On September 14, the UK Lawyers For Israel (UKLFI) Charitable Trust hosted a webinar titled “The Accusation of Israel as an Apartheid State,” featuring a presentation by Arizona State University Law Professor Orde Kittrie on the mandate of the new United Nations Commission of Inquiry (COI) created by the UN Human Rights Council (UNHRC). Among other things, Professor Kittrie explained how the UNHRC and Humans Rights Watch (HRW) err in defining apartheid and how, under any definition, Israel’s actions cannot be characterized as apartheid. In May 2021, UNHRC established the new COI, which is poised to designate Israel as an apartheid state and pressure the International Criminal Court (ICC) to prosecute Israel for this crime. As Professor Kittrie pointed out, the scope of the COI, which is charged with investigating Violations in the Occupied Territory, including East Jerusalem, and in Israel is much broader than that of any previous commission on similar issues, and is therefore likely to be more dangerous. The COI will publish its first annual report in June 2022. International law recognizes two definitions of apartheid, one contained in the International Convention on the Suppression and Punishment of the Crime of Apartheid (the “Anti-Apartheid Treaty”) and the other in the ICC Rome Statute. Both define apartheid as “inhuman acts” and “systematic oppression and domination” committed “by one racial group” against “any other racial group” (emphasis added). Race thus is key. The definition of apartheid is so specific that, aside from South Africa, no other country has ever merited the designation. As Professor Kittrie explained, apartheid is irrelevant to the Israel-Palestine conflict because neither Jews nor Arabs are racial groups. There are Jews and Arabs of every race both inside and outside of Israel. Indeed, influential organizations like the International Committee of Red Cross have dismissed the notion that “apartheid” plays a role in the Israel-Palestine conflict for this very reason. Drawing on the work of HRW, however, the COI seeks to redefine the term “apartheid” to mean systematic discrimination based not only on race, but also on nationality, ethnic origin, or gender. This new definition is designed to change international law so that the COI can target Israel. Notably, HRW and UNHRC have not applied this definition to any other actors who may merit such consideration. As Professor Kitire further explained, Israel’s conduct cannot be characterized as “apartheid” even under HRW’s expanded definition. Israeli Arabs have more political liberties than many other Arab-majority countries as is evidenced by the high number of Israeli Arabs who are members of various professions and political positions of power in Israel. The COI can be expected to demonize the State of Israel in an attempt to ostracize it within the community of nations and ultimately to “asphyxiate” it. Professor Kittrie urged allies of Israel to mount a substantive counter to the apartheid charge and to reject HRW’s illegitimate and legally unsound definition of apartheid. In addition, Professor Kittrie urged the international community to work to counter the massive political pressure on UNHRC to target Israel. A recording of the webinar can be viewed here.
Courtesy of Wikimedia Commons Advocacy group UK Lawyers for Israel (UKLFI) has successfully forced Kuwait Airways to “pay substantial damages plus costs to an Israeli National who was refused a ticket on a Kuwait Airways flight from London to Bangkok on the grounds of her nationality.” Last November, Mandy Blumenthal, who holds Israeli and UK citizenship, attempted to buy a ticket at Heathrow Airport, but the Kuwait Airways ticket counter denied her request, saying, “Israeli passport holders are not permitted to travel on Kuwait Airways.” UKLFI helped Blumenthal sue the airline after the incident, which was caught on video. Kuwaiti law prohibits the airline from engaging in any commercial transactions with “entities or persons residing in Israel, or with Israeli citizenship.” The Lawfare Project has also brought attention to this discriminatory practice, bringing legal actions against the airline in multiple countries. In 2015, US Department of Transportation demanded that it stop barring Israelis from their flights. Instead of allowing Israeli citizens on their planes, the airline terminated their New York-London route. In 2016, the airline canceled their intra-European flights after the Lawfare Project took them to court in Switzerland. Their lawsuit in Germany was unfortunately not successful, as the court ruled that the airline had a right to bar Israelis from their flights, as it was “not reasonable” to demand that they violate Kuwaiti law. An appeal hearing is scheduled to take place in September. According to British law, it is unlawful to refuse a public service to an individual because of their nationality. Blumenthal found it unacceptable that she was denied service while on UK soil. Attorney David Berens said, “The law is clear: direct discrimination on grounds of nationality in the provision of a service to the public is illegal. Ms. Blumenthal has done a service in showing up Kuwait Airways’ illegal policy. Kuwait Airways is now legally obliged to end this policy or end its services from the UK altogether.” While Kuwait Airways has agreed to pay Blumenthal, they have not admitted liability. Blumenthal said, “It is horrible to be singled out, to be told you are not allowed to do something because of who you are. Having someone telling me that he is following instructions, that it is a rule, a policy gave me a sinking feeling inside. In my mind it is an antisemitic policy to single out the only Jewish State to boycott.”
