Alan Baker / JNS.org
Illustration with the logo of Amnesty International on the vest of an observer of a demonstration in Paris, France, Paris, on Dec. 11, 2021. Photo: Xose Bouzas / Hans Lucas via Reuters Connect
Much has been written about the Feb. 1, 2022 Amnesty International report alleging that Israel practices apartheid against the Palestinians.1
From its opening paragraphs and throughout, this report is rife with over-generalized and sweeping accusations and irresponsible value judgments, all of which do nothing but prejudice any claim to professionalism and credibility on the part of the authors of the report, as well as of the organization that has endorsed it.
Any objective or even non-objective reader cannot but observe the bitter fixation, extreme prejudice and blatant hatred of Israel emanating from every line of the report, even to the extent of questioning Israel’s very legitimacy and right to exist.
This intense hatred is so apparent to the eye that it places in question any genuine motivation or aim, as claimed by Amnesty International in its founding principles, that it is an organization “independent of any political ideology,”2 that it does not intervene in political questions, and that it is fair and objective.
On the contrary, through the clear lack of objectivity, the one-sidedness and extreme bias that radiate from every chapter, page and sentence in the report, Amnesty International does not even pretend to conceal its hostility towards and fixation with Israel.
The Amnesty report willfully and deliberately distorts and misrepresents the circumstances surrounding the historic development of the State of Israel. Moreover, through its biased and one-sided presentation and selective value judgments, it ignores, sidelines and downplays the existential dangers that Israel has faced and continues to face from its neighbors and its immediate regional surroundings since its establishment, including ongoing, violent Palestinian terror directed against Israel’s civilian population and territory.
The report blatantly ignores the inherent rights to which Israel is entitled in international law and practice to defend its territorial integrity and protect its civilian population from attack, terror and violence.
In what openly appears to be a perverted, partisan and deceptive manner, the report is drafted in such a way as to willfully misrepresent Israel’s legislative system and governance, social and economic policies, and basic rights as a democratic state.
One can only conclude that the authors of the report, together with the Amnesty International organization as a whole, entertain one and only one overriding purpose — to instill into the international public consciousness the false and misguided notion that Israel, from its establishment, is an illegal, apartheid regime.
They do this through the cynical and selective copying and transposing of terminology and phrases used in international instruments defining the crime of apartheid and crimes against humanity (including the 1976 International Convention on the Suppression and Punishment of the Crime of Apartheid3 and the 1998 Rome Statute of the International Criminal Court4). Through superficial and transparent legal acrobatics, they willfully go to great efforts throughout the report to copy-paste and transpose this international terminology onto the situation of Israel.
The incessant repetition ad nauseam of oft-used, hackneyed and clichéd buzzwords taken, often out of context, from U.N. political resolutions and other forms of international partisan documentation, only adds to the evident bias and lack of credibility of the report.
Sadly, the extreme nature of its distasteful fixation against Israel, as demonstrated in this report, cannot but serve to permanently stain and prejudice Amnesty International’s credibility and reputation, as well as any notion of dignity that its founding fathers intended it to have.
A compendium of countless false accusations
From the large number of ill-advised and misleading accusations contained in the Amnesty report, the following examples are indicative of the questionable methodology adopted by the authors throughout the report, with the aim of misleading, manipulating and even “brain-washing” readers into accepting false allegations and value judgments:
“Territorial fragmentation and segregation”
This accusation appears to form the axis around which Amnesty International builds its apartheid claim against Israel and is repeated fixatedly and incessantly throughout the report, including the absurd allegation that Israel “coerces Palestinians into enclaves within the State of Israel … and in the West Bank and Gaza Strip.”
Curiously, the term “fragmentation” appears to have been adopted by the authors of the report, even though the term, in and of itself, does not appear in any of the authoritative definitions, descriptions and formal elements of the crime of apartheid, and does not appear in relevant documentation regarding any other crime against humanity.
It is not, by any standard, a crime.
In every multicultural society throughout the world, different nationalities, races, religions and cultures, including those with a common language, reside together. This is a natural, social inclination.
