Written by David Cohen
Une version française sera publiée prochainement sur le blog
Agnes Callamard, the Secretary General of Amnesty International (left) holds a press conference together with activist Orly Noy in Jerusalem, on February 1, 2022. Amnesty International labelled Israel an "apartheid" state that treats Palestinians as "an inferior racial group." (RONALDO SCHEMIDT / AFP)
According to Amnesty International (AI), Israel has established since its creation a system of apartheid both in Israel and in the occupied Palestinian territories (OPT). Under international law, apartheid is a crime against humanity, defined as “inhumane acts committed under a regime of systematic oppression and domination by one racial group over any other racial group or groups with the intention of maintaining this regime. »
The report recommends that the International Criminal Court investigate the crime of apartheid and that the United Nations Security Council impose an arms embargo on Israel.
The conclusions on apartheid in the OPT seem to me defensible when applied to the West Bank but not fully because there is no official Israeli policy to make the occupation of the West Bank permanent as required by the definition of apartheid. Even if the prospects for peace are weak in the medium term, there is no evidence that a future government could not reach a peace agreement with the Palestinians and end the occupation. The fact that Palestinians said No to Israeli offers three times in 2000 and 2008 and Americans in 2014 prove that Israel wanted a two-state solution, the opposite of the permanent maintenance of the occupation.
The conclusions are not warranted when apartheid is applied to Israeli Arabs. Other human rights NGOs are divided on the subject. Thus the Israeli NGO B'Ttselem is of the same opinion as AI. This is not the case with Human Rights Watch, which applies it to the OPT only, and the Israeli NGO Yesh Din, which only applies it to the West Bank.
The report is biased because it often glosses over facts in Israel that do not fit the apartheid theory. It artificially conflates the problems of Palestinians living in the OPT with those of Israeli Arabs as if they had the same civic status and Israeli laws applied the same way. Often, the report does not distinguish Palestinians from the OPT and Israel.
Remember that in 2020, there was a consensus among research organizations on democracy that Israel was a liberal democracy, a free country or an imperfect democracy the opposite of an apartheid state. It is as if thousands of researchers were completely wrong in their assessment.
The lack of nuance in AI's argument in the case of apartheid for the Palestinians
In the case of the Palestinian population, it is true that there is a desire by Israeli right-wing governments to control and dominate it under the pretext of ensuring its own security in the face of constant terrorist threats. For this, the military power responsible for the occupation uses numerous coercive measures to dispossess Palestinians in favor of Jewish settlers and the state apparatus and to deprive Palestinians of fundamental rights and freedoms.
AI cites a series of deprivations but without providing nuances, for example:
- Restriction of the right to political participation. Indeed Palestinians do not have the right to be represented at the Knesset which passes laws that indirectly apply to the OPT via the military administration. It should be noted that the Palestinian Authority (PA) is partially autonomous in the civil administration and security in 40% of the territory of the West Bank comprising almost all of its population. Inside Gaza, Hamas, a terrorist organization at war with Israel, is almost autonomous from an administrative and security point of view, although its population is experiencing a humanitarian crisis following the blockade by Israel and Egypt. This population has been unable to vote for members of the Palestinian Legislative Assembly for nearly 15 years due to the opposition between the PA and Hamas.
- The dispossession of land and real estate in favor of the settlers. AI was silent on the difference between public land and private land, while on the latter, the Israeli Supreme Court ruled that forced evictions were illegal. Moreover, AI claims that Israel’s Supreme Court has decided that the legality of the settlements does not fall within its jurisdiction, which is false. Many settlements and evictions have been declared illegal by the Supreme Court and have resulted in the state dismantling of several settlements. The fact remains that settlements that are legal according to the government, but deemed illegal under international law, make up the vast majority of settlements.
- The imposition of a differentiated legal status clearly favorable to Israeli settlers. AI rightly points out that this right can be differentiated if the occupation is temporary, but it considers this occupation permanent. In my opinion, the proof is not obvious. Although the current government refuses to recognize a Palestinian state, the continuation of settlements still leaves the door open as much to annexation and therefore to permanent occupation as to a peace agreement.
- Administrative detention without charge, torture and other ill-treatment, which leads Palestinians to live in a constant state of fear and insecurity. AI fails to indicate that torture practices are managed in favor of detainees by the criteria imposed by the Supreme Court.
