(Sh)Amnesty International’s Report on Israel: A Critique
Ilan Hulkower
On the 1st of February, Amnesty International, a human rights organization, released its report on Israel, which accuses Israel of practicing apartheid. Apartheid, which is a crime against humanity, can be defined as a “system of legalized racial segregation in which one racial group is deprived of political and civil rights.” The practice of apartheid is typically associated with South African policies of legal segregation toward its own non-whites inhabitants from 1948 to the early 1990s. The report, however, is filled with problems that lead toward a distorted factual and legal analysis. This article principally does four things: (1) it argues that Israel cannot be an apartheid state by the definition provided above, (2) it provides a non-exhaustive disputation of certain claims made in the report, (3) it displays the consequences of Amnesty’s standard of practicing apartheid if applied to other countries, and (4) it questions the inhumane remedies that Amnesty recommends the international community support and Israel adopt.
Israel is demonstrably not an apartheid state. Within Israel itself, Arabs are citizens of the state with the same individual rights as Jews. They have the opportunity to be represented in every aspect of Israeli society from the judiciary, politics (where one can even run in and vote for an anti-Zionist party), to the military. Israel also has an education system that allows for Arabs to transmit their cultural and historical heritage to their own community.When Ehud Olmert, a former Israeli prime minister, was on trial for corruption, there was an Arab Supreme Court judge who oversaw his trial. At this moment in Israel, there is an independent Arab party that is part of the government. The head of this Arab party has rejected Amnesty’s labeling of Israel as an apartheid state. During the apartheid era in South Africa such things as a black becoming a member of the highest court and sitting in judgment over a trial of a white politician would be unthinkable. Such things as having blacks being able to join the government and participate in politics under the color of their own parties would also be unimaginable. Blacks in South Africa only got the vote in 1994 while Israeli Arabs could vote for whoever they wanted since Israel’s first election in 1949.
Even Amnesty itself in the very report that it labels Israel an apartheid state admits that Israel has constitutional laws that provides protections to the minority and upholds the principle of equality (see page 64 in the English version). One can point to the Israeli Supreme Court expressly forbidding the allocation of state land on the basis of Jewish versus non-Jewish identity as seen for instance in the 2000 Katzir/Ka'adan ruling (which incidentally rejected the notion of basing a legal system on the principle of separate but equal) as an important example of Israel's protection of the rights of its Arab citizens. This refutes a central tenet of apartheid, which is enforced segregation, because Israeli Arabs are free to live wherever they want. While this ruling is briefly mentioned in the report (see pages 130-131), it is among the things that Amnesty distorts and unduly dismisses. In Israel today there exists some form of affirmative action programs for employment in the civil service which Arabs are qualified to receive. There was even such a case that was ruled favorably on by the Israeli Supreme Court in 2001 on this issue. All of the abovementioned Israeli laws and benefits for its Arab citizens are contrary to the workings of an actual apartheid regime such as South Africa. To that end, Amnesty readily admits in its report that Israeli apartheid is not the same or analogous to South African apartheid (see pages 13-14). What Amnesty seeks to argue in the case of Israeli Arab citizens is that their national rights have inferior status compared to Israeli Jews. This is a topic that I will return to later.
The condition of Arabs who live in the West Bank and Gaza since the 1990s Oslo Accords is that the vast majority (90 percent according to Amnesty) of Palestinians live under varying degrees of autonomous rule. These Arabs are citizens of another political entity- that of the Palestinian Authority (or Hamas) which is in a violent dispute with Israel. This autonomous entity has been offered full independence a number of times by Israel and it has rejected all these offers. It therefore makes little sense to describe Israel's regulation of its borders and its decision whether or not to allow non-Israelis (that in the case of Palestinians, may also be hostile) into Israel, as apartheid. By Amnesty’s logic, any border policy that any country has would be a policy of apartheid. Such an understanding of apartheid would conflict with long-standing international law which gives states a clear mandate to safeguard their territorial integrity.
Amnesty’s report is full of problems with its analysis. Here I will deal with two claims it makes in its opening pages. The very first thing that the report opens with is a narrative about a dispute over various properties in Sheikh Jarrah, the demonstrations by Arabs over this dispute, and the response by the Israeli police. Amnesty claims that Israel wanted to illegally transfer Jewish settlers to these properties by evicting its Arab inhabitants and that Israel responded to peaceful protests through using excessive force (see pages 11, 133-134). The reality Property Dispute")is that the properties in question belonged to Jews since the 19th century and that when the properties fell under Jordanian occupation they did not transfer these properties to another private party as they did with other Jewish property that came under their control from 1949 to 1967. The private legal dispute Property Dispute") is between Jewish landlords, their Arab tenants whose leases have expired, and some Arab squatters.