Whether in areas, cities and villages throughout the United States, Canada, Australia, the UK, Ireland, Scandinavia, Switzerland, Belgium, Austria, the Far East and elsewhere, people of shared cultures and languages live together in their own communities as part of their national whole. This includes New York, Geneva, Bradford, Belfast, Ottawa, Montreal or anywhere else where communities with common languages and cultures live together. Such social fragmentation is not apartheid.
While Amnesty International does not consider such social and cultural fragmentation anywhere else throughout the world as apartheid, it has nevertheless manufactured and is attempting to apply the false, selective and discriminatory criterion only with regard to Israel and Israel’s governance of the disputed territories.
Since this form of legal acrobatics is applied solely to Israel, and in a most negative connotation, it is in itself discriminatory and unacceptable.
Israel’s multicultural population — Jews, Muslims, Christians, Druze and others, whether religious or non-religious — live in communities that serve their social and spiritual needs. This cannot, by any objective criterion, be considered to be “territorial fragmentation and segregation.” It is an accepted way of life in any society.
To artificially and cynically distort and misrepresent this about Israel by falsely alleging that Israel is responsible for the “fragmentation of the Palestinian people,” in order to maintain an “overall system of oppression and domination,” and that it deliberately intends to “coerce Palestinians into separate enclaves” is a willful and false exaggeration.
Years ago, a visiting US senator asked Jerusalem Mayor Teddy Kollek, “Is Jerusalem a melting pot?” Kollek responded, “A melting pot will not work here. Jerusalem is a mosaic, made up of many distinct pieces that together create a beautiful picture.”5
“Israel responded with a ruthless 11-day military offensive against Gaza”
The selective and one-sided presentation of facts in the Amnesty report is exemplified by its slanted and misleading description of the circumstances surrounding the May 2021 hostilities between the Hamas terrorist rulers of the Gaza Strip and Israel.
The authors of the Amnesty report found it necessary and unavoidable and politically correct to pay minimal lip service to the fact that “Palestinian armed groups fired indiscriminate rockets into Israel from Gaza.”
However, such minimal lip service appears to have overlooked that those unidentified “Palestinian armed groups” were the terror organizations Hamas and Islamic Jihad, and that the “military offensive” was initiated by Hamas, to which the Amnesty writers concluded that Israel had no inherent right, prerogative or duty to defend itself and its population.
The authors of the report appear to have overlooked the fact that more than 4,000 rockets were fired indiscriminately into Israel’s civilian population centers, in violation of every basic humanitarian norm known to and practiced in international law and practice.
They appear to have overlooked that thousands of Palestinian residents in the Hamas-controlled Gaza Strip were placed by the Hamas leadership in immediate danger and used as human shields, in further violation of international humanitarian norms. Misfired Hamas rockets fell short and landed on civilian housing in Gaza, and killed scores of people.
Schools, medical establishments, business premises and private homes were commandeered to conceal rocket emplacements and ammunition storage facilities. Hundreds of kilometers of tactical tunnels underneath civilian centers, public roads and institutions served the Hamas terror infrastructure in its military activities against Israel, thereby endangering the civilian population above those tunnels.
However, rather than accurately and honestly presenting these facts and acknowledging Israel’s right under international humanitarian law to defend itself against such attacks and to act against such military objectives, Amnesty International preferred to overlook and conceal the facts from the readers of its report, and cynically and deceitfully chose to accuse Israel of conducting “a ruthless 11-day military offensive.”
“Forcefully evicting Palestinian families from the Sheikh Jarrah neighborhood of Jerusalem in order to transfer Jewish settlers”
Amnesty International is deliberately misleading the readers of its report.
The issue of the Sheikh Jarrah/Shimon HaTzadik neighborhood in Jerusalem is a long-running, civil real-estate litigation with religious and historic overtones, dating back to the pre-1948 British mandate era. It has been under scrutiny in Israel’s courts since 1972. It involves legitimate, competing property claims by Jewish owners and Palestinian tenants and squatters.
The authors of the Amnesty International report failed to ascertain and present the factual circumstances of the issue. They chose instead to augment their fixated “fragmentation” accusation by blindly adopting and repeating the false, partisan Palestinian accusation against Israel of “a sustained campaign to expand illegal Israeli settlements and transfer Jewish settlers.”
