More detailed explanations of the errors, omissions, and deceptions can be found in the expandable sections at the bottom.
When Amnesty released its 280-page report accusing Israel of “apartheid,” it simultaneously unleashed a wave of public relations material to promote its libel. Among such efforts is a 90-minute online course on Amnesty’s website. Entitled “Deconstructing Israel’s Apartheid Against Palestinians,” the course claims it will teach students how to:
- “Define the characteristics of the human rights violation and crime of apartheid in international law
- “Explain how the oppression and domination of Palestinians by Israel amounts to apartheid
- “Describe how apartheid affects Palestinians
- “Take action to campaign against apartheid”
Instead, Amnesty’s course ends up:
- Distorting and inventing international law;
- Applying double standards to the Jewish State, promoting false or decontextualized allegations;
- Using emotionally-charged language and obscene comparisons to compensate for the lack of substantive evidence of apartheid in Israel;
- Serving as little more than a propaganda exercise.
The following is a summary of the major errors, omissions, and deceptions that characterize the course. Below, readers may find more detailed analyses of the various issues with the course by expanding the subsections.
Distorting International Law
One of the most basic games played by anti-Israel personalities is to invent, distort, and otherwise manipulate concepts of international law in order to condemn Israel. Sometimes it is done in the sense of applying “legal” standards to the Jewish State that are applied to no one else. Amnesty’s course is no exception to this.
Israel can do no right in Amnesty’s eyes. Amnesty first condemns Israel for “annexing” territory and later for not effectively annexing territory. Labeling Israel’s “annexation” of East Jerusalem to be “illegal,” Amnesty later attacks Israel for not applying its civil law to Palestinians, which would, under Amnesty’s view of the conflict, require annexation.
The criticism comes in the form of attacking Israel for a “military regime” over Palestinians, notwithstanding that this is precisely what international law requires of Israel, which voluntarily applies the law of occupation to the West Bank pending a final peace deal. Israel instead views the West Bank as “disputed territory,” as opposed to “occupied territory” (a great case as to why the territory is is not “occupied” can be found here).
Likewise, Amnesty fails to address basic provisions of international law dealing with discrimination, including article 1(2) of the International Convention on Racial Discrimination, which specifically excludes from its scope distinctions made between citizens (Israelis) and non-citizens (Palestinians). The basic idea that states may apply different standards to citizens and non-citizens is uncontroversial; indeed, it is a fundamental concept underpinning the very idea of sovereign states.
The course also fails to accurately convey the law surrounding apartheid. Even putting aside Amnesty’s deeply flawed application of the law to Israel, the course simply glosses over the notoriously unsettled area of international law. This is particularly so on issues where there are differences between various international treaties, such as the differences between the Rome Statute and the Apartheid Convention on the element of intent.
Absurdly, while Amnesty acknowledges that the definitions of the crime of apartheid differ, it takes the easy route and focuses only on those areas in which it claims the various treaties are consistent, deliberately ignoring the difficult, unsettled questions. In other words, the course lobs a highly-charged, incendiary accusation against the Jewish State without truly addressing what the alleged crime actually involves.
Amnesty’s “Evidence” – False Claims and Distortions
Having been so loose with the law, the course is also unsurprisingly loose with the facts. Even after twisting the law, Amnesty still seemed to believe it had to invent facts and present dishonest claims to try and force its claims to meet the law. The course ignores almost entirely the existence of repeated wars launched by neighboring states against Israel, and even casts Israel’s four Gaza operations – each launched after barrages of rockets against Israeli civilians – as “offensive” operations.
A blatant example of dishonesty is when Amnesty’s Philip Luther flat-out lies about casualty figures. During one of the course’s videos, it is claimed that 4,868 Palestinians have been killed “outside armed conflict.” Except Amnesty’s source for this claim doesn’t actually say that; rather, it claims that 4,868 Palestinians “who were not taking part in hostilities” have been killed from September 2000 to February 2017. “Taking part in hostilities” is a concept in the law of armed conflict which addresses when a civilian may becomes a legitimate target. Someone “not taking part in hostilities” does not mean they were not killed during an armed conflict. Thus, Amnesty is attempting to portray Palestinians who were tragically killed during the fighting between Israel and Gaza terrorist groups during Israel’s defensive operations as having been killed “outside armed conflict.”
The same video also cites as evidence of apartheid a figure of 4,236 Palestinians being held in Israeli prisons. If one accepts as true this figure, then Israel’s incarceration rate of Palestinians (approximately 185 per 100,000) would be only slightly above the incarceration rate in all of Europe (175 per 100,000) and less than half that for all of the Americas (376 per 100,000). In fact, it would even be less than Israel’s incarceration rate as a whole (234 per 100,000).
But the worst of the “evidence” for “apartheid” cited by Amnesty is, quite simply, that the Jewish people are exercising their right to self-determination in a Jewish state. That is the essence of the course’s repeated claims that Israel, as a Jewish state, somehow is committing apartheid and denying Israel’s Arabs the same rights by being the nation-state of the Jewish people.
At one point, Amnesty even claims Israel’s Nation-State Law says something it does not – that it denies the right to self-determination to non-Jews.
