Some countries are more equal than others

For the past two years, I have been living next door to Amnesty International’s headquarters; a gated building located on a small side street in the neighbourhood of Shoreditch in London. Just outside its gates, on the wall of a railway arch bordering the property, is a ceramic tile that someone has put up, which has been glazed with the words “Boycott Israeli Apartheid” in red, green and black letters.

In TOI’s interview with Amnesty officials, published yesterday, Amnesty spoke a lot about being objective. They insisted that the reason Israel was being investigated over other countries was because there is more of an “ongoing debate” about the topic of apartheid in Israel than in other countries, and any suggestion that Israel was being disproportionately targeted by Amnesty or other organisations, perhaps even due to antisemitism, was dismissed. “Everyone thinks they’re special”, was the response.

Of course, Amnesty does think Israel is special. There are no other ceramic tiles outside its headquarters encouraging the boycott of Myanmarese apartheid, or indeed any other crime against humanity allegedly perpetrated by any of the other regimes investigated by Amnesty International. But given its insistence on objectivity, I thought it prudent to analyse the objective application of international law, which Amnesty claimed it was applying when producing the report.

Amnesty alleges that Israel has committed the crime against humanity of apartheid. It is worth noting at the outset that a state cannot commit a crime against humanity – individuals commit crimes. In other words, specific individuals, members of organizations or institutions or representatives of the Israeli government would need to be identified and charged with committing the crime of apartheid. These persons would then need to be prosecuted and found guilty before one could say that a crime against humanity of apartheid has been committed.

Of course, Amnesty has not done any of these things – and nor does it have the power to do so, as it is neither a judicial organ nor a prosecutor of any sort. It is also worth mentioning that the first ever indictment of the crime against humanity of apartheid occurred in November 2021, in a South African criminal case. No person has ever been prosecuted for the crime to this day, anywhere in the world. But simply proclaiming that Israel, the country, has committed the crime against humanity of apartheid certainly sounds final and declaratory, which appears to have been Amnesty’s aim.

One thing I find incredibly confusing about Amnesty’s position is that according to Amnesty’s own 2020/2021 country reports, the State of Palestine is a state governed by “Fatah which runs the authorities in the West Bank, and Hamas which runs the de facto administration in Gaza”.

According to its report on the State of Palestine, “In the West Bank, authorities made widespread use of administrative detention without charge or trial. In Gaza, civilians continued to be tried before military courts. Courts in Gaza handed down death sentences.” The report goes on to detail excessive use of force, violence against women and torture having been committed by the Palestinian authorities against civilians in the State of Palestine.

The Amnesty Apartheid Report claims that Israel is committing the crime against humanity of apartheid within Israel, but also in the West Bank, Gaza and East Jerusalem. It frequently refers to Israel having control over all these areas and refers to them collectively as the Occupied Palestinian Territories or “OPT”. It states that different rules apply in terms of control over these areas, but the regime of apartheid remains the same. It refers to Israel having “effective control” over the entirety of the OPT.

At the same time, Amnesty considers the West Bank and Gaza (and likely East Jerusalem) to constitute the State of Palestine, with Fatah and Hamas being the authorities in charge. It refers to the Palestinian courts handing down sentences. It refers to orders issued by Palestinian authorities. It condemns the failure of Palestinian authorities to prosecute criminals. How can Amnesty reconcile the positions of, on the one hand, Israel having effective control over all of Palestine, and on the other hand, the State of Palestine being under the control of a separate de facto government, which has the capability of issuing orders, handing down court sentences, committing torture and failing to investigate crimes?

Under the International Convention on the Elimination of All Forms of Racial Discrimination, which Amnesty names in its report, States undertake to prevent, prohibit and eradicate all practices of apartheid in territories under their jurisdiction. Amnesty conflates the jurisdictions of the West Bank, Gaza, East Jerusalem and Israel proper to expand the geographical scope of where it claims Israel perpetrates a policy of apartheid. This is interesting, particularly in light of Amnesty’s findings in relation to the State of Palestine, that:

On 17 November, the Palestinian authorities in the West Bank announced that they would resume security and civil co-ordination with Israel, suspended since May, in response to Israel’s plans to annex parts of the West Bank. During the suspension, the Palestinian authorities did not facilitate permits, including for medical patients to transfer from the Occupied Palestinian Territories into Israel, and stopped submitting documents as proof of identity to the Israeli-controlled population registry. The Palestinian authorities also stopped accepting the tax collected by Israel on their behalf – about 80% of their revenue – forcing them to slash the salaries of tens of thousands of public sector employees, including health workers.”

