Amnesty’s one-sided analysis ignores reality and misuses international law

By Andrew Tucker, Program Director, thinc.

Amnesty International’s Report “Israel’s Apartheid Against Palestinians” is the latest in a series of reports by human rights non-government organisations. It re-hashes a one-sided narrative, accusing Israel of apartheid and labeling the Jewish State as perpetrator of crimes against humanity.

To be sure, Israel is not perfect, and there may be issues of discrimination. But all of these reports ignore the fact that Israel has become the only true democracy in the Middle East. They ignore the complex history and current realities of Israeli-Palestinian relations. In fact, they deny the right of the Jewish people to existence as a sovereign nation.

This undermines everything the UN stands for. The flagrantly irresponsible use of the term “apartheid” to those aspects of the Jewish State that seek to identify it as a “Jewish” state stigmatizes the Jewish people as an inherently illegal nation. It is incendiary language that singles out Israel as the sole cause of Palestinian “suffering”. Rather than promote positive Jewish-Arab relations, it rewards Palestinian rejectionism and hatred, and risks igniting the flames of antisemitism globally.

All of this undermines the credibility of international law, and the integrity of the international legal system.

It is remarkable that Amnesty devotes enormous resources to investigating Israel for war crimes on its own territory – and not make the same investigation in countries like China or Syria. In a revealing interview with Times of Israel, Amnesty’s leaders were  unable to explain this choice, except to say that they are responding to a “growing debate by Israeli and Palestinian organizations that have a history of doing work on human rights for decades.” The very existence of this debate in Israel is evidence that Israel is NOT an apartheid State but this fact seems to be lost on Amnesty.

It is hard to avoid the conclusion that the timing of all of these reports over the past year is intended to feed into the Commission of Inquiry that the UN Human Rights Council established in 2021 to investigate human rights violations and all allegations of international crimes within Israel. No other UN country – not even Myanmar, China, Syria, North Korea or Saudi Arabia – is subjected to such a flagrant assault within the UN institutions.

“Apartheid”

In its 280-page report published on 1 February 2022, Amnesty alleges that the Jewish State of Israel is built upon, and continues to be based on, systematic and brutal oppression of non-Jews. Israel deliberately implements “an overall system of oppression and domination” that “fragments” and “segregates” Palestinians (i.e. non-Jews) – both within Israel and within the “Occupied Palestinian Territories”. 

“Since its establishment in 1948, Israel has pursued a policy of establishing and maintaining a Jewish demographic hegemony and maximizing its control over land to benefit Jewish Israelis while restricting the rights of Palestinians and preventing Palestinian refugees from returning to their homes. In 1967, Israel extended this policy to the West Bank and Gaza Strip, which it has occupied ever since.”

Interestingly, an original version of the report contained the words “The system of apartheid originated with the creation of Israel in 1948”. These were apparently amended prior to publication, perhaps to avoid the charge that Amnesty is condemning the existence of the Jewish State?

Reactions

Many Jewish organisations have reacted strongly. Some accuse Amnesty of denying the right of the Jewish people to self-determination. According to NGO Monitor, the purpose of the report is “to characterize the right of Jews to sovereign equality in their historic homeland as a violation of the [international] legal order.” In response, Amnesty lamely denies that it is attacking the existence of the Jewish State; rather, it says it is only condemning the “system of apartheid” that Israel has maintained ever since the State was established.  

It is impossible to avoid the conclusion that if Israel were to implement Amnesty’s recommendations, it would effectively be committing suicide. Amnesty recommends that countries boycott products from “settlements”, cease supply of arms to Israel, prosecute Israeli leaders and publicly shame Israel. Israel, for its part, must:

• remove all settlements and “relocate Israelis outside the OPT”
• remove the blockade of Gaza
• dismantle the security barrier
• recognize the right of Palestinian refugees and their descendants to return to homes where they or their families once lived in Israel or the OPT, and to receive restitution and compensation and other effective remedies for the loss of their land and property.

The fact that Amnesty does not realize how existentially dangerous these recommendations are casts doubt on the sincerity – and credibility – of the authors.