The claim is baseless. Amnesty is either intentionally deceiving the course’s students, or the organization isn’t aware that the right to self-determination involves two different forms: internal and external.
Israel’s Nation-State Law recognizes what the Mandate for Palestine, the Balfour Declaration before it, and even the United Nations Partition Resolution sought – a nation-state for the Jewish people. That is external or national self-determination. But the right to self-determination can also be fulfilled through its internal form, whereby a minority people’s identity, culture, and rights are protected and developed within existing borders.
While discrimination exists in Israel just like in any democracy with a significant minority population, Israeli law is clear that all Israelis are equal under the law. Furthermore, the protections afforded to Arab-Israelis’ group rights (language, education, religion, etc.) even go beyond international norms.
Simply put, the existence of a nation-state for a people, with protections and equal rights for minority populations, is not only allowed for under international law, but is actually quite common, including in the European Union.
Yet according to Amnesty’s course, it is only problematic in the Jewish State.
Emotionally-Charged Language & Obscene Comparisons
Throughout, Amnesty uses the course like an old-school campaign attack ad: heavy on emotionally-charged language and images but devoid of any actual substance. By simply lobbing all sorts of words with negative connotations at Israel, Amnesty is trying to mask the flimsiness of its accusation of Israeli apartheid. This is evident, for example, in the course videos in which sinister backgrounds are shown such as images of explosions with the text “Attacks on Gaza.”
Amnesty builds on this by throwing emotionally-charged language at Israel while simultaneously failing to actually provide evidence to justify the accusations.
For example, the course claims: “As of 2021, there are 358,800 Palestinian residents of East Jerusalem…. Around 150,000 of them live in areas segregated from the rest of the city by the fence/wall…” The use of the word “segregated” is meant to evoke images of Jim Crow and apartheid South Africa.
Yet the very same figures provided disprove this characterization. If the majority of Palestinian residents of East Jerusalem live on the same side of the security barrier as Israelis, it’s difficult to understand how this could be classified as racist “segregation.” The basic figures Amnesty provides are evidence against the idea that there is a purpose of racist domination behind the security barrier, as opposed to the obvious security reasons.
Amnesty takes these obscene comparisons further. It compares Israeli “underfunding” of schools to apartheid South Africa’s racially-segregated schools. It misleads about an Israeli military order – akin to protest laws in other democracies – to compare to Myanmar’s denial of the right to vote for the Rohingya.
These types of forced comparisons fail to show Israeli “apartheid.” Instead, they succeed only in debasing the meaning and value of international human rights law.
An Exercise in Pure Propaganda
Toward the end of the course, Amnesty shows a brief video about Janna Jihad, a young girl from the same Tamimi clan that brought us, among other unsavory actors, the other Palestinian child propaganda star Ahed Tamimi, raging antisemite Manal Tamimi, and mastermind of the Sbarro pizzeria bombing Ahlam Tamimi.
The video’s theme is the tragedy that Janna’s childhood has been stolen from her, as she’s had to turn into a citizen journalist to fight the occupation, all while footage of her as a 3- or 4-year-old child singing songs and shouting “occupation no more” is displayed.
Aside from the obvious issues of morality in using such a young child for such purposes, it insults the intelligence of any viewer to suggest that a toddler decided to fight “occupation” with “journalism,” let alone even comprehend the concepts.
But Amnesty doesn’t seem to have any qualms about this. Its video proudly features a young Janna shouting, “Terrorist people, people with no humanity are coming to our land.”
In exploiting a child to spread a message of hate – in which Jews are alien “terrorists” and “people with no humanity” – Amnesty unintentionally gave a perfect encapsulation of the propagandistic nature of its course.
Lacking factual and legal support for its claims, Amnesty resorts to repeating emotionally charged, but substantively empty, language and claims that – rather than educate students of the course – work only to demonize Israelis and delegitimize the Jewish State.
In the end, Amnesty’s course serves to illuminate only the sad decline in professionalism and respectability of what was once a noble human rights institution.
Distorting the Law
Most revealing about the purported “educational” course by Amnesty is how it constantly contradicts itself while it evades having to address difficult questions about its claims.
This is particularly true in the context of addressing the reality of the conflict. For example, consider these two statements found in the same course:
“In 1980, Israel unilaterally formalized its 1967 annexation of East Jerusalem (which is illegal under international law)…”
Israel “applied its civil law to Israeli settlers while enforcing a military regime on Palestinians.”
First Amnesty attacks Israel for “annexing” territory. Then Amnesty effectively attacks Israel for not annexing territory so as to apply Israeli civil law to Palestinians. When it comes to Israel, Amnesty’s approach is “damned if you do, damned if you don’t.”
The international laws of armed conflict create specific rules and regulations for situations of occupation. While Israel does not consider the territories occupied, it applies these laws voluntarily.
One of the most basic concepts of the law of occupation is that it involves military administration. As the legal scholar Yoram Dinstein has written, “the government of an occupied territory is military per definitionem,” and even where a civil administration of some form may be created, it serves “only as a subdivision of the military government, and not as a separate body.”