As for Amnesty’s depiction that Israel used excessive force on peaceful protestors, the Palestinians did more than just launch a social media campaign for international attention and gather peaceably. They rioted repeatedly including on the Temple Mount (the Al-Aqsa Mosque compound) itself and there were incidents where Israeli civilians were attacked. The mob chanted violent slogans in addition to throwing stones, bottles, and fireworks at the police. Such rioting wounded 17 officers in one night! In the face of rioting, the police are lawfully permitted to use crowd-dispersing methods and arrest rioters. In terms of the riot on the Temple Mount, there is video evidence of a rather coordinated attack on the Israeli police as various incendiary objects are hurled in their direction with protesters appearing to shine lights from green lasers to disorient the police. Such objects en masse being the possession of persons would even suggest that this riot was pre-planned rather than a spontaneous occurrence. Somehow this information concerning the Temple Mount riot, attacks on police, and Israeli civilians are glossed over in Amnesty’s analysis.
The second claim that Amnesty repeatedly makes is that prior to the creation of Israel, that Jews only owned 6.5 percent of the land while the Palestinian Arabs, who comprised around 70 percent of the population, owned 90 percent of private property in the British Mandate of Palestine and now the situation has been turned on its head (see pages 15, 22, 74, and 113). Why does Amnesty frame things in this manner? One statistic (dealing with the Jews) relates to the total percentage of land in the Mandate itself that was owned by a group while the other statistic deals with the percentage of total private property owned by a group. This is comparing apples to oranges. Assuming that figure of 90 percent that Amnesty gave is true, one should bear in mind that during the British Mandatory period land purchases of Arab land by Jews were restricted by the British. This policy existed despite the charter for the Mandate promising that Britain would encourage Jewish settlement and land purchase. Zooming out to see the general situation of land allotment prior to Israel’s creation and after would give us a fuller picture of who owned what. Prior to the State of Israel, the state controlled between 44.1 percent to over 70 percent of all lands in the Mandate. This variance depends on whether one accounted purely for state owned land or state owned but leased land.
A breakdown of ownership of the land can be seen as follows: Jews owned 7.4 percent of the total land in Palestine, Palestinian Arabs owned 11.6 percent of the land, and foreign owners controlled about 6.9 percent of the total land. The primary documents which break down figures of land ownership in the Mandate are the 1946 Palestine Survey (see pages 243-245 for Jewish ownership and pages 255-258 for state lands) and the 1947 General Assembly Ad Hoc Committee's Minority Report. As for the situation being turned on its head; using Amnesty's phrasing, Jews today in Israel, who comprise a little over 70 percent (or over 80 percent if you use the 1995 data) of the population, hold about 50 percent of private property (with non-Jews holding the other share of private property). The Israeli state directly owns 80.4 percent of the land which is leased to Jew and Arab alike, the Jewish National Fund owns 13.4 percent of land in Israel, with the remaining 6.5 percent being purely private property. Amnesty itself provides some figures about land allotment in modern Israel which roughly conforms to these numbers (see page 128). What all this means is that the Jews disproportionately own less private property then the Arabs in either era. Yet, according to Amnesty the situation has turned on its head because of an ongoing 70-year Israeli policy of seizing control of resources for Jews.
These two highlights of claims should not be seen as the only problematic issues with the Amnesty report. There are far more errors and distortions in that report. For instance, some of Amnesty’s sources in its own report directly refute what Amnesty is arguing. Amnesty also makes conflicting claims like how Palestinians in East Jerusalem are not able to participate in political life while literally one sentence later noting that they boycott Israeli municipal elections (see page 21). There are also more instances of Amnesty clearly not giving basic context for its claims (because that context would be damning to what their narrative is). None of these types of problems are new with regard to the past quality of Amnesty’s reporting on Israel. The quality of reporting should not be especially surprising given that one of Amnesty’s own researchers on Israel has been caught venerating terrorists.
Amnesty’s standards for what constitutes apartheid would be absurd if adopted internationally. While Amnesty says that it respects the Jewish people’s right of self-determination (see page 38), it seeks to fundamentally argue that in the case of Israel any attempt to establish a state that defines itself as the nation state for the Jewish people is practicing apartheid (see for instance their comments on the Nation State Law on pages 65-67). This begs the question, is Israel unique in its assertion of national rights or in how it goes about asserting these rights? The answer is emphatically no. Israel’s right of citizenship laws, which Amnesty takes umbrage with, is far from unique. Rights of citizenship through descent are commonplace in the world at large, with many democracies having such laws. Many states, democracies included, have constitutions that enshrine their national characteristics. Unlike Israel, many states, democracies included, have a national religion.
