Israel’s Brazen Attack on Al-Haq – Troubled from Apartheid Charges, Armed with Terrorism Designations and Blessed by U.S. Silence

[Ahmed Abofoul is a Legal Researcher at Al-Haq’s International Legal Research and Advocacy Department.]

Introduction

On 19 October 2021, the Israeli Defense Ministry, Benny Gantz, designated six Palestinian human rights and civil society organizations (CSOs) as “terrorist organizations,” under Israel’s domestic Counter-Terrorism Law of 2016. On 7 November 2021, it was reported that the Israeli army had issued a military order extending the application of Gantz’s designation to the occupied West Bank. One of these organizations is Al-Haq, with which the author is proudly associated. Established in 1979, not only was Al-Haq the first Palestinian independent non-governmental human rights organization, but also one of the earliest in the region and the world. Al-Haq has a specific mandate to “protect and promote human rights and the rule of law” in the occupied Palestinian territory (oPt). To that end, Al-Haq “documents violations of the individual and collective rights of Palestinians in the [oPt], irrespective of the identity of the perpetrator, and seeks to end such breaches by way of advocacy before national and international mechanisms and by holding the violators accountable.”

On 4 November 2021, a joint investigation from The Intercept and the +972 and Local Call –which got hold of Israel’s “secret dossier” that allegedly contains evidence against Palestinian organizations– showed that it “did not provide a single piece of evidence” for declaring the Palestinian CSOs as “terrorist.” The investigations further showed that Israel had hoped its “secret dossier” would convince European governments to stop funding these organizations. It also showed that European senior officials affirmed that since Gantz’s decision, “Israel has ignored all requests for more information on the matter.” This, in the author’s view, proves the falseness of Israel’s claims appears to be proven beyond any reasonable doubt.

Lieblich and Shinar have already unpacked the legal aspects of the designations and showed that Israel’s Counter-Terrorism Law is “flawed beyond repair.” Further, Shamas from the Center for Constitutional Rights (the CCR) has discussed the downstream effects of these designations on human rights defenders (HRDs) in the U.S., and accurately pointed out that “Israel’s designation [appears to be] primarily intended to trigger the global counterterrorism regime and lend itself to third-party (over)enforcement in pursuit of an agenda to demobilize and repress Palestinian rights advocacy.” 

This post, however, intends to bring a Palestinian perspective to the discussion. It argues that Israel’s step is an attack from an anxious apartheid regime that is willing to do anything to silence those who expose its war crimes and crimes against humanity. Moreover, this article illustrates the multi-level shrinking space that Al-Haq has been facing, and demonstrates the unsustainability of the current situation. It also shows that if the international community allows Israel to maintain such a situation, a very dystopian future is ahead of the human rights movement as a whole. Finally, this article touches upon the efforts needed to compel Israel to reverse its decision, including the significant role of the U.S. and European States.

A Desperate Action of an Anxious Apartheid Regime

Israel’s unjust and alarming attack on Palestinian human rights and CSOs organizations, including Al-Haq, is anything but new. For decades, Israel has employed a wide set of draconian measures to obstruct the invaluable work of Al-Haq, discredit its image, and delegitimize and criminalize its work in the oPt. Evidently, as the European Union (EU) has already noted, such past allegations have not been substantiated. Israel has also used a wide range of intimidation methods, including, inter alia, attempts to dry funding, staff travel bans and arbitrary detention. The latest report of Al-Haq refutes Israel’s accusations and demonstrates that these designations come as part and parcel of the shrinking space that Al-Haq has been facing for decades due to Israel’s systematic harassment campaigns, which represent acts of an illegal apartheid regime. Notably, Article II of the Apartheid Convention provides that the crime of apartheid “shall apply to the… inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: [including] “(f) Persecution of organizations and persons by depriving them of fundamental rights and freedoms, because they oppose apartheid.”

Al-Haq’s report showed that two of its most important work focus areas have sparked the most backlash from Israel’s government and its affiliates: Al-Haq’s business and human rights activities, and its long-lasting constructive engagement with the ICC. Having a closer look at how Israel strategized its most recent attack, Al-Haq’s General Director, Shawan Jabarin’s statement only proves how anxious and desperate Israel is to obliterate the Palestinian CSOs:

The recent allegations against Al-Haq and fellow organizations are a result of the Israeli failure to challenge the work of the organization on the basis of law or evidence, deciding instead to use its political power as an occupying colonial regime with the ability to create the law that serves its illegal interests.