In short, when Amnesty attacks Israel for “enforcing a military regime on Palestinians,” Amnesty is literally criticizing Israel for abiding by international law.
Amnesty’s refusal to engage in any serious analysis of the law of occupation poses serious problems for its own arguments. An example of this, in addition to those addressed below, is when Amnesty repeatedly references “severe restrictions on movement” as evidence of “apartheid.”
But restrictions on freedom of movement can “naturally be made subject in war time to certain restrictions,” in the words of the International Committee for the Red Cross, which notes that “the freedom of movement of civilians of enemy nationality may certainly be restricted, or even temporarily suppressed, if circumstances so require.”
This is, of course, not a carte blanche to curtail freedom of movement entirely. Restrictions must be considered in light of other provisions of the Geneva Conventions. But it is exactly this type of balancing and analysis that Amnesty avoids in order to cast Israel’s respect for the international law of occupation as somehow actually evidence of Israel’s violation of the law against apartheid.
While legal revisionists would seek to argue that the extended nature of the Israeli “occupation” makes it somehow unique, this runs counter to the fact that prolonged and indefinite occupations are considered under the 4th Geneva Convention, which reads, in article 6:
“In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles…” (emphasis added)
In this sense, Amnesty unintentionally gets to the crux of the matter when, in passing, it mentions that “negotiations stopped, the Palestinian state was never established, and the areas remain under the overall control of Israel and continue to be militarily occupied.”
While Israel does not believe the territories are occupied, it has held off from annexing the West Bank and Gaza since 1967 for the express purpose of negotiating a final status peace deal with the Palestinians which would end the “occupation.” To this end, Israel has engaged in numerous peace conferences and made generous offers to Palestinian leadership that would have seen the creation of an independent Palestinian state in virtually all of Gaza and the West Bank. Tragically, Arab and Palestinian rejectionism has prevented the conclusion of a peace deal for decades.
Despite Amnesty’s attempt to suggest otherwise, the mere fact that one of the parties to a conflict refuses to accept or even engage in peace negotiations that would end a situation of “belligerent occupation” does not create an unlawful “apartheid” situation. That Israel abides by the laws of occupation does not mean that Israel has apartheid policies just because Palestinian rejectionism has dragged on the conflict for decades.
The course manages to mention the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in the sense that it condemned “racial segregation and apartheid” and the parties to the convention agreed to prevent, prohibit, and eradicate such practices.
What Amnesty doesn’t mention is article 1(2) of ICERD, which reads:
“This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.”
While the use of human rights law (such as ICERD) for the purpose of understanding international criminal law (such as the Rome Statute) is limited (as discussed further below), that limitation generally has to do with the principle of legality (i.e., one cannot be convicted of something that was not a crime at the time).
Palestinians are, of course, non-citizens, and are under Israel’s authority as a result of a failed invasion by surrounding Arab armies, during which Israel recaptured the West Bank and Gaza. Israel has thus far refrained from “annexing” the West Bank so as to preserve the possibility of a two-state solution that would provide Palestinians with their own state in those territories. This is, indeed, what much of the international community is asking of Israel. To make Palestinians citizens would, in effect, end the longstanding efforts to secure a two-state solution.
Of course, article 1(2) is not declaring open season for discrimination against non-citizens. But it nonetheless affects any real analysis of Israeli policies towards the Palestinians.
It also exposes the general absurdity of Amnesty’s overall charges. The course – like the report itself – claims that Israel commits apartheid against Arab-Israelis, Palestinians in the West Bank, Palestinians in Gaza, and Palestinians abroad. Each of these situations is dramatically different, requiring very different analyses (except the claim regarding Palestinians abroad, which is facially absurd). Any analysis of Israel’s treatment of Arab-Israelis on the one hand, and Palestinians in the West Bank on the other hand, would need to address both the factual and the legal differences. Yet, at no point does Amnesty truly engage in such an examination.
It is also worth pointing to another aspect of ICERD conveniently ignored by Amnesty’s course. While the organization attacks Israel’s Law of Return, it ignores that such a law is explicitly allowed under articles 1(3) and 1(4) of ICERD to remedy for past discrimination, which the Jewish diaspora has suffered for millennia.
Though apartheid is prohibited under international law in several multilateral treaties, the exact nature of the concept is not well developed. A full examination of the law around apartheid is beyond our scope, though there are a number of excellent and informative writings on the subject by Barrister Joshua Kern, Anne Herzberg, Carola Lingaas, and NGO Monitor.
In particular, there is a difference between the inter-state prohibition of apartheid and the crime of apartheid. Amnesty glosses over this distinction and its relevance in understanding what the crime of apartheid actually involves – and the differences between various definitions – when it proclaims that the prohibition of apartheid is a peremptory norm of international law (i.e., every state is obligated, regardless of whether it has ratified a treaty with said obligation or not). But as Barrister Joshua Kern and Anne Herzberg point out, while the general prohibition may be considered a peremptory norm, “its prescription as a war crime and crime against humanity derives from its treaty bases, rather than under customary international law.”
International criminal law involves the idea that the definition of crimes must be strictly construed, as well as the principle of legality (i.e., one may not be convicted if the action was not actually prohibited when the crime was committed).