By Amnesty’s logic the constitution of Palestine is discriminatory and grounds for apartheid as it proclaims a national religion (Islam), states that the principles of Sharia law (religious law) shall be the basis of legislation, establishes a national/ethnic identity (Arab), a national language (Arabic), and a national flag. Yet somehow Palestine does not merit being called an apartheid state by Amnesty. In Palestine’s case though there are blatantly discriminatory and inhumane laws that in practice prohibit the selling of land to Jews. Nor is Palestine unique as the Hashemite Kingdom of Jordan too has such a law on the books. Amnesty has detailed in their International Report 2020/2021 systematic discrimination against Palestinians in Lebanon that prohibits them from “owning or inheriting property, accessing public education and health services and from working in at least 36 professions” (see page 226 in the English report), yet it does not call Lebanon an apartheid state. Right now, Amnesty only has proclaimed two countries in the world as practicing apartheid - Israel and Myanmar. Yet, when they tweet out slogans like on February 3rd demanding the end of apartheid they only provide a link about “Israeli apartheid” and not about Myanmar as well. An interview with officials from Amnesty International revealed that they chose to focus on Israel due to it being a nebulous “subject of a growing debate” and that they might eventually look at whether other countries fall into their definition of apartheid. In effect, they admitted that this was not an exhaustive survey of states that qualify as apartheid, which might have made their work more objective, but special investigations of certain states.
Given that Amnesty International is known as a human rights organization, one might think that their recommendations about what to do with the Jewish State would be humane. They are not. For while Amnesty has accused Israel of engaging in the illegal practice of ethnic cleansing, what it demands Israel do in part to remedy its supposed apartheid is to ethnically cleanse Judea and Samaria (the West Bank) of Jews. Amnesty International proclaims that this is the proper remedy which international law requires for people who illegally settle land (see page 274 of their report). Amnesty makes no difference on whether the Jews there live on their own private property, or on state land, nor do they consider whether that property belonged to Jews prior to 1948, since in theory it would exempt them from being forced off the land. Like the case regarding the Sheikh Jarrah properties, Amnesty does not seem to recognize any right of Jews to live in these places regardless of the circumstances of Jewish ownership. I do wonder, however, if Amnesty would also advocate that Israeli Arabs also be expelled (or have their property taken away) from these same territories under this decree given that as much as 20 percent of Israeli Arabs have (or lease) property in the West Bank. This stance over Jewish settlements is all the more curious given that in the same report Amnesty demands Israel recognize illegally built Bedouin settlements in the Negev (see page 273).
Amnesty may respond that even if the sentence of expulsion of Jewish settlers is harsh and insensitive, Amnesty is merely following what international law requires in such circumstances of an occupation. But is this indeed what international law prescribes? According to Eugene Kontorovitch, an authority on international law, it is not even if the laws of occupation apply. Kontorovitch conducted a study where he examined how international law (especially the famed Article 49(6) of the 4th Geneva Convention relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949."), which prohibits state deportation or transference of its own population into occupied territories) was applied in similar contexts and scenarios to Israel around the world. What he finds is that in situations of prolonged occupation it is normal to see large scale-settlement of occupied land, there has never been a case where the occupying power has prevented such migration, that, outside the case of Israel, such migration is not seen by the international community as violating Article 49(6), and furthermore, outside the case of Israel, the international community has not claimed that there is an obligation of the occupying power to remove their settlers. A “law” that is applied to Israel but not to other powers engaged in similar activities cannot earnestly be said to be international law at all but just an unfair double standard.
It should now be clear that what Amnesty seeks to do is make, encourage, and implement “international law” that is selective about what it enforces. It has singled out one state, the world’s only Jewish state, to it and is constructing an international regime that systematically segregates and discriminates against this one state on the basis of ethnic/religious/national lines. To use Amnesty’s verbiage, it is demanding apartheid against Israel. In doing so it makes a mockery of what human rights are supposed to be about, which is the achievement of equality before the law, and what apartheid was. As such the language of human rights has been weaponized by Amnesty. To identify and assess discriminatory regimes, you need clear and objective standards to do so and this report by Amnesty does not create a clear or meaningful objective standard. Until Amnesty retracts this sham report and actually starts to earnestly engage with human rights, its biased reporting and recommendations on Israel should be called out and no organization or government should give serious weight to Amnesty's reporting on Israel.