Shrinking Spaces in Israel. Contraction of Democratic Space, Consolidation of Occupation, and Ongoing Human Rights Violations Ca

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Shrinking spaces in Israel: contraction of democratic space, consolidation of occupation, and ongoing human rights violations call for a pradigm shift in Europe's policies Asseburg, Muriel

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Empfohlene Zitierung / Suggested Citation: Asseburg, M. (2017). Shrinking spaces in Israel: contraction of democratic space, consolidation of occupation, and ongoing human rights violations call for a pradigm shift in Europe's policies. (SWP Comment, 36/2017). Berlin: Stiftung Wissenschaft und Politik -SWP- Deutsches Institut für Internationale Politik und Sicherheit. https://nbn-resolving.org/ urn:nbn:de:0168-ssoar-54348-3

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Introduction

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs Comments

Shrinking Spaces in Israel WP Contraction of Democratic Space, Consolidation of Occupation, and Ongoing Human

Rights Violations Call for a Paradigm Shift in Europe’s Policies S Muriel Asseburg

Israel has always claimed to be the only democracy in the Middle East. Yet the current government coalition is dominated by right-wing, ultra-Orthodox and national-religious parties advocating illiberal policies and seeking Jewish dominance across “Eretz Israel” – Israel itself and the occupied Palestinian territories. Accordingly, the government is working firstly to emphasise the Jewish elements in Israel’s identity. It is secondly pushing ahead with settlement-building in and de facto annexation of parts of the occupied territories. Thirdly, it is steadily shrinking the spaces for Israel’s civil society and human rights organisations. Germany and the EU should press Israel to comply with international law, improve the human rights situation and preserve spaces for civil society to thrive. In their policies, working towards respect for human rights and international law should no longer come second to conflict resolution.

Israel attaches great importance to being non-governmental organisations that re- regarded as the only democracy in the ceive more than half of their funding from Middle East and the West’s partner of choice. foreign state entities to report the origins It does truly stand out from other countries of their grants and publicise the fact in in the region, offering its citizens regular various specified contexts. The legislation free and fair elections, an effective division primarily targets organisations that criti- of powers, and functioning checks and bal- cise the Israeli government’s occupation ances. In recent years, however, the scope for policies, argue for equality for Israel’s non- civil society actors has shrunk considerably. Jewish citizens, and defend human rights, Individuals and institutions who express including those of refugees. The Justice critical positions on Israel’s policies in the Ministry published a list of 27 NGOs that occupied territories, human rights violations, receive more than 50 percent of their and the country’s identity are especially af- funding from foreign state entities. Right- fected by repressive legislation and massive leaning NGOs, think tanks, and media defamation and intimidation campaigns. outlets as well as settler organisations, etc. In July 2016 the Knesset passed the so- are funded almost entirely through private called NGO Transparency Law requiring donations and as such unaffected by the

Dr. Muriel Asseburg is a Senior Fellow in SWP’s Middle East and Africa Division SWP Comments 36 September 2017

1 law’s provisions. Even though the legisla- for withdrawal of public funding from any tion itself does not directly restrict freedom organisation that concurs with the Palestin- of expression and assembly, the debate ac- ian narrative that Israel’s struggle for in- companying the legislative process made it dependence was responsible for the forcible very clear that it is designed to stigmatise displacement of Palestinians, or partici- particular NGOs as agents of foreign inter- pates in associated commemorations. The ests. Expulsion Law of July 2016 enables depu- The efforts to clamp down on critical ties accused of incitement, racism or sup- voices in Israel continue. Various draft bills port of armed struggle against the state to currently before the Knesset would further be excluded from parliament by a qualified tighten the constraints on NGOs. Measures majority, while the Anti-BDS Law of March under consideration include charging 2017 allows individuals who advocate a the relevant NGOs for public information boycott of Israel or its settlements to be pre- requests, banning particular organisations, vented from entering the country. Already requiring the NGOs to be labelled as “for- in March 2014, before the last general elec- eign agents”, and taxing funding from tion, the threshold for entry to the Knesset foreign state entities. In June 2017 Prime was raised from 2 to 3.25 percent to exclude Minister Benjamin Netanyahu announced those parties representing overwhelmingly a draft bill that would prohibit Israeli Arab citizens. The manoeuvre failed after NGOs from accepting any funding at all Hadash, Raam, Balad and Taal joined to from foreign state entities. form a single list. Above all, aggressive campaigns against human rights organisations have proliferated in recent years. Right-leaning politi- Discrimination cians, think tanks and NGOs (such as NGO Israel’s self-image as a “Jewish and demo- Monitor and Im Tirtzu), as well as media cratic state” has always been characterised close to the prime minister, have branded by internal tensions, manifested above all such NGOs traitors, terrorist collaborators, in discrimination against non-Jewish sec- and foreign agents, and their staff have tions of the population. In 2003, in response been threatened, in some cases massively. to demographic trends, Israel banned immi- Such attacks have concentrated especially gration and naturalisation of Palestinian on those that cooperate with United Nations spouses and family members from the occu- and International Criminal Court investiga- pied Palestinian territories and so-called tions into human rights violations and war enemy states on principle. While the gov- crimes. It is above all these campaigns that ernment and the high court (which con- are the most important impediment to the firmed the law in 2006 and 2012) justify activities of Israeli civil society, peace move- this discrimination on the basis of security ment and human rights defenders, as they concerns, this problematic argument places are seriously delegitimising their work in all Palestinians under blanket suspicion. the Israeli public sphere and burdening them Non-Jews are disadvantaged in property with the costs of personal and IT security, matters too, with the Jewish National Fund legal response and defensive PR. (JNF), which owns about 13 percent of the The measures described above must be land in Israel, leasing exclusively to Jews. seen in connection with other laws and The JNF also holds great sway over the initiatives that also aim at silencing critical decisions of the Israel Land Authority (ILA), voices in Israeli public life – voices that chal- which controls the state-owned land. Al- lenge the official self-image of the Jewish together about 93 percent of the land is state and the dominant interpretation of publicly owned – including a considerable its history. These measures include the proportion expropriated from Palestinians. Nakba Law of March 2011, which provides In many towns and communities local