These are principles Amnesty’s course on “apartheid” not only fails to teach, but openly tosses to the side. Amnesty acknowledges that the definitions of the crime of apartheid differ between treaties, choosing to focus on just “six key elements” that “emerge clearly and consistently” between the definitions.
In other words, Amnesty admits the precise contours of the crime are unclear, and instead of addressing this complexity, it simply opts to focus on the elements it decided were the easiest, all while ignoring the important, difficult elements. This is like charging someone guilty of involuntary manslaughter with intentional homicide while arguing that it makes no real difference since many of the elements are the same.
One of those key differences has to do with the element of intent. As explained by Barrister Joshua Kern:
“[U]nder the Rome Statute, the prosecution must prove the existence (actus reus) of a system of domination (in addition to systematic oppression) by one racial group over another. It is not enough simply to prove an intent (mens rea) to maintain such a system. With respect to the nature of the intent, the texts of the Apartheid Convention and the Rome Statute also differ. The Rome Statute’s mens rea encompasses the intent to maintain a regime of systematic oppression and domination by one racial group over another. The Apartheid Convention requires proof of acts committed for a “purpose” of establishing and maintaining domination by one racial group over another, and systematically oppressing them.”
Amnesty similarly glosses over other important and unsettled issues in defining the concept of the crime of apartheid. One of the “six key elements” is “inhumane or inhuman acts committed against members of a racial group.” In explaining this element regarding “racial groups,” Amnesty states:
“The Convention on the Elimination of Racial Discrimination defines racial discrimination as ‘any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin.’” (Emphasis added)
But, as law professor Carola Lingaas explained in reference to the Human Rights Watch “apartheid” report:
“Moreover, ‘racial discrimination’ cannot be juxtaposed to ‘racial group(s)’. This holds particularly true for Art. 7(2)(h) of the Rome Statute which, in the definition of the crime of apartheid, omits the word ‘discrimination’. Second, the application of human rights law [such as from ICERD] in the interpretation of an international crime is problematic for a number of reasons. International criminal law is governed by the principles of strict legality, foreseeability, and specificity….[I]t remains questionable to interpret a criminal provision by reverting to a concept of human rights law. International criminal law has different aims than human rights law, namely the “end to impunity for the perpetrators of (…) crimes and thus to contribute to the prevention of such crimes” (Preamble Rome Statute), whereas human rights law inhibits a state’s interference into an individual’s rights. The former must always be interpreted strictly, while respecting the procedural rights of the accused, while the latter will generally be interpreted broadly in order to provide individuals more rights and freedoms. Often, human rights law is interpreted dynamically, thus removing the foreseeability and specificity upon which international criminal law rests. Art. 21(3) of the Rome Statute notably holds that ‘the application and interpretation of law (…) must be consistent with internationally recognized human rights’, but has been interpreted to be of relevance to procedural matters only.”
In criminal law, precision matters. Furthermore, it is important not to cheapen what the most horrible crimes known to man actually entail. When, for example, Russia demeans and diminishes the crime of genocide to achieve political ends, the world rightly responds with disapproval. Here, Amnesty is diminishing what the crime of apartheid actually involves, in all of its complexity, in order to demonize Israel.
The Actual “Evidence” of Apartheid
A preliminary note must be made, in assessing the “evidence” presented that Israel is committing “apartheid,” regarding Amnesty’s handling of the reality of the conflict. Or rather, lack of handling. A true legal and factual analysis would require Amnesty to confront an uncomfortable reality for them: that the Israeli-Palestinian conflict is just that – a conflict.
Throughout the course, the existence of violent conflict is downplayed, erased, or otherwise distorted. This isn’t just a matter of perspective. It directly affects any serious legal analysis of whether Israel is committing apartheid. As elaborated on further below, intent forms a key part of any serious legal analysis. By refusing to acknowledge crucial details which if considered would lead many (if not most) observers to the conclusion that Israel’s intent behind key actions is to provide security for Israeli citizens, Amnesty is, in practice, serving as little more than a one-sided propaganda outlet.
The course describes the Gaza operations of 2008, 2012, 2014, and 2021 with the language “Israel launched military offensives against Gaza,” notwithstanding that in each case, the operations were preceded by Palestinian terror attacks and rocket launches from Gaza.
Operation Guardian of the Walls began after Hamas fired a salvo of 150 rockets on May 10, including at Jerusalem. Operation Protective Edge was preceded by the kidnapping and murder of three Jewish teenagers and the launching of approximately 300 rockets at Israel. Operation Pillar of Defense came after an anti-tank missile attack on an Israeli jeep and the launching of hundreds of rockets and mortar shells in the preceding weeks. Operation Cast Lead began after a record-breaking year which saw 3,278 rockets and mortar shells landing in Israeli territory during 2008.
Going further back in time, Amnesty describes Israel’s War of Independence in these terms:
“In the 1947-49 conflict, before and after the May 1948 declaration of the State of Israel, thousands of Palestinians and Jews were killed and more than 800,000 Palestinians were displaced from their homes in the context of attacks on civilians. This is known as the nakba (catastrophe) by Palestinians.”