A United Kingdom (UK) government investigation has allowed a complaint to proceed that alleges top accounting firm PricewaterhouseCoopers (PwC) ignored payments to terrorists when it audited the Palestinian Authority (PA). Major donors, like the United States, United Kingdom, and World Bank, rely on such audits to ensure millions of taxpayer dollars are not diverted to fund terrorism and other human rights abuses abroad. The UK government decision follows an eighteen-month investigation responding to a December 2016 complaint filed by UK Lawyers for Israel (UKLFI) with the UK National Contact Point for the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises. The OECD Guidelines for Multinational Enterprises (the Guidelines), first adopted in 1976, set principles for responsible business, including standards for human rights and bribery prevention. All forty-seven adhering countries are required to maintain a complaint mechanism, known as the National Contact Point (NCP), allowing for third-parties to allege Guideline violations by companies headquartered domestically. UKLFI filed the complaint against PwC with the UK’s NCP, which is a part of the UK’s Department of International Trade. UKLFI is a nonprofit formed in 2011 that employs advocacy, legal research, and campaigning to support Israel. Several years ago, UKLFI became concerned about the “Amended Palestinian Prisoners Law No. 19 (2004),” which it claims not only authorizes the PA to pay the salaries of terrorists in Israeli prisons, “but [holds] that the more serious the crime, the greater the rewards for the prisoners while serving their sentence and on their release.” Knowing that the PA receives aid from nations and international organizations around the world, UKLFI worried that taxpayer dollars meant to improve the Palestinians quality of life, were actually funding violence. Per the UK Minister of State for International Development, UK’s aid to the Palestinians “is subject to annual, independent financial audit.” UKLFI wanted to verify that these audits were comprehensive, accurate, and demonstrated that the PA was not misusing donations from the global community. Thus, the UKLFI reached out to PA donors and received “a letter of confirmation from a donor client that PwC had a role in managing and auditing PA’s accounts.” Further, “UKLFI also obtained evidence from several sources in the public domain which established PwC’s historical work with the PA.” However, when UKLFI approached PwC for access to files related to their audits of the PA, PwC declined, “citing concerns over issues of client confidentiality.” Without any further recourse, UKLFI filed its complaint with UK’s NCP stating, “Because of the unwillingness of PwC to subject its audit reports to public scrutiny, it is unclear whether the funds from donors who rely on PWC’s guidance are directly funding the incitement of terrorism, or whether such funds, given uncritically, are liberating other resources that the PA can devote to the incitement of terrorism.” UKLFI further alleged that by “failing to raise concerns about PA spending aid money on salaries for terrorists and on glorifying terrorism,” PwC breached Chapter II, III, and IV of the Guidelines. UKLFI asserted these violations infringed the human rights of victims of terror attacks, Palestinian citizens, and taxpayers in donor countries to the PA. In response, PwC claimed it was not required to examine potential payments to terrorists because it was outside the scope of its agreement with the PA. The NCP dismissed this argument, noting its “implication that PwC should not be held accountable to a standard that it was not aware of. However, the Guidelines exist to promote an overall standard of good practice.” While the NCP investigation does not reach any final conclusions as to whether PwC acted inconsistently with the Guidelines, international human rights lawyer Jacob Turner, co-author of the complaint and former lecturer at Oxford University, asserted the mere ruling that the allegations are material and could be substantiated “shows auditors…can’t just turn a blind eye to human rights abuses being committed by or facilitated by the entities which they are auditing.” The UK NCP will ask UKLFI and PwC if they are willing to engage in facilitated mediation to resolve UKLFI’s concerns. While UKLFI has publicly expressed willingness to participate in mediation, PwC has not indicated whether it intends to participate. If mediation is successful, the UK NCP will issue a Final Statement without determining whether PwC breached the Guidelines. If mediation does not occur or fails to resolve UKLFI’s grievances, the UK NCP will conduct a separate examination and issue a Final Statement as to whether PwC acted inconsistently with the Guidelines. As the Guidelines are technically non-binding, there is no formal penalty associated with the finding of a breach. Nevertheless, the NCP can recommend actions to the breaching company and the public relations effect of an alleged Guideline breach is often enough to force a company to change its behavior—as seen in 2014, when a mining company, after facing an NCP complaint, abandoned a project in the Congo which threatened a World Heritage Site.