Furthermore, by accusing Israel of arbitrarily arresting “peaceful demonstrators” and dispersing them with “excessive force,” Amnesty International chose to deliberately ignore and misrepresent the violent nature of the demonstrations organized by the Palestinian leadership.
“Israel’s long-standing, unlawful air, sea and land blockade separating Gaza from the West Bank”
In arbitrarily determining that Israel’s maritime blockade of the Gaza Strip is “unlawful,” and in presenting this as a further example of fragmentation and separation imposed by Israel, Amnesty International is deliberately misleading readers of its report and ignoring the findings of the official “Panel of Inquiry on the 2010 Flotilla Incident” established in 2010 by the UN secretary general, according to which: “The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”6
“Attacks on Palestinian civil society by misusing counter-terrorism legislation to outlaw six prominent organizations”
The authors of the Amnesty report present to the readers the flawed claim that six “prominent Palestinian civil society organizations” are genuine, innocent human-rights organizations within Palestinian civil society. Once again, the authors of the Amnesty report are misleading and manipulating readers into believing that Israel randomly and illegally outlawed such organizations as part of what Amnesty claims is Israel’s “ongoing oppression and fragmentation of the Palestinians.”
However, as presented to the international community and international media, the Oct. 2021 Israeli decision outlawing six Palestinian NGOs with direct connections to terror organizations was in full accordance with international law norms and obligations as set out in international counter-terrorism conventions and resolutions.
In outlawing those organizations, Israel stressed their connection to and support for the Popular Front for the Liberation of Palestine (PFLP) terror organization.
Clearly, supporting terror outweighs activities ostensibly carried out by such organizations as a cover for terrorist activity.
The linkage between the organizations and the PFLP renders them eligible — and deserving — of criminalization in accordance with provisions of the relevant UN conventions and resolutions.
Such instruments include United Nations Security Council Resolution 1373 (2001), which calls for the criminalization of “willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used … in order to carry out terrorist attacks.”8
Other similar instruments criminalizing organizations and groups supporting and financing terror include Security Council Resolution 2642 (2019)9 and the International Convention for the Suppression of the Financing of Terrorism (Financing Convention) (1999).10
As a protection against the PFLP’s active and ongoing actions to undermine Israel’s security and the safety of its citizens, Israel, therefore, is justified in designating PFLP-linked NGOs as terror groups and, as such, protecting itself against prevailing threats to peace and security.
“Suspension of all family reunification procedures for Palestinian residents”
Amnesty International accuses Israel of arbitrarily preventing family unification procedures for Palestinians seeking Israeli citizenship for purposes of marriage. Amnesty presents this as a further example of Israel’s policy of fragmentation and oppression of the Palestinian population.
Like every sovereign state, Israel has the absolute prerogative to grant citizenship, or alternatively to prevent or limit the acquisition of its citizenship, in light of public safety, security and other considerations. This is a prerogative that all nations observe.
The ultimate sovereign prerogative of states to limit immigration and acquisition of citizenship, through legislation, based on their vital interests, is acknowledged by international law and practice, including UN documentation on rights of immigration, while acknowledging the centrality of human rights considerations in granting immigration rights and citizenship.
Israel’s need to restrict rights of residence and acquisition of citizenship by marriage and family unification has been rendered necessary, due to a history of acts of terror committed by those Palestinians who have chosen to abuse the freedoms inherent in their newfound Israeli citizenship.11
Ongoing security instability and incitement to terror and payment of financial incentives by the Palestinian leadership have left Israel little choice but to temporarily restrict the acquisition of Israeli citizenship for purposes of marriage, despite the difficulties that this causes to those genuinely seeking family unification.
The irresponsible, ill-advised and misleading criticism by Amnesty International, as part of its persistent fixation against Israel, deliberately conceals from the readers Israel’s basic sovereign rights and prerogatives regarding the granting of its citizenship.
“Overall system of oppression and domination by Israel … [creates] a separate legal and administrative regime to control the occupied territories”
The claim by Amnesty International that Israel’s system of “oppression and domination over Palestinians,” both within Israel and in the “occupied Palestinian territories,” amounts to apartheid is a false and malicious claim devoid of factual or legal basis.