No mention that the war was initiated by an invasion of surrounding Arab armies with the explicit purpose of destroying the Jewish state. No mention of the ethnic cleansing and massacres of Jewish residents in places like the Jewish Quarter and Gush Etzion. No mention of the 850,000+ Jewish refugees driven from Arab states simply because they were Jewish.
In the context of 1967, Amnesty doesn’t even mention that a war occurred. Reading only the content of the course, one would think the only notable thing that happened in 1967 was that “Israel extended [its policy of maintaining a Jewish demographic hegemony] to the West Bank and the Gaza Strip.”
An example of how Amnesty’s one-sided refusal to even acknowledge and attempt to disprove plausible alternatives pollutes its analysis appears in the context of the security barrier. The course refers to the barrier with charged terminology like “segregated” (notwithstanding that the same sentence contradicts the claim of segregation by acknowledging that most Arab Jerusalemites aren’t actually separated from Israelis), yet never addresses the context in which the barrier was built. Nor does the course address the Israeli court cases which considered and ordered alterations to the barrier’s route (see, e.g., the Beit Sourik Village Council case and the Mara’abe case) that would have shed light on Israel’s purpose and considerations in building the barrier.
The barrier was, of course, built during the Second Intifada, which involved a horrifying wave of suicide bombings, shootings, and other terrorist attacks that killed hundreds of Israeli men, women, and children. It has since had a dramatic effect in reducing the number of suicide bombings.
Even assuming arguendo that the security barrier was actually about racism, any serious analysis would still have to examine and disprove the Israeli counterclaims of security needs. Amnesty makes no such attempt, however, because it wants to divorce the law and facts from its highly charged accusations against Israel.
During one of the course’s videos, featuring Amnesty’s Philip Luther, it is claimed that “4,236 Palestinians [are] held in Israeli prisons.” Bearing in mind that Amnesty considers that Arab-Israelis are Palestinians – notwithstanding that only a tiny minority define themselves that way – it’s not clear whether this is referring to just Palestinians or also includes Arab Israelis. For the sake of argument, let’s assume the former.
According to the CIA World Factbook, the population of the West Bank in 2021 included approximately 2,290,146 Palestinians. That means – if Amnesty’s figures are to be believed – the incarceration rate of Palestinians in Israeli prisons is approximately 185 per 100,000. By comparison, the prison population rate for all of Europe is 175 per 100,000, and the rate for all of the Americas is more than double at 376 per 100,000. That rate would even fall below the incarceration rate for Israel as a whole, listed at 234 per 100,000 by World Prison Review.
It’s never explained how incarceration numbers truly evidence apartheid, anyway. It doesn’t seem to be a good indicator. If the two “apartheid” states in existence are Israel and Myanmar, it’s notable that Myanmar’s incarceration rate is also rather unremarkable, at 171 per 100,000, just below that of Europe.
Later in the Luther video, it is claimed that “[b]etween September 2000 and February 2017, Israeli forces killed 4,868 Palestinians,” while text on the screen provides the context of “Outside Armed Conflict.” This is a blatant lie.
The figure 4,868 appears in the report with a citation to a B’tselem article from March 2017. The B’tselem article does not actually claim they were killed “outside armed conflict.” Instead, it claims the deaths were those “who were not taking part in hostilities.”
Those are two wildly different statements. Someone not taking part in hostilities can still be killed during armed conflict. Amnesty twists B’tselem’s claim to make it appear as if Israel goes around freely killing Palestinians for no reason.
This blatant lie is not insignificant. Palestinian terrorist groups intentionally embed themselves in civilian areas. Israeli forces make extraordinary efforts to abide by the law of armed conflict and protect civilians. According to a group of former high-level officials from multiple western militaries reviewing Israel’s conduct in Operation Protective Edge, the IDF “met and in some respects exceeded the highest standards we set for our own nations’ militaries.”
Nonetheless, collateral damage is inevitable in situations of urban warfare. As a tragic consequence, during those 17 years, thousands of civilians have died during military operations between terrorist organizations and the Israeli Defense Forces.
Still, it is also likely that B’tselem’s figure is inaccurate, too. Casualty figures and the circumstances of these deaths during the Gaza conflicts are always difficult to verify, and usually provided solely by the Hamas authorities in Gaza. For example, B’tselem claimed that during Operation Protective Edge, 2,185 Palestinians were killed, 1,369 of whom were not participating in hostilities, while 47 deaths occurred in unknown circumstances.
However, an analysis carried out by the Meir Amit Intelligence and Terrorism Information Center concluded that of the 2,140 Palestinian deaths it recorded, 886 were terrorist operatives, 712 were non-involved civilians, and the remaining 542 fatalities occurred in circumstances that could not be determined. Meanwhile, a High-Level Military Group assessment of the conflict noted that about 70% of the casualties were men of fighting age. It went on to explain:
“Further, the figures require challenging on the basis of inaccurate, in some cases deliberately so, inclusions and classification. Challenges include the inclusion of duplicate names, incorrect ages, combat-related deaths caused by Hamas or its affiliate organisations, such as in the case of misfired rockets, and deaths not related to the hostilities but classified as such. Hamas also executed persons it accused of collaborating with Israel, as documented and recognised as a war crime both by Amnesty International and the UNHRC. Additionally, militants known to have been killed in the war are not listed. Efforts at categorisation are hampered by Hamas’s deliberate strategy of blurring the distinction between its fighters and civilian casualties and inflating Palestinian civilian casualty counts. Hamas’s Ministry of Interior in the Gaza Strip has gone as far as publishing guidelines urging its supporters to ensure they add the moniker ‘innocent civilian’ to descriptions of casualties.”