Tellingly, many Arabs have rejected the findings of this report. Mohammad Kabiya tweeted:

“Racist @amnesty in their fake report are calling me, a proud Israeli-Arab and Israeli-Muslim, a ‘Palestinian living in Israel.’ How dare you define my identity for me.”

Hussain Abdul Hussain referred to the report as a “hit job”.

“Palestinians”

Indeed one of the remarkable aspects of the report is the way it clusters all non-Jews within the term “Palestinians” – even Israeli Bedouins, Druze, and Aramean Christians who are proud Israelis and do not consider themselves to be Palestinians.

The report ignores contrary evidence, such as a 2016 poll carried out by the Palestinian Centre for Policy and Survey Research showing that “68% of the Palestinians (73% in the West Bank and 59% in the Gaza Strip) describe Israeli democracy as good or very good.”

In 2020, a collective of Arab Christians submitted the following evidence to the International Criminal Court:

“There are currently over 12,000 Christian Arabs living in Jerusalem. They enjoy full religious freedom to worship and practise their faith, guaranteed under Israeli law. Israeli sovereignty in Jerusalem extends over several important Christian holy sites, such as the Church of the Holy Sepulchre, the Via Dolorosa and the Church of All Nations. These sites are protected by the State of Israel according to the Protection of Holy Places Law. By contrast, the situation of Christians in areas ruled by Palestinians is far more precarious. The Christian communities there have shrunk significantly in recent years. The Palestinian Christian population stood at an estimated 15%, fifty years ago, but today it has dropped to 1.5%. Bethlehem was once a majority Christian city, although today it is barely a fifth Christian. In Gaza, the tiny Christian community, numbering only 3,000 people, has faced murder, violence and intimidation. Christians in the West Bank and Gaza Strip face harassment, discrimination and abuse, as described in a recent report.

Opinion polls demonstrate that large percentages of Arab residents of Jerusalem, Christian and Muslim alike, would prefer to remain under Israeli control, as opposed to being transferred to PA jurisdiction. Subjecting them to PA jurisdiction would not be likely to respect their right to self-determination. Jerusalem’s Arab residents would face severe human rights violations under PA jurisdiction. For example, Palestinian law forbids the sale of land to Jews, and those convicted of this crime risk severe punishment and even death. This in itself could justify a claim that the Palestinians functionaries are committing the crime of apartheid.

Under Israeli law, residents and citizens are free from racist laws barring property sales. The legal system guarantees due process, a fair trial and forbids the use of torture. If the Court asserts jurisdiction over East Jerusalem, it will be deciding unilaterally that Israeli Arab residents of Jerusalem, Christian and Muslim, who currently enjoy rights and protection in a democratic country, should be placed – or worse, are currently placed – under the jurisdiction of the corrupt and discriminatory PA.”

Factual inaccuracies

As the detailed analysis by Alex Safian at CAMERA UK demonstrates, the Amnesty report is replete with falsehoods and distortions of the truth. For example:

• misrepresentations about the so-called “forced evictions” of Palestinians from “their homes” in Sheikh Jarrah (“there is no question whatsoever that the properties at issue were Jewish-owned in 1948, that they were taken over by the Jordanian Custodian of Enemy Property, that there was then an agreement reached between the Kingdom of Jordan and the United Nations (UNRWA) to use the Jewish-owned (the documents say this explicitly) properties to resettle Palestinian refugees. Ownership of the properties stayed with the Jordanian Custodian (in trust for the absent Jewish owners) which leased it to the Jordanian government, and the tenants were required to pay rent.”)

• falsified claims of discrimination against Arab property owners in East Jerusalem (“Jewish property in Jerusalem taken by and held by the Jordanian Custodian after 1948 can be returned to the original Jewish owners, and property owned by Arab residents of Jerusalem and held by the Israeli Custodian can be returned to the original Arab owners. If the land was transferred by the Custodian to new owners, the value of the land is held by the Custodian in trust for the original owners, and the original Palestinian owners can file to receive that compensation.”)

• false claims about Israel’s refusal to allow Palestinians to exercise their “right of return” (refugees do not have a right of return under international law: “Amnesty’s claim is arrant nonsense. The main source it cites is UN General Assembly Resolution 194, which says nothing of the sort, and in any event as a General Assembly Resolution is nonbinding.”)