The Arab population is neither oppressed nor dominated and enjoys to the fullest extent all the rights, privileges and obligations of Israeli citizenship as promised in Israel’s Declaration of Independence and set out in Israel’s basic constitutional legislation.12
South African Judge Richard L. Goldstone, who headed a UN Human Rights Council investigation of the 2008-2009 Gaza war, wrote in an article in The New York Times on Oct. 31, 2011, entitled “Israel and the Apartheid Slander”: “In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the Rome Statute: ‘Inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups with the intention of maintaining that regime.’ Israeli Arabs — 20 percent of Israel’s population, vote, have political parties and representatives in the Knesset, and occupy positions of acclaim, including on its Supreme Court. Arab patients lie alongside Jewish patients in Israeli hospitals, receiving identical medical treatment.”13
Similarly, Israel’s governance of those parts of the territories under its control and jurisdiction pursuant to the Oslo Accords and pending the outcome of negotiations on their permanent status cannot be labeled as oppression and domination, nor as apartheid.
Amnesty’s claim that such governance is apartheid is spurious, to say the least, mainly because the central elements of the crime of apartheid of institutionalization and permanence, as set out in Article 7 of the Rome Statute of the International Criminal Court, “intent to maintain an institutionalized regime of systematic oppression and domination by one racial group,” simply do not exist.
Israel and the Palestinians are committed, pursuant to the 1991-3 Oslo Accords, to negotiate a permanent-status agreement to replace the interim regime established by the Accords.
When it comes to Israel, the report’s authors appear to be unaware of or ignore accepted rules of armed conflict and international humanitarian law regarding the administration of territory following armed conflict and pending resolution of a territorial dispute.
Instruments of international humanitarian law, including the 1907 Hague Regulations14 and the 1949 Fourth Geneva Convention,15 set out detailed provisions for occupying and administering authorities in their governance of territory and administration of the local population through a legal regime that is by definition separate from that regime applicable within a country’s sovereign territory.
Such international instruments enable the institution of a legal regime vis-à-vis the local population of such territory, including those necessary “limitations on movement” and “restrictions on political participation” condemned in the Amnesty report, in order to ensure safety and good governance of the area pending political resolution of the conflict.
Despite Amnesty’s claims, there is no requirement in international law and practice obliging an administering power to apply in administered territory its own sovereign legal system.
“Palestinians in annexed East Jerusalem … are granted permanent residence rather than citizenship”
The authors imply that Israel maintains a forced differentiation regime with regard to citizenship and residence status in Jerusalem and claim that this stems from deliberate fragmentation and oppression by Israel against the Palestinian population of eastern Jerusalem.
On the contrary, while Israel enables any resident of eastern Jerusalem who so wishes to take up Israeli citizenship, the majority of the Palestinian residents of the city choose to refrain from seeking citizenship as a result of threats and pressures from the Palestinian leadership. They prefer to maintain permanent-residency status, with the concomitant social benefits that accompany such status pursuant to Israeli law.
“Negating the rights of refugees residing outside Israel and the OPT to return to their homes”
The authors of the report attempt to falsely claim the existence of a “right of return for Palestinian refugees” when no such right exists, nor has ever been established.
There exists no “right of return” for refugees in international law or practice, and no international treaty or binding resolution by any international body imposes any such obligation on Israel.
Similarly, none of the agreements and documents agreed upon between Israel and its neighbors in the context of the Middle East peace negotiation process grants a “right of return” to Palestinian refugees.
The only specific, non-binding reference to the “return” of Palestinian refugees appears in article 11 of UN General Assembly Resolution 194(III) of Dec. 11, 1948, where the UN recommended that refugees “wishing to return to their homes and to live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return.”16
This resolution, which was rejected by the Arab states, established no right and no obligation.
Similarly, no “right of return” emanates from any resolutions of the UN Security Council, from the International Covenant on Civil and Political Rights (ICCPR), or the Israeli-Palestinian Peace Process documentation.17
Both Israel and the PLO agreed in the Oslo accords that the issue of refugees would be discussed in the negotiations on the permanent status of the territories. The attempt by Amnesty to prejudge and dictate the outcome of such negotiations is regrettable and should be condemned.