Another point of attack on Israel by the course is land ownership and Israel’s Absentee Property Law. Like with the report itself, Amnesty’s course ignores context and history and even plays maliciously deceptive games with the figures it provides.
First, the dishonest numbers game. In the section “A system of oppression,” Amnesty claims that “[u]ntil 1948, Palestinians owned about 90% of the privately owned land in mandate-era Palestine. As of 2021, approximately 93% of the land in Israel is state and public lands, used almost exclusively for the benefit of Jewish Israelis…”
As CAMERA has already documented in reference to the report, Amnesty is playing an arithmetic trick here. It measures Palestinian ownership in 1948 in terms of privately owned land, but Israel’s 2021 ownership in terms of publicly owned land. Amnesty is applying two different metrics to try and trick readers into thinking Israel stole tons of privately-owned Arab properties and converted them into state-owned properties.
In truth, state-owned property pre-1948 was likely as high as 76.2% of the land. Privately-owned Arab lands, excluding waste land, amounted to 15.2%, whereas privately-owned Jewish properties amounted to approximately 8.6%.
The course then casts Israel’s Absentee Property Law – which deals with the disposition of properties captured by Israel during wars – as evidence of “dispossession of land and property,” and thus “apartheid.” But as CAMERA has also already written, this law is not unique. Furthermore:
“Since the absent Palestinian owners were mostly residing in enemy states, they couldn’t pay, for example, property taxes (certainly the Arab states would not have permitted them to send any money to Israel). So they would have lost the property for non-payment of taxes. Instead of simply taking the property in this way, Israel protected the Palestinian owner’s interest by turning the property over to the Israeli Custodian, who, if he sold the property, held the value of the property in trust for the registered owner (with adjustments for inflation and interest).”
On the other hand, Jewish properties that fell into Jordanian control during the 1947-49 war were taken over by the Jordanian Custodian of Enemy Property. Such property was often used to build Palestinian refugee camps.
A specific example of what happened to Jewish-owned properties is the Sheikh Jarrah/Shimon HaTzadik neighborhood. The properties were acquired by Jewish groups in 1876, which owned the property until Jordan captured the neighborhood in the 1947-49 war. The properties were taken by the Jordanian Custodian of Enemy Property before eventually an agreement was reached in 1956 between the Jordanian government and UNRWA to use the properties to build houses for 28 Palestinian families. Importantly, the land was leased – ownership was retained by the Jordanian Custodian.
As explained by law professor Avi Bell:
“In accordance with the British legislation on enemy property on which the Jordanian law was based, Jordan’s sequestration of enemy property only extinguished owners’ rights completely if the state seized title by eminent domain or if the Custodian transferred title to someone else. Importantly, in the case of the Sheikh Jarrah properties, the Jordanian Custodian did not purport to transfer ownership of the properties to anyone else.
Ironically, if the Jordanian Custodian of Enemy Property had assigned title to the predecessors of the current Palestinian Arab holdover tenants over the lands it seized from Jewish owners, Israeli law would have respected the resulting title. The reason the holdover tenants in Sheikh Jarrah lack ownership today is not because the state of Israel has denied the Palestinian Arabs any rights they acquired, but, rather, because the government of Jordan declined to give the Palestinian Arabs title to the land Jordan had seized.”
Nonetheless, instead of evicting the tenants, the Palestinian residents have been treated as protected tenants, and the Jewish claimants in the court case simply requested they pay rent for the property. Since 1982, the court case has been ongoing as the Palestinian residents continue to refuse to pay rent on the Jewish-owned property.
Instead of acknowledging these facts, and the inevitable complexity in dealing with properties lost and recaptured during wars, the course only references the properties as an example of “Israel’s targeted campaign to expand illegal settlements.” In other words, Amnesty views properties that were owned by Jews since the 19th century, with only a brief 19-year interruption after their capture by the Jordanian army, as an “illegal settlement.”
Notably, Amnesty’s concern doesn’t seem to extend to the hundreds of thousands of Jewish refugees driven out of Arab countries since the 1940s. Unlike Arab refugees from Israel, who under Israeli law are entitled to compensation for the value of their properties held by the Israeli Custodian, Jewish refugees have been denied compensation for all the property they lost.
Amnesty’s course follows the familiar antisemitic path as groups like Human Rights Watch when it suggests that Israel is about “Jewish supremacy,” or in the words of the course, Jewish “hegemony.”