In other words, the Palestinian authorities had suspended cooperation with Israel, during which the Palestinian authorities refused to facilitate medical permits, to submit identity documents to the population registry, and to accept tax accounting for 80% of revenues which caused them to slash the salaries of tens of thousands of workers. And yet, none of this is raised in Amnesty’s report – it refers only to the difficulties faced by Palestinians in the OPT in relation to traveling for medical reasons, receiving their identity documents, and employment – caused by the State of Israel.

There is another aspect I find odd about Amnesty’s report. It claims that one of the main reasons it has been able to establish that Israel has committed the crime of apartheid is thanks to the transparency which has allowed it to enter Israel and speak to Palestinian and Israeli organisations. Clearly, Amnesty has also had a chance to investigate events in Palestine, considering its 2020/2021 report.

It found, for example, that:

Palestinian armed groups in Gaza occasionally fired rockets indiscriminately into Israel, injuring at least 27 Israelis, according to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA). The Hamas authorities failed to investigate or prosecute those responsible and occasionally allowed groups to launch incendiary kites and balloons into Israel. Most of the Palestinians responsible for stabbing, shooting and other attacks on Israelis in the West Bank and Israel, which killed two Israeli civilians during the year, were not members of Palestinian armed groups. However, these groups often praised such attacks.”

Taking Amnesty’s logic, if Israel, the West Bank, Gaza, and East Jerusalem are all one and the same, meaning that Israel can perpetrate the crime of apartheid in all these areas, despite the existence of other de facto governments in the same place, then presumably that would also apply to Palestine. The Hamas Charter frequently refers to the killing of Jews, and the struggle against Jews being very great and very serious, and it is an institutionalised regime, at least in Gaza. One might wonder whether Amnesty intends to publish a report on the crime against humanity of apartheid being committed in the State of Palestine?

Of course, I am being facetious. The threshold of committing a crime against humanity is extremely high and involves several complex elements and steps that need to be satisfied. In the same way that not every murder constitutes the crime against humanity of murder, not every act that appears on the face of it discriminatory constitutes a crime against humanity of apartheid. But from Amnesty’s report, you would think it did.

The Israel-Palestine conflict is one of, if not the, most complex conflict in the world. The crime of apartheid, which arose out of internal discriminatory and segregating policies within South Africa, is very difficult to apply to the context of one state and one de facto state, which were initially meant to be two separate states, with the borders not ever having been defined or finally declared (not even in 1948), and which through wars, acts of terrorism, kidnappings, intifadas, engagements and disengagements, expulsions of Arabs, and indeed the expulsion of approximately 1 million Jews from Arab countries (which Amnesty entirely fails to mention) caused the preliminary borders and their purpose, meaning and relevance to become incomprehensibly convoluted. It is not as easy as sticking a label of apartheid on the whole thing and calling it a day.

Apartheid requires an intention to dominate and suppress, but Amnesty has entirely ignored any mention of legitimate security arguments by Israel in its report. It mentions the control of airspace and border crossings, but fails to mention that explosives, rockets and other highly sophisticated weapons are smuggled on the regular into Gaza for use on Israeli civilians, and without the control of such routes, the demise of Israel would be almost certain. It mentions the blockade that has been in place since 2007, but fails to mention that when Israel disengaged from Gaza in 2005 and Hamas took power in 2006, Hamas declared that it would no longer honour any peace agreements with Israel and that it would instead take up violence against Israeli civilians, leaving Israel with very little choice but to impose a blockade; controlling the Gazan economy being its only leverage to prevent the promised violence. Without understanding the complexity of the history, including the fact that the territory was always meant to be two states – a Jewish state and an Arab state (indeed, there were tensions between the two groups even before Israel was declared a state) – it is easy to simply criticize the status quo.

Israel has had some questionable governments over the years of its existence – it is not a perfect country by far. I do not doubt that certain of its policies and actions have caused great pain to people who did not deserve it. But just like the ceramic tile outside its headquarters, Amnesty’s criticism of Israel is one-sided and devoid of historical context. If there is one thing this conflict desperately needs, it is less focus on pinning two sides against each other and more focus on collaboration and understanding of the shared and collective pain of both Israelis and Palestinians. Reports like Amnesty’s are inflammatory and unhelpful and will achieve nothing but prolonged fighting, to the detriment of any lasting peace.

About the Author
Olivia Flasch is an international lawyer living in London. She undertook her Bachelor's Degree in Public International Law in The Hague, The Netherlands, and has a Master's Degree in Law from The University of Oxford. Born into a Jewish family in Sweden, she writes about all things Jewish, as well as about Israel and the world from an international law perspective.