Briefing By:
Henry Kopel, AGPI Global Advisory Board
Former Federal Prosecutor with the US Department of Justice
February 1, 2022

In a report issued today, Amnesty International charged Israel with committing “Apartheid Against Palestinians” through “a Cruel System of Domination and a Crime Against Humanity.” The Abraham Global Peace Initiative (AGPI) rejects these charges as contrary to fact, and calls on Amnesty International to withdraw the report and disavow its inflammatory accusations.

This is not a question of subtle meanings, or of legalistic close calls. By no stretch of the imagination is Israel an apartheid state.

Encyclopedia Britannica Online notes that apartheid is an Afrikaans word for “apartness,” and consists of a “policy that governed relations between South Africa’s white minority and nonwhite majority for much of the latter half of the 20th century, sanctioning racial segregation and political and economic discrimination against nonwhites.”
That definition utterly fails to describe Israel’s own laws and society, and similarly fails to reflect Israel’s relationship with the Palestinian territories of the West Bank and Gaza.

With respect to Israel’s internal laws and practices, the inaccuracy of the apartheid label is immediately apparent. As summed up by the Conference of Presidents of Major American Jewish Organizations, the Amnesty Report:
disregards the fact that Israel’s robust democracy grants its Arab citizens full rights and equality, includes an Arab Muslim nationalist party in Israel’s governing coalition, as well as a history of senior Israeli Arab governmental officials, including Supreme Court justices, government ministers, high-level diplomats, military officers and members of Knesset.”

The absurdity of the apartheid charge is made clear by such facts as these, highlighted by the media monitoring group CAMERA (Committee for Accuracy in Middle East Reporting and Analysis):

Consider, for example, that in the supposedly apartheid state of Israel, when President Moshe Katsav was charged with serious crimes against female aides, he was convicted by a three-judge panel headed by an Israeli Arab judge . . . . When [Katsev] appealed to the Supreme Court the charges were upheld by a three-judge panel that included a different Israeli Arab judge, Supreme Court Justice Salim Joubran.

So the Jewish state practices a unique and previously unknown form of apartheid, where the Israeli Jewish president can be thrown in jail by Israeli Arab judges. And Katsav didn’t receive a slap on the wrist – he was in jail for five years.

CAMERA’s analysis of the Amnesty Report also reveals that it presents misleading statistics about comparative land ownership by Jews and Arabs, greatly exaggerating the relative Arab ownership share in 1948 in order to create a false appearance of Israeli land expropriation. The Amnesty Report also omitted this compelling statistic on contemporary land ownership, which further refutes the charge of “cruel domination” by Israel over its Arab citizens: “today Israeli Arabs own a disproportionately large 50% of the private land in Israel, despite being just 20% of the population.”

The Amnesty Report also appears to rest its case on similarly misleading claims about the relative treatment of Israelis and non-resident Palestinians who lost land in East Jerusalem in 1948, claiming that Israel operates “a clearly discriminatory compensation scheme.” But in fact, as the CAMERA study points out, Arabs who lost property also are entitled to seek compensation from the Israeli authorities, and have extensively done so over the years – to include more than 10,000,000 sheckels paid out, and over 54,000 dunums of Israeli land awarded to claimants.
The Amnesty Report nonetheless does identify one legal difference between Palestinian Arab citizens and other Israeli citizens, namely, the latter are mandatorily conscripted to serve in the Israel Defense Forces (including Israel’s Druze and Circassian minorities), whereas Palestinian Arab citizens are invited and welcome to serve, but are not required to do so. This difference, far from seeking to harm Palestinian Arab Israelis, involves a recognition and sensitivity to the reality that many of the latter have conflicting views about Israel and service in its armed forces – although some do in fact volunteer and serve.

But the Amnesty report appears to twist this effort at intercommunal sensitivity into yet more evidence of Israeli perfidy, stating that “the exemption of Palestinian citizens of Israel from military service has resulted in their discriminatory exclusion from substantial economic benefits and opportunities guaranteed under Israeli law to those who have completed military service.” In other words: Heads, Israel abuses Palestinians; Tails, Israel still abuses Palestinians.

As regards Israel’s relations with the Palestinian territories of the West Bank and Gaza, again the apartheid charge melts under the glare of factual scrutiny.

The Amnesty Report focuses on the fact that in 1947-48, over 600,000 Palestinian Arabs fled the land designated for the Jewish state by the United Nations. Amnesty then claims that both those refugees and all of their descendants have a ‘right to return’ to Israel, and that Israel’s refusal to allow their return is a central component of its “apartheid” regime.

This “right of return” accusation both is contrary to international law, and omits the critically important explanatory factual context. The Amnesty Report bases its right of return accusation on UN General Assembly Resolution 194. There are at least three problems with Amnesty’s analysis.