SWP Comments 36 September 2017

2 selection committees ensure that property 2017 the Knesset passed the first reading is only leased or rented to those regarded as of a Likud bill proposing a Basic Law that “suitable”. Municipality-level budget data defines Israel as the “nation state of the also reveals that the government privileges Jewish people” where the “right to national the development of Jewish communities, self-determination” applies exclusively to for example by classifying them as National Jews and Arabic is demoted from an official Priority Areas. Arab communities are sys- language to one with “special status”. tematically disadvantaged in terms of budget funding and housing development. The treatment of the Arab Bedouins in the Prolonged occupation Negev Desert is especially problematic. While the non-Jewish citizens of Israel – even Most of them live in unrecognised towns if they experience discrimination – possess or villages that receive no or few public full political rights, Palestinians in the occu- services and are frequently threatened or pied Palestinian territories see their human affected by housing demolition and forcible rights regularly violated under the military displacement. occupation regime. After half a century, the The attitudes of the Jewish majority to- occupation can no longer be regarded as wards the Arab Palestinian minority who temporary and justified by military neces- make up around one-fifth of the Israeli sity in the sense of the Geneva Conventions. population have hardened over recent Evidence includes the de jure annexation years, as the Israeli-Palestinian conflict of East Jerusalem and the systematic appro- drags on. Many Jewish Israelis regard priation of parts of the West Bank through Israel’s Palestinians as a “fifth column” settlement-building, spatial planning and on account of their identity and their rela- resource use. Rather it has become obvious tionships with Palestinians in the occupied that successive Israeli governments have in territories and the rest of the Arab world. fact been working to permanently change According to the Israeli Democracy Index 2016, the status of the occupied Palestinian terri- 46 percent of Jewish Israelis believe that tories through means including a continu- Israeli Arabs want the destruction of the ous transfer of Jewish citizens. There is thus state of Israel; 43 percent regard them as a growing sense that the prolonged occupa- a security risk. As a consequence, parts of tion itself violates international law – quite the Jewish majority feel it is increasingly aside from the settlement policy, resource acceptable to restrict the civil and political exploitation and other Israeli actions in the rights of Israeli Arabs. Although 70 percent occupied territories. of Jewish Israelis believe that Arab citizens Since May 2015, when Netanyahu’s fourth should share the same rights in principle, government was sworn in, the intensity of 59 percent oppose allowing Arab parties to Israeli settlement-building and destruction join the government. More than 52 percent of Palestinian homes and infrastructure (for in the survey said that anyone who refused lack of construction permits or as collective to recognise Israel as the nation state of the punishment) has been strongly stepped up Jewish people should lose the right to vote. in strategically important areas of the West A survey of Israeli youth by the German Bank. A June 2017 report by the research Friedrich-Ebert-Stiftung, published in Israel services of the German Bundestag calls the in April 2017, found that 39 percent of Israeli actions in the occupied territories young Israeli Jews believe that Arab citizens “acts of displacement” because they aim should be denied the right to vote; only “deliberately and systematically” to create 35 percent support full political equality. an “inhospitable and forbidding environ- The current Israeli government is work- ment hostile to development” for the Pales- ing to strengthen the specifically Jewish tinian population. The UN and the EU fear dimension of the country’s identity. In May that the Israeli authorities’ measures in the

