Amnesty International and the Apartheid Claim Against Israel

Context

In the past, Israeli prime ministers have been among those repeatedly warning that rule over the Palestinians could lead to apartheid – for example, David Ben Gurion in 1967, Itzhak Rabin in 1976, Ehud Barak in 1999 and Ehud Olmert in 2007. While the Amnesty report was dismissed by the current Israeli government as “false, one-sided and anti-Semitic”, it has none­theless fuelled a pluralistic debate in Israel. Advocates of different positions across the entire spectrum of opinions are having their say. The concept of apartheid is by no means rejected across the board by Jewish Israelis to describe the situation in the coun­try (including even some who do not belong to the post-Zionist minority). And in a representative survey of the Jewish elec­torate in the US conducted in 2021, 25 per cent of respondents agreed with the state­ment that Israel is an apartheid state.

The apartheid claim also appears in a whole series of recent reports and position statements, including a report by the UN Eco­nomic and Social Commission for Western Asia, which was later withdrawn under pressure from the UN Secretary-Gen­eral, and other such documents by Pales­tinian, Israeli and international human rights organizations. Moreover, in 2018, the State of Palestine filed an inter-state com­munication against Israel under Article 11 of the racial discrimination convention for discriminating against the Palestinian popu­lation in the occupied territories, in­cluding East Jerusalem, on the ground of national or ethnic origin. After considering the issues of jurisdiction and admissibility, the Committee on the Elimi­nation of Racial Discrimination accepted the complaint in April 2021 and decided to establish an ad hoc Conciliation Commission.

The reports and documents can be roughly divided into three categories:

1. Those that accuse Israel of having estab­lished a system of apartheid in the occu­pied territories, especially in the West Bank, including East Jerusalem (see, for example, Yesh Din, Human Rights Watch, the Policy Working Group and the State of Palestine);

2. Those emphasizing that institutionalized discrimination constituting the crime of apartheid can also be found in Israel (see, for example, B’Tselem); and

3.

AI‘s approach, which goes beyond a ter­ritorial understanding of apartheid to include Israel’s behaviour towards the Palestinian refugees.

What the AI Report Claims

AI argues that since the State of Israel was founded in 1948, its policies, legislation and practices have all been determined by the overriding goal of establishing and main­taining a Jewish demographic major­ity and maximizing Jewish-Israeli control over land. Successive Israeli governments have knowingly instituted a system of oppression and domination over Palestin­ians, accord­ing to the human rights orga­nization.

The report describes in detail a differentiated system of various types of discrimination and restriction of rights. It argues that this system includes segregation in the West Bank, which is characterized by, among other things, two separate legal and adminis­trative systems, one for the Palestinian popu­lation and the other for Jewish-Israeli set­tlers. The report also argues that the system includes restricted access to agricultural land in the Gaza Strip and to fishing areas in the region’s coastal waters, which has exac­er­bated the socioeconomic effects of the Israeli blockade – an act that is in contra­vention of international law. And the dras­tic restrictions of the freedom of movement of the Palestinian population of the West Bank and Gaza are seen in the report as part of this system, too.

Moreover, Amnesty argues, the system provides for a privileged national status of the Jewish citizens of Israel that is distinct from citizenship and forms the basis for unequal treatment. The AI report maintains that institutionalized discrimination in Israel includes measures such as the confis­cation of Palestinian land and property on a large scale (especially in 1948 and the years that followed), ongoing discrimination in land use and a policy of the intentional settle­ment of Jewish Israelis in the Negev and the Galilee, that is, in areas that origi­nally had a Palestinian majority population.

Ultimately, according to AI, the impact of Israel’s population policy on both sides of the Green Line is that the Palestinian popu­lation is displaced from parts of the Negev, East Jerusalem and the C areas of the West Bank. In addition, the human rights organi­zation says that Palestinians are seen as a demographic threat, which is why, it con­tends, Palestinian refugees are withheld the internationally guaranteed right of return and Palestinians married to Israeli citizens living in Israel are denied reunification with their spouses.

AI is by no means suggesting that the situation in Israel is the same as that in the occupied Palestinian territories, as is often claimed. However, Amnesty regards the state of affairs in Israel as an integral part of a comprehensive system and as the result of efforts to safeguard the Jewish character of the State of Israel through the establishment and maintenance of a Jewish majority and Jewish control over land. While Am­nes­ty stresses that measures taken by Israel to ensure the security of its citizens are legitimate, it notes that they must be pro­portionate. In this context, it points out that many discriminatory measures cannot be justified on security grounds – for example, denying seriously ill Palestinians from the Gaza Strip access to medical treat­ment in Israel or even in the West Bank.

Conclusions and Recommendations

The AI report is likely to strengthen the apartheid claim in societal debates around the globe. At the same time, owing to the framing of its accusations, there is little chance that the report will bring about the intended change of behaviour in Israel or prompt Israel’s friends and allies to step up pressure accordingly. Because even if it does not explicitly deny Israel’s right to exist, in the final analysis, it does call into question Israel’s understanding of what constitutes a Jewish state.

Nevertheless, efforts to initiate court pro­ceedings in accordance with the prin­ciple of universal jurisdiction will probably be made in those states where the legal frame­work permits. In Germany, for exam­ple, geno­cide, war crimes and crimes against humanity – including the crime of apart­heid – can all be prosecuted under the In­ter­national Criminal Code of 2002, regard­less of where and by whom those crimes were committed. It is also likely that the Palestinian leadership and its international supporters will attempt to persuade the Inter­national Criminal Court to widen its criminal investigation of crimes committed in the Palestinian territories since 2014 to rule on whether the accusation of apartheid is justified.

The EU and its member states should neither adopt nor dismiss the apartheid claim until it has been carefully examined by the competent bodies. But they should view the AI report as a wake-up call to no longer accept grave human rights violations as normal and to not regard the ongoing occu­pation as a state of affairs that exists detached from a “democratic Israel”. In any case, the well-documented violations of the Geneva Conventions incur a direct obliga­tion under international law for the con­tracting parties to enforce compliance with those treaties. Since breaches of inter­national law and human rights violations committed by Israel, the Palestinian Author­ity and Hamas are not sanctioned and alleged war criminals not prosecuted, the parties to the conflict are, in effect, being invited to continue breaking the law. The basis for peaceful coexistence can hardly be laid in this way. The enforcement of human rights is not an obstacle to constructive conflict transformation; on the contrary, it is a prerequisite for the viability of any settlement.

In this vein, concrete recommendations can be drawn from the Amnesty report for a rights-based European approach to con­flict transformation:

• Support the (ongoing) investigation by the International Criminal Court of alleged crimes under international law in the Palestinian territories both politically and – should proceedings be ini­tiated – in fulfilment of obligations under the Rome Statute by providing legal assistance and, in this context, also support the investigation of the apart­heid claim;

• Provide political support to commissions of inquiry focused on human rights vio­lations in the Israeli-controlled territories (such as the commission formed by the UN Human Rights Council in May 2021) and the ad hoc Conciliation Commission established under the racial discrimination convention within the framework of the inter-state communication brought by Palestine;

• Urge Israel to cooperate with the UN High Commissioner for Human Rights and the UN human rights rapporteurs;

• Assist human rights defenders not only financially but also politically when they are up against delegitimization cam­paigns (this applies, in particular, to the six Palestinian human rights and civil society organizations that Israel designated as terrorist in October 2021); and

• Review military cooperation with Israel (rigorous scrutiny should be applied not only to exports of goods that could lead to a worsening of the human rights situa­tion but also to those forms of co­operation through which Europeans benefit from Israel’s experience in the context of occupation).