Referring to laws like Israel’s Nation-State Law and the Law of Return, the course claims that “all territories controlled by Israel continue to be administered with the purpose of benefiting Jewish Israelis to the detriment of Palestinians” and that “Israel has pursued an explicit policy of establishing and maintaining a Jewish demographic hegemony.” It asserts that “Palestinians who remained in Israel did become citizens, but not nationals… They continue to have inferior legal status to Jewish citizens.”
This is utter nonsense. Arabs in Israel enjoy the same rights as Israeli Jews, and the mere fact that a country is the nation-state of a particular people has no negative effect on the rights of other citizens of that country. That Israeli law grants Jews in the diaspora a special path towards citizenship – something explicitly allowed in international law – does not change the fact that once they become citizens, they have the exact same rights as all other Israelis, including Arabs.
What Amnesty is effectively arguing is that self-determination in the form of a nation-state is discriminatory when it is for the Jewish people.
The concept of self-determination is embodied in the United Nations Charter and the International Covenant on Civil and Political Rights, the latter of which states “all peoples have the right to self-determination.” Amnesty would seem to argue that “all peoples” somehow implies an exception for the Jewish people.
But this is what the Mandate for Palestine was all about – the “establishment in Palestine of a national home for the Jewish people.” At the end of 1947, the United Nations even adopted the partition plan, in which “independent Arab and Jewish States” were to be created.
Of course, even where a people exercise their right to self-determination in a nation-state, minority rights must be protected. The idea of a nation-state for a people and the protection of minority rights are not contradictory. Indeed, the Mandate for Palestine referenced this directly when it approved:
“[T]he establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine…”
In this sense, the Nation-State Law is entirely unremarkable. According to law professor Eugene Kontorovich, “[a]mong European Union states, seven have similar constitutional ‘nationhood’ provisions.” Not only is Israel’s version written in a declarative manner – having no actual effect on the rights of any Israeli – but the Israeli Supreme Court made clear that the law must be interpreted in harmony with other constitutional principles such as equality.
This is exactly the point that Amnesty tries to hide in both the course and the report. As CAMERA pointed out, Amnesty’s report opens with a selectively edited quote from former Israeli Prime Minister Benjamin Netanyahu. It cuts off the last sentence of the following quote in order to maliciously distort what Netanyahu was saying:
“Israel is not a state of all its citizens. According to the Nation-State Law that we passed, Israel is the nation-state of the Jewish People – and them alone. As you wrote, there’s no problem with the Arab citizens of Israel – they have the same rights as us all and the Likud government has invested in the Arab sector more than any other government.” (Emphasis added to the portion Amnesty cuts out)
It’s important to note that the existence of nation-states for other peoples, which similarly protect minority rights, has received no comparable criticism from Amnesty.
In Israel and the Family of Nations, Alexander Yakobson and Amnon Rubinstein review legal provisions similar to Israel’s Nation-State Law and Law of Return in countries like Ireland, Finland, Greece, Poland, Slovenia, and Germany.
Reviewing these provisions, state practice, and European Commission reports, Yakobson and Rubinstein point out that “a modern democratic state can, and frequently does, embody a national identity that does not include all its citizens; sometimes this identity may be shared by people who are citizens of other states; but the political sovereignty in the state belongs in any case to all its citizens.”
For example, article three of Slovenia’s constitution states “Slovenia is a state of all its citizens and is founded on the permanent and inalienable right of the Slovenian nation to self-determination.”
That Slovenia is the nation-state of the Slovenian people does not mean that minorities in Slovenia are denied equal rights. That Spain defines itself as the “Spanish nation, the common and indivisible homeland of all Spaniards” does not mean that other nationalities inside Spain have had their right to self-determination violated.
An important element of international law in this regard is the nature and extent of the right to self-determination. The course claims that the Nation-State Law declared that “the right of self-determination is exclusive ‘to the Jewish people’.” This is entirely false.
The law specifically provides “[t]he exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” By leaving out the word “national,” Amnesty is either intentionally lying about the law, or the authors of the course do not understand what self-determination means in international law.
The concept of self-determination has two components, external and internal. External self-determination, also known as national self-determination, which Israel’s Nation-State Law is about, deals with the national aspirations of a people to a sovereign state. Internal self-determination, on the other hand, involves the development of a people’s identity, culture, and rights within existing borders.
The promotion of external/national self-determination was what led to the process of decolonization after World War II. With post-colonial borders already set, it is generally (though not universally) understood that the right to self-determination does not include a right to secede for minority ethnic or national groups. Rather, the concept these days largely involves protecting minority groups within states.
Thus, a people’s right to self-determination does not necessarily require granting them a nation-state of their own, though that is what the international community supported for the Jewish people during the decolonization era and attempted to do in 1947 for the Palestinian Arabs, who tragically rejected statehood if it meant the Jewish people would also have a nation-state.
As with every democracy with a sizable minority, Israel is not perfect, and inequalities and discrimination exist in both the public and private spheres. But, as the Israeli Supreme Court has repeatedly asserted, Israel’s Arabs have equal rights under Israeli law. Furthermore, according to Yakobson and Rubinstein: “When it comes to language, education and culture, the collective rights of Israel’s Arab minority are…wide and far-reaching by international standards.”