“Occupied Palestinian territory (OPT)”
The phrase “occupied Palestinian territory (OPT)” figures on virtually all of the 211 pages of the Amnesty International report and is used by the authors as a given and accepted lingua franca copied from political resolutions of the UN, assuming that it goes without saying that the territories belong to the Palestinians.
In subscribing to this political fiction, Amnesty International is implying that the territory in its entirety was taken by Israel from the Palestinian people through oppression, domination and fragmentation. By Amnesty’s flawed logic, there neither exists, nor is there any justification for, the historical and legal claim by Israel and the Jewish people to the territory. On the contrary, Amnesty, in its report, rejects any such claim, preferring to deny Israel’s right to exist as a state of the Jewish people.
However, this belies international law and practice. Moreover, it undermines the basic premise of Middle East peace process documentation and relevant UN Security Council resolutions and agreements between the involved parties, all of which have been accepted and endorsed by the international community.
The “West Bank” territory of Judea and Samaria and the Gaza Strip have never been determined by any authoritative and binding legal document, treaty, resolution or declaration to be “Palestinian.” On the contrary, the territory is subject to a dispute, the settlement of which is to be negotiated between the parties.
By subscribing to and constantly repeating the buzzword phrase “occupied Palestinian territory,” Amnesty International is undermining and prejudging the outcome of the 1993-5 Oslo Accords, in which the PLO and Israel divided between them the governance of the territory and agreed that the permanent status of the territory would be negotiated between them.
Since the regime agreed upon by the Palestinians and Israel in the Oslo Accords replaced any previous legal regime, including that based on the 1949 Fourth Geneva Convention, both the denomination of the territory as “Palestinian” and the denomination of the territory as “occupied” are misplaced.
The question as to the outcome of the permanent status negotiations, including whether there will be one, two or three states, or a federation or confederation, will be ultimately determined through negotiation between Israel and the Palestinians, and not through partisan, unilateral, political determinations by Amnesty International.
Since the Palestinian leadership is committed to negotiating this issue, any unilateral determination regarding the status of the Palestinian territory is premature and ill-advised.
Conclusion
The above examples and the general content and tenor of the report indicate a clear political position of open hostility by Amnesty International vis-à-vis Israel.
They also indicate the authors’ highly questionable ethics and methodology in publishing such a blatantly one-sided, partisan and politicized report.
Such underhanded and deceitful methodology and tactics are unbefitting of an international organization that claims to be apolitical, fair and objective.
Notes
1 https://www.amnesty.org/en/documents/mde15/5141/2022/en/
2 https://www.amnesty.org/en/who-we-are/
3 https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf
4 https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
5 Related by a participant in the meeting, L. Ben-David.
6 Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf
7 https://aijac.org.au/fresh-air/there-is-ample-evidence-banned-palestinian-ngos-are-pflp-affiliated/
8 https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf
9 https://undocs.org/S/RES/2462(2019)
10 https://treaties.un.org/doc/db/terrorism/english-18-11.pdf
For a detailed analysis of Israel’s outlawing of the six organizations see Alan Baker and Lea Bilke “Israel’s Designation of Six Terrorism-Linked NGOs Was in Full Accordance With International Law” https://jcpa.org/israels-designation-of-six-terrorism-linked-ngos-was-in-full-accordance-with-international-law/
11 See Alan Baker “Israel’s ‘Citizenship and Entry into Israel’ Law” https://jcpa.org/article/israels-citizenship-and-entry-into-israel-law/
12 https://m.knesset.gov.il/en/about/pages/declaration.aspx
13 https://nytimes.com/2011/11/01/opinion/israel-and-the-apartheid-slander.html
14 https://theblueshield.org/resources/laws/1954-hague-convention-treaty-law/1329-2/
15 https://ihl-databases.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5
16 http://mfa.gov.il/MFA/InternatlOrgs/MFADocuments/Pages/United%20Nations%20General%20Assembly%20Resolution%20194%20-II.aspx
17 For a detailed analysis of the Palestinian claim to a right of return see Alan Baker “Does a Palestinian ‘Right of Return’ Exist in International Law?” https://jcpa.org/article/does-a-palestinian-right-of-return-exist-in-international-law/
Ambassador Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.
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