- Deprivation of Palestinian or Israeli nationality. Assuming that the OPT is under temporary occupation, with the exception of annexed East Jerusalem, Israel has no obligation under international law to allow or grant Palestinian or Israeli citizenship. Even though Palestine is not a sovereign state, AI fails to say that i) the PA issues passports to Palestinian residents, ii) it is recognized by the UN as a non-observer state member and by 138 states and iii) that it is a signatory to several important multilateral treaties including UNESCO and the International Criminal Court. As for the deprivation of Israeli citizenship, this is not the case for Palestinian residents of East Jerusalem who receive Israeli citizenship if they apply for it, as 15% of them obtained it. Other citizens of East Jerusalem, as residents, enjoy by law the same rights as other Israeli citizens except for the right to vote nationally. However, those Palestinian residents risk losing their residency as many did because of strict Israeli regulations.
- Lack of essential services and infrastructure targeting Palestinians. Israel is in total control of 60% of the West Bank where about 300,000 Palestinians live and receive very few public services. Contrary to AI, Israel is not bound by the Oslo Accords to provide public services to Palestinians under PA control.
The Weaknesses of AI's Apartheid Case for Israeli Arabs
For the Arabs of Israel, it is true that some Israeli laws, policies and programs result in the institutional discrimination against Arab Israelis even if this is not explicit in those laws such as in employment, municipal services, health and education, land and housing, and arbitrary arrests.
Israel's refusal to recognize the national rights of Israeli Arabs is considered by AI to be apartheid, as many Arab Israelis contest the country as a Jewish state and wish to transform it into a binational Jewish and Arab state.
AI takes for granted that Israeli Arabs should enjoy the same national rights as Jews within a binational state. But Israel defines itself, as international law permits, as a Zionist state, that is the nation state of the Jewish people. Israel grants, according to its fundamental laws, individual rights equally to Arabs and Jews and national rights to Jews only such as the name of the state, the flag, the national anthem, the official emblem, preference for Jewish immigration, etc. However, the State respects the cultural, educational, religious and linguistic reality – Arabic having a special status - of the various Arab communities while being reluctant to grant these communities effective autonomy of decision-making and management. International law favors this type of autonomy but it is not an obligation for the State.
AI takes for granted the right of Palestinian refugees to return to Israel whereas according to the Security Council, therefore international law, this right is not automatic since that return must be negotiated with Israel for a just solution within the framework of peace negotiations.
AI claims that Israeli laws are racist because they do not uphold equal rights between Jews and Arabs. On the contrary, the fundamental laws, which have a quasi-constitutional scope, promote, according to the justices of the Supreme Court, the equal rights of all citizens of Israel regardless of race or religion. AI invokes Israel's recent fundamental law on the Nation State of the Jewish People, which holds that only Jews have the right to self-determination in Israel. This law is perceived by the Arab population and the Israeli left as racist and anti-democratic. However, Israel’s Supreme Court ruled last year that this law was democratic, non-racist and non-discriminatory towards the Arabs of Israel because the right to equality of individuals is already established in the other fundamental laws. To date, the nation state law has never been used to infringe on the right to equality of Arab Israelis.
If Israel was an apartheid state, how is it that there are four Arab parties represented in the Knesset, one of which is a member of the coalition government, that an Arab member of parliament from a Zionist party is a minister in the coalition, that a judge of the supreme court is Arab, that the top official of the military administration of the OPT is Arab, that Israeli Arabs are diplomats with the rank of ambassador or consul, that they are accepted as professors in the universities or physicians in hospitals across the country serving both populations.
Yes, there are still strong disparities and institutional discrimination between Arab and Jewish communities and it is one of the reasons why the State intends to increase, through a policy of positive discrimination, the Arab presence in the state apparatus: Thus, 30% of new jobs in the civil service are reserved for Arabs and 20% of places in most universities. In addition, two major Arab community development plans totaling nearly US$14 billion were launched in 2015 (4.7 billion over 5 years) and 2021 (9.4 billion over 5 years).
The report reflects a growing move away from defining the Israeli-Palestinian conflict as a clash between two nationalisms for a common land in favor of a civil rights-based struggle for equality within the same territory, a theme dear to the especially American left and to the partisans of a single democratic state in Palestine, an option contrary to the two-state vision supported by the international consensus and most North American Jewish communities, traditional and progressive.
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