By way of sensing the pulse, Israel declared its designation decision on the afternoon of Friday 22 October 2021, i.e., a few days after it was issued on 19 October 2021. The designation was faced with heavy criticism and condemnation from Palestinian, Israeli, regional and international civil society organizations, as well as United Nations (UN) bodies, EU officials, and States. In spite of the backlash, Israel, as the Occupying Power, decided to issue a separate military order two weeks after the initial designation under its domestic law in order to extend the application of its designation to the oPt, and to completely eliminate these organizations’ legal character. Additionally, on 8 November 2021, a Front Line Defenders forensic investigation found that Israeli compony NSO’s Pegasus Spyware has been used on Palestinian HRDs, including Al-Haq staff, since July 2020. It has been reported that Israel rushed with its designations after it found out that Citizens Lab discovered NSO’s spyware Pegasus on the phones of staff in these organizations.

Since Israel issued its military order transposing its unlawful designations within the occupied West Bank, the imminent and extremely serious implications of these designations to the organizations and their staff have only increased. So this is just the beginning of more brazen actions Israel may further take, if the international community does not act swiftly and conclusively. Plainly, the current reality is that the fate of these organizations and their staff depends profoundly on the international community’s unequivocal condemnations and the concrete actions taken thereafter.

Multi-level Shrinking Space for the Human Rights Movement – A Dystopian Future Ahead

For years, Al-Haq has been facing systematic harassment smear campaigns by Israel through its official governmental bodies, several government-affiliated organizations, lobby groups and individuals. These campaigns aim at delegitimizing “Palestinian dissenting voices, isolating them from the international and regional arenas, and effectively cutting their funding sources.”

On 10 November 2019, Al-Haq submitted with fellow organizations a Joint Parallel Report to the UN Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports. The report concluded that Israel has been systematically silencing opposition to its widespread and systematic human rights violations and apartheid practices as a method to maintain its apartheid regime, and created a climate of fear and intimidation by using arbitrary detention, torture and other ill-treatment, collective punishment, racist hate speech and incitement to racial hatred, as well as smear and delegitimizing campaigns against HRDs “seeking to challenge its prolonged occupation, human rights abuses, and apartheid regime over the Palestinian people.”

Al-Haq has experienced such shrinking space at different levels, including at the international level. In some instances, there were attempts to impose conditions on Al-Haq’s funding. Al-Haq utterly rejected any conditional funding or any form of interference in its work. In other situations, there were attempts to influence Al-Haq’s work, especially, its usage of language and terminology. Al-Haq confronted such attempts, appealed them through the appropriate channels, and affirmed that its professional legal work is in full compliance with international legal standards. While doing so, Al-Haq maintained full and informed constructive engagement with colleagues and partner Palestinian, regional and international CSOs, including the International Federation for Human Rights, International Commission of Jurists, Human Rights Watch, Amnesty International, the CCR and others within the Coalition for the ICC. It is very worrying to conclude that many colleague CSOs around the world have experienced and continue to experience such shrinking space.

For years, Al-Haq has warned that such shrinking space at the international level will not be exclusive to Palestinian CSOs. In fact, if governments – and in this context, occupying powers – will be allowed to intervene, influence and even outlaw CSOs under baseless allegations of terrorism, then we can only expect a very dystopian future ahead of the international human rights movement as a whole.

States’ Failure to Adequately Counter the Seriousness of Israel’s Designations

Bluntly, although the reactions and unequivocal condemnations from Palestinian, Israeli, regional and international organizations were overwhelmingly heart-warming, the official State responses, especially those of the U.S. and EU, are still insufficient to adequately counter the seriousness of Israel’s brazen attack on HRDs. Unequivocal condemnations and concrete actions by States are crucial to compel Israel to reverse its decision. Remaining silent or issuing weak or shy statements without taking solid actions will only reinforce Israel’s decision and any future repressive steps.

At the outset of these designations, U.S. State Department spokesman Ned Price denied that the U.S. was informed of Israel’s decisions and mentioned that the U.S. will ask Israel for clarification. He added that the U.S. “believe[s] respect for human rights, fundamental freedoms and a strong civil society are critically important to responsible and responsive governance.” However, Israel insists that the U.S. was informed of its decision. On 25 October 2021, Price was asked again about Israel’s designations, who in turn refused to provide a clear answer on whether the U.S. was informed by Israel, or most importantly whether the U.S. has taken a position on this designation. As Shamas noted, “[c]onsidering how these same unsubstantiated allegations have functioned in the past, a non-position like the one that Price and the Department of State have thus far taken risks imposing severe consequences on the listed groups and the Palestinian rights community.” 

Notably, it has been reported that an Israeli team tasked with briefing the U.S. Congress on these designations has presented to Congress documents related to an unrelated group. It has also been reported that “the document had already been presented to European diplomats to try to stop them from funding the organizations, but they were not convinced.”

