the way to the top, can be held criminally responsible for crimes committed by their subordinates.

It notes that in March 2021, the International Criminal Court prosecutor had announced the opening of a formal investigation into the situation in Palestine — covering actions of both the Israeli and Palestinian authorities DM