First, Resolution 194 refers only to efforts to resettle “refugees” – not the descendants of refugees – consistent with the treatment of all other post-World War II refugee populations, namely, refugee status is not heritable by any subsequent generation. By that definition, as of 2018 there remained approximately 30,000 Palestinian refugees – not the 5.2 million claimed by the United Nations Relief and Works Agency (UNRWA). However, in the years since 1948, UNRWA unilaterally changed its definition of Palestinian “refugee” to include all descendants – in stark contrast to international law.

Second, even by the terms of UN Resolution 194, the alleged millions of Palestinian refugees do not and could not qualify for “return.” Paragraph 11 of the non-binding Resolution 194 limited its refugee resettlement recommendation to “refugees wishing to return to their homes and live at peace with their neighbours . . .” To this day, both the Palestinian Authority and UNRWA – the UN’s Palestinian refugee agency – relentlessly indoctrinate the so-called Palestinian refugee population in militant, genocidal hatred of Israel, and incites them to become suicide bombers. Five million such indoctrinees would hardly be disposed to “live at peace” with their prospective Jewish-Israeli neighbors.

Third, in 1948 all the Arab states rejected resolution 194 – and when under the auspices of Resolution 194, the United Nations established a Conciliation Commission to begin to address the refugee problem, the Arabs refused to participate, as that would have required meeting with Israelis. In legal terms, the Arabs and Palestinians’ unequivocal rejection of this non-binding, advisory resolution, and of the processes initiated to implement it, thoroughly undermines (in legal terms, “estops”) their effort to claim its benefits seven decades later.

More generally, the Amnesty Report appears to deliberately omit to mention the critically important context that gave rise to the Palestinian refugee problem, and that resulted in decades of Palestinian statelessness. Had the Report honestly done so, it would have undermined its entire narrative, because the context reveals that responsibility for both problems lies not with Israel, but with the Palestinian leadership.

This is the context that the Amnesty Report apparently chose to ignore:

When the UN in 1947 voted to divide Palestine into a Jewish and an Arab state, the Jewish leadership embraced the resolution and invited their Palestinian Arab residents to remain, with equal rights guaranteed. But the Palestinian Arab leadership denounced the resolution and launched a civil war against Palestine’s Jews – prior to and in coordination with the invasion of Israel by five Arab armies. That Palestinian-instigated war – and not some “ethnic cleansing” scheme by Israel – is what caused the flight of over 600,000 Palestinian Arabs from the Israeli side of the proposed two-state border – along with the expulsion of over 800,000 Jews from Arab countries.

In subsequent decades, the Palestine Arab leadership has continued to call for the annihilation of Israel, to indoctrinate their people in genocidal Jew-hatred, and to launch terror attacks against the Jewish state. Despite this, Israel since 1947 has initiated or endorsed at least five proposals intended to bring about a Palestinian state alongside Israel, all rejected by the Palestinian Arab leadership: after the 1967 war to annihilate Israel (rejected by the Arab League with the famous “three No’s”); the 1993 Oslo Accords (sabotaged by a Palestinian terror war); the 2000 Camp David peace plan (rejected by Yasir Arafat); the 2001 revised peace plan (similarly rejected); and the 2007 Ehud Olmert peace plan (again rejected).

The tragic truth of the situation is this: The Palestinian leadership have been the authors of their people’s displacement and statelessness. And this profound moral failure stands in stark contrast to Israel’s great many efforts, involving significant geopolitical risks, in order to bring about a sustainable peace of “two states for two peoples.”

Rather than address the real sources of the Palestinian people’s suffering, Amnesty International chose the false and politically easy path of blaming Israel. This failed course of action both feeds the disturbing global surge of anti-Semitism, while leaving the Palestinians no closer to the life they deserve, flourishing and at peace with their Israeli neighbors.

As for the apartheid charge, the great Palestinian peace activist and founder of the Palestinian Human Rights Monitoring Group Bassam Eid said it best on the eve of the Amnesty Report’s release: “I am here to set the record straight: Israel is not an apartheid state!” Indeed.

Henry Kopel, Author and former federal prosecutor in Connecticut with over 30 years’ experience investigating and prosecuting national security matters, domestic terrorism, violent crimes, narcotics trafficking, and white-collar crime. Kopel is the author of the new book War on Hate: How to Stop Genocide, Fight Terrorism, and Defend Freedom, as well as “The Case for Sanctioning State Sponsors of Genocide Incitement” in the Cornell International Law Journal. He also has published several op-ed commentaries on Middle East issues. Kopel is a graduate of Brandeis University, Oxford University, and the University of Pennsylvania Law School. He has served as a teaching assistant in the government department at Harvard College, and lectured on prosecuting hate crimes at the University of Connecticut Law School.