Since assuming office, President Biden’s administration pledged to support HRDs. On 29 April 2021, U.S. President Biden tweeted that the “[U.S.] won’t back away from [its] commitment to human rights and fundamental freedoms.” He added that “[n]o responsible [U.S.] president can remain silent when basic human rights are violated.” The author wishes to echo President Biden’s words right back at him with a question: “why is the U.S. President remaining silent while Palestinian basic human rights are being violated and Palestinian HRDs are being persecuted?”

The same applies to the European States and the EU, unequivocal condemnations and concrete actions must be swiftly and decisively taken to compel Israel to reverse its decision. Regrettably, as asserted by Al-Haq’s General Director, Shawan Jabarin,“[t]he EU is still not standing fully behind its values, its principles and also its partners.”

Remarkably, the EU-Israel Action Plan, as part of the European Neighborhood Policy (ENP), was agreed upon in 2005 and remains in force only until January 2022. The plan covers a timeframe of three years with a set of jointly agreed priorities and actions. According to the European Commission, the plan was based on “shared values of democracy, respect for human rights, the rule of law and fundamental freedoms.” However, unlike other countries’ ENP, “the EU and Israel do not have a human rights subcommittee, but only a subcommittee on political dialogue and cooperation.” In the author’s view, the EU-Israel action plan cannot be renewed in its current form and must be based on Israel’s respect for international law, including international human rights and humanitarian law, as well as its responsibilities as an Occupying Power. The EU must ensure that Israel respects human rights and ends the apartheid regime imposed on the Palestinian people. The EU can, and must, exert political, diplomatic and economic pressure on Israel to end its violations of the Palestinian people’s basic human rights, including the rights of HRDs, starting with their right to challenge Israel’s apartheid and settler-colonial regime without fear of reprisals or collective punishment.

Ultimately, as Van Ho has concluded, Israel’s designations have undermined the entire due diligence system. Further, “[t]here is simply no way for businesses or states to get the comprehensive picture needed for human rights due diligence.” Therefore, it should be very difficult for the EU to keep trading and doing business as usual with Israel while it maintains its apartheid regime, including a discriminatory set of laws, rules and policies. Moreover, it should be very difficult for the EU to do business and trade with Israel while it keeps expanding its colonial settlements enterprise, which constitutes a war crime pursuant to Article 8(2)(b)(viii) of the ICC’s Rome Statute. 

It would be very difficult to imagine the EU maintaining “usual” economic relations with Israel’s apartheid regime, while such relations could invoke the individual criminal responsibility – pursuant to Article 25(3)(c) of the Rome Statute – for individuals who may be considered complicit in aiding, abetting or facilitating the commission of war crimes and crimes against humanity, especially those of apartheid and persecution, against the Palestinian people. The author concludes by reiterating the words of the President of the European Commission, Ursula von der Leyen on 15 September 2021: “[d]oing business around the world, global trade – all that is good and necessary. But this can never be done at the expense of people’s dignity and freedom… Human rights are not for sale.”

Conclusion

For Israel, any action from the Palestinians is an act of terrorism; any form of resistance is terrorism; any diplomatic efforts (such as Palestinian President Mahmoud Abbas’s efforts to obtain full membership at the UN) is “pure diplomatic terrorism” peaceful Boycott, Divestment, Sanctions (BDS) efforts are economic terrorism; legal work and engagement with international mechanisms is legal terrorism; and those who do such work are “Terrorists in Suits.” Perhaps, for Israel, even writing this article or any similar intellectual exercise is intellectual terrorism. Moreover, for Israel, any criticism of its human rights violations is antisemitism. Even calling Israel’s regime by its name and the accurate legal characterization, i.e., “apartheid,” is antisemitic. Likewise, for Israel, the initiation of an investigation by the ICC’s former Prosecutor was “pure antisemitism.” It appears that Israel’s instrumentalization of these accusations aims at re-engineering international public opinion to digest and tolerate its apartheid.

Israel’s allegations are baseless and aimed at silencing and delegitimizing Palestinian voices, isolating them from the international and regional arenas, and effectively cutting their funding sources. Israel’s recourse to such tyrannical measures reflects its failure to conceal its apartheid regime and to substantively challenge the work of Al-Haq and fellow organizations. Thus, taking such extreme repressive measures is, in fact, a testimonial of the effectiveness of these Palestinian organizations’ work, and a demonstration of Israel’s uneasiness with what these organizations, especially Al-Haq, strive for: accountability.

The international community must act swiftly and conclusively to protect HRDs and CSOs in Palestine. States, especially the U.S. and the European States, must utterly and unequivocally condemn Israel’s designation. Further, they must take concrete actions to compel Israel to reverse its decision. These concrete actions could include political, diplomatic and economic pressure. Should the international community fail to pressure Israel to reverse its designations, a very dystopian future awaits the human rights movement as a whole.