So while national self-determination is unique for the Jewish people in Israel, that does not mean Arab-Israelis are denied self-determination. To suggest otherwise would be to suggest that Canada is infringing on the rights of the Quebecois by not allowing the French-speaking province to secede.
In the end, Amnesty’s course is teaching students less than a half-truth. It obscures the actual reality on the ground and the nature of Israeli law. It fails to even address basic concepts of international law that cut against Amnesty’s claim and in the end demonstrate that not only is Israel not an “apartheid” state, but has actually taken admirable steps to protect minority rights.
In a section of the course entitled “Cruelty in law and practice,” underneath the title “No education… no decent future,” Amnesty compares three issues in Israel, apartheid South Africa, and Myanmar. It points to how black South Africans were kept in racially separate schools and how in the Rakhine State of Myanmar, Rohingya children are not allowed in government schools.
What is Israel’s crime to which Amnesty compares these horrible acts? “Underfunding,” as well as “discriminatory urban planning,” the latter of which is never really explained in terms of its relevance or effect.
As in every diverse country, disparities exist in education, and the Israeli education system isn’t perfect. Arabic-speaking schools do lag behind secular Hebrew-speaking schools, with one OECD report finding that 82.2% of students in Arabic schools completed secondary education, compared to 98.2% of students in Hebrew schools. But students at Arabic schools far outperform students in Jewish religious schools, where only 51.3% of students completed secondary education.
Moreover, while funding disparities do exist between various municipalities, the OECD explains that this reflects the relative affluence of the localities. Hardly a reflection of a nefarious apartheid policy, the same issue exists in other countries, including in the United States. Notably, as the OECD points out, Israel has over recent decades engaged in numerous efforts to devote resources to improving Arabic schools and reducing inequalities at the primary and secondary level.
It is important to note, in this regard, that Israel’s Supreme Court has repeatedly ruled that “the principle of equality is binding on all of the country’s public bodies… It applies, first and foremost, to the allocation of the State’s resources.” (HC 1113/99, Adallah et al. vs. Minister of Religious Affairs). Whereas apartheid policies in South Africa were instruments of the law – such as prohibiting mixed schools – in Israel the law works to combat discrimination.
Bizarrely, Amnesty even provides evidence that counters its own claims. The course mentions how in Myanmar, Muslim students are banned from attending Rakhine state’s only university. This is, of course, in direct contrast to the situation of Arab-Israelis. While they are still somewhat underrepresented in higher education, Arab-Israeli participation in higher education has grown dramatically in recent years, due at least in part to a government program that has dedicated hundreds of millions of shekels towards better integrating the Arab-Israeli community into higher education.
Also worth noting is that in the same section, Amnesty cites as evidence of Israeli discrimination in education “military operations that destroy schools,” presumably referencing the recent wars between Israel and Palestinian terrorist groups in the Gaza Strip. Of course, it says nothing about the public evidence of terrorist exploitation of schools, including by launching rockets from schools, digging tunnels underneath schools, and using schools to store weapons.
But in this context, what Amnesty is suggesting is both absurd and borders on being a blood libel. The suggestion that the Jewish state has a policy of bombing schools just to interfere with the education of Palestinian children in Gaza is groundless and offensive.
Later in the “Cruelty in law and practice section,” under the heading “Silencing Dissent,” Amnesty once again points to practices in Israel, Myanmar, and apartheid South Africa. For Myanmar, Amnesty points to a series of measures to deny Rohingya the right to vote. For South Africa, the Sharpeville Massacre – when police opened fire on a crowd of black South Africans, killing and injuring hundreds – is raised.
Israel’s comparable crime? In Amnesty’s words:
“Military Order No. 101, which punishes and criminalizes Palestinians for attending and organizing a procession, assembly or vigil of 10 or more people without a permit for an issue that ‘may be construed as political’. The Order effective bans protests, including peaceful protests…”
Here’s what Amnesty doesn’t tell those taking the course. According to NGO Monitor:
“[T]he only demonstrations requiring a permit under the law are those that raise the specter of incitement to violence or have links to terror groups. Other gatherings can be held without prior permission. Second, the requirement to receive a permit from Israel only applies to Area C of the West Bank, which according to the 1993 Oslo Accords is under Israeli jurisdiction.”
In other words, the Order only applies to the part of the West Bank inhabited mostly by Israelis, and only applies to demonstrations that may involve incitement and/or violence. International law provides that restrictions on public demonstrations may be instituted where necessary for “public safety” or “public order,” something explicitly referenced in Military Order No. 101 (“in a way which would be detrimental to public order/security”).
Legitimate debate can be had about the wisdom or appropriateness of such restrictions. But that is not what Amnesty is engaging in here. Amnesty refrains from any serious analysis, examining the justifications for and the costs of such policies, and what the possible competing legal arguments are for and against such a policy. At no point does the course acknowledge that the same policy exists around the world, let alone try to explain why when Israel does it, it is apartheid.
The takeaway is that Amnesty is not serious about an academic discussion of complex topic. Instead, Amnesty exhibits only a willingness to decontextualize reality in order to demonize Israeli Jews.