Fabricated legal definition of “apartheid”

NGO Monitor and others have demonstrated that Amnesty plays loose and fast with legal terminology, basing its analysis on an invented definition of “apartheid” – cobbled together from various treaties, none of which apply to Israel – to argue existence of an imaginary customary law prohibition of apartheid.

“Amnesty, repeating HRW’s false definition, equates the concept of domination with that of “control.”  And as opposed to being based on legal analysis, Amnesty’s definition is taken from the Oxford English Dictionary.  As a legal matter, this definition is ridiculous as it would mean that any place there is a power differential between countries and/or the existence of minority groups would constitute a situation of apartheid.

Moreover, Amnesty defines the element of domination as “control”, apparently in an effort to mirror the accepted definition of belligerent occupation, and decontextualizing the interpretation of the term as it is understood under the Apartheid Convention (1973) and Rome Statute (2002). As a result, Amnesty’s definition of domination as control means that any situation of belligerent occupation (the legal paradigm Amnesty applies to the West Bank, Gaza, and East Jerusalem) would be the equivalent of apartheid.”

Furthermore, the concept “apartheid” should be interpreted in the light of the ideology and practice in southern Africa in the past (see Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid), which was based on the idea of racial superiority of the whites. It cannot be held that a similar ideology is the background of the Israeli policies concerned.

False legal assumptions

Most significantly, Amnesty (like most other organisations) assumes that the so-called “Occupied Palestinian Territories” (OPT) do not belong to Israel. It also assumes that Israeli by definition have no rights to live outside the Green Line. But both propositions are far from self-evident, and have never been determined. As many international lawyers noted, and recently confirmed by Judge Kovács, the status of these territories is disputed, and the subject of negotiations under the Oslo Accords, into which the PLO entered willingly, and are still binding.  Even the International Court of Justice (ICJ) in its 2004 “Wall” Advisory Opinion deliberately left open the question of the sovereign status of these territories (see para 101).

Not only is the status of the territories unresolved, the Mandate for Palestine explicitly recognised the right of Jews to “settle” in all of Palestine. Those rights are protected by Article 80 of the UN Charter.

To demand, therefore, that Israel “remove” Israelis who live in East Jerusalem or other parts of Judea or Samaria is itself contrary to international law.

One-sided and ahistorical narrative

Amnesty gives a long list of “wrongs”, but provides absolutely no context or background to the measures it describes. Amnesty fails to even hint at the long history of complex and intensive Jewish/Palestinian/Israeli/Arab negotiations and even cooperation over more than a century – both prior to the creation of the State of Israel and since.

Amnesty’s one-sided report gives no insight into the dilemmas faced by the Jewish State in creating a democratic society in a region that is intrinsically hostile to liberal democratic values and human rights.

Perhaps most problematic is that it ignores the long history of violent hatred of Jews within Palestinian and Arab society. And it ignores the fact that Palestinians themselves are largely responsible for their own destiny. For 100 years, the Palestinian leadership has played a decisive role, shaping and determining their people’s future by consistently rejecting the existence of the Jewish nation in Palestine – as inter alia demonstrated by their categorical rejection of every peace proposal with Israel – and instigating violence against Jews.

For example, Amnesty does not mention that:

• As Steven Zipperstein has shown, “on multiple occasions, Palestinian leaders rejected both the one-state and two-state solutions. Under international law, those rejections amounted to renunciations and waivers of sovereignty over the West Bank and Gaza. The Palestinians expressly reaffirmed those renunciations and waivers in Article 24 of the original May 1964 PLO Charter.” The sole reason for their refusal to cooperate was that they were unwilling to accept the existence of a Jewish nation;  
• Palestinian leaders joined the Arab world in rejecting the UN Partition Plan in 1947 – on the basis of which they would have had an Arab state even larger than that envisaged within the “1967 lines”;
• The Palestinian “refugee” problem was caused by the Palestinians’ own rejection of the right of the Jews to nationhood in November 1947. Had they accepted the Partition Plan, there would be no Palestinian refugees.
• The result was war instigated by the Palestinian leadership under Great Mufti of Jerusalem Husseini (who was an ally of Hitler, and determined to eliminate the Jews). The Jewish State was established in 1948 in the midst of this conflict.
• Palestinian leaders supported Jordan’s illegal attack on Israel in 1948, resulting in its occupation of East Jerusalem and the West Bank;
• The Palestine Liberation Organization – which remains the sole representative of the Palestinian people, and Israel’s negotiating partner – was established in 1964 to destroy the State of Israel. The Palestine National Charter (as amended in 1968) still denies the legitimacy of the Jewish State. Prof. Eyal Benvenisti has recently shown that the PLO and other Palestinian organizations still refuse to amend the Charter to remove these clauses – as had been promised by Yasser Arafat in 1993.
• Palestinian leaders again cooperated with Jordan’s illegal attack on Israel in 1967;
• Since then the Palestinian leadership has cultivated a culture of hatred and terror – for example, paying Palestinians to murder Jews;
• The predicament of the Arab Palestinians in East Jerusalem results from Jordan’s illegal annexation and expropriation of Jewish properties from 1948 to 1967. The Jerusalem Municipality however is investing in Jewish/Palestinian cooperation.
• Palestinian leaders rejected realistic statehood offers in 2000 (Arafat) and 2008 (Abbas).
• Under the Oslo Accords, the Palestinians have full control of Area A, and joint control of Area B;
• HAMAS exercises a regime of oppression over the Palestinian population in Gaza and violence against Israel.

Of course, none of these facts would justify an arbitrary system of oppression. But they explain why Israel’s situation is so precarious, and why some degree of separation between Israelis and non-Israelis is necessary.

Amnesty’s deliberate omission of context and background results in a report that over-simplifies a deeply complex situation caused – at least in part – by the Palestinians who are here portrayed as innocent and helpless victims.

Star Chamber

Amnesty, Human Rights Watch (HRW) and other organizations operate as a kind of collective Star Chamber, which has been defined as “a legal or administrative body with strict, arbitrary rulings, no due process rights to those accused, and secretive proceedings”.

As Alex Ryvchin has explained, “it is the incestuous relationships and conflicts of interests running through Amnesty’s work that constitutes its greatest failing. The researchers Amnesty hires to write its reports rotate through anti-Western media outlets and activist groups before winding up at Amnesty writing reports against the people they protested against.”

In the name of human rights, each NGO repeats evidence of their fellow NGOs, quotes allegations of wrong-doing made by undisclosed (and thus unverifiable) sources, and then appropriate to themselves the right to condemn states for breaches of international law, as if they were a court of law. Note the language:

“Amnesty International has analysed Israel’s intent to create and maintain a system of oppression and domination over Palestinians and examined its key components: territorial fragmentation; segregation and control; dispossession of land and property; and denial of economic and social rights. It has concluded that this system amounts to apartheid. It has also documented unlawful acts committed by Israel against Palestinians with the intent to maintain this system, including forcible transfers, administrative detention and torture, unlawful killings, denial of basic rights and freedoms and persecution. It has concluded that such acts form part of a systematic as well as widespread attack directed against the Palestinian population and amount to the crime against humanity of apartheid.

Israel must dismantle this cruel system and the international community must pressure it to do so. All those with jurisdiction over the crimes committed to maintain the system should investigate them.”

While it cannot be excluded that these reports contain findings of unlawful discrimination, many of the “findings” are based on contentious interpretations of the law, and on second-hand, and largely uncorroborated and unverifiable evidence. It is simply impossible to verify if the allegations are correct.

None of these NGOs is accountable to anyone. They pepper their documents with “findings” and “conclusions” that are subsequently picked up by the naïve mainstream media and repeated as if they are the truth.

This practice of using international law to reach a legal “verdict” in the media, and “shame” a sovereign state, erodes and undermines the international legal system, which (for all its faults) contains many existing mechanisms for addressing human rights breaches and other violations of international law.

The UN Charter requires nations to promote friendly relations amongst nations, based on mutual respect and cooperation.

Israel is not perfect, but this report will do nothing to amend those imperfections. Amnesty International’s inflammatory and imbalanced report will only serve to foster hatred, mistrust and enmity.