SWP Comments 36 September 2017

3 areas around Jerusalem (for example Zone thus violates various economic rights of the E1), the South Hebron Hills and the Jordan Palestinian population, not least the right Valley could even lead to forced displace- to freedom of movement. Freedom of movement of the local population. ment is further hindered by the blockade In February 2017 the Knesset opened the of the Gaza Strip and the permit system for way for further de facto annexation of parts travel to East Jerusalem. of the West Bank with the Law for the Regu- Israel also retains the final say on all lation of Settlement in Judea and Samaria significant decisions concerning spatial (Regulation Law). It paves the way to legalise planning and resource use in most of the settlement outposts, which had previously West Bank – the so-called Area C which been illegal even under Israeli law. It pro- accounts for about 60 percent of its extent vides for the expropriation of privately (see also SWP Comment 24/2016). Here owned Palestinian land on which outposts Israel regularly makes decisions not in the stand and expands Israeli law to parts of interest of the Palestinian population – the West Bank. However, in August 2017 which would be its duty as occupying power the Regulation Law was blocked by Israel’s – but favours its own population, including high court. In March 2017 – for the first the settlers. The Palestinians are also denied time since 1992 – the Israeli cabinet ap- access to the gas reserves off the coast of Gaza. proved the construction of an entirely new An October 2013 World Bank study describes settlement north of Jerusalem. Finally, in in detail how the development of the Pales- July 2017 Prime Minister Netanyahu gave tinian territories is obstructed by Israeli his blessing to a draft bill to expand Jeru- travel restrictions and other obstacles to salem’s administrative boundaries to in- resource utilisation and quantifies the boost corporate settlements surrounding the to the growth of the Palestinian economy – city housing about 150,000 settlers (Gush more than 20 percent – that could be ex- Etzion, Efrat, Betar Illit, Givat Ze’ev and pected if the restrictions were lifted. Ma’aleh Adumim). This would represent a In addition, the lives of the Palestinian de jure annexation of territory. population in the occupied territories (un- like those of the Israeli settlers) are regulated by military decrees. Palestinian political Grave human rights violations activities are criminalised by the occupying Through its occupation-related policies, power; the freedoms of assembly and organi- Israel violates the fundamental civil, politi- sation are restricted. When settlers attack cal and economic rights of the Palestinian Palestinians or Palestinian property the population in the occupied territories. Israeli army often fails to intervene or the While it generally justifies these violations perpetrators go unpunished – as docu- in terms of the security of Israel and its mented for example by the Israeli human citizens, they often stem in fact from a rights organisation B’Tselem. And dispro- drive to preserve the occupation regime portionate force is frequently used against and appropriate land and resources. suspected terrorists and criminals and in A July 2004 advisory opinion of the Inter- clashes with demonstrators, leaving Pales- national Court of Justice thus regards the tinian civilians dead or seriously injured. separation barrier built by Israel since 2002 Palestinians in the occupied territories who as contravening international law, because are accused of acts of violence stand little it stands largely within Palestinian terri- chance of seeing their rights respected in tory, violates the right to self-determination the Israeli military courts; conversely, Pales- of the Palestinians, appears to be intended tinian victims of violence rarely see Israeli to be permanent, and could as such serve a perpetrators brought to justice. de facto annexation of territory. In conjunc- Conditions for Palestinian prisoners tion with the settlement policy, the barrier from the occupied territories fall short of

SWP Comments 36 September 2017

4 international standards. Alongside the mer 2005, it continues to control Gaza’s large number of detainees, problematic land borders (with the exception since 2007 issues include the routine transfer of pris- of the border with Egypt), its sea borders, its oners to facilities outside the occupied territorial waters, its airspace and its elec- territories (in contravention of internation- tromagnetic spectrum (including its cell- al law), the systematic use of administrative phone network). Additionally, the Israeli detention (without indictment or trial, with blockade – which was tightened in summer a six-month limit but indefinitely extend- 2006 following the kidnapping of the Israeli able), and the prevalence of torture and soldier Gilad Shalit and again in summer abuse during detention and interrogation. 2007 after Hamas violently seized power – In fact Israeli law forbids the use of “physi- massively restricts the freedom of move- cal pressure” except in cases of imminent ment of Gaza’s approximately 1.9 million danger. However according to Amnesty residents in a manner tantamount to col- International more than one thousand lective punishment illegal under inter- official complaints of torture were lodged national law. And since the 2013 coup that between 2001 and 2016. In none of these brought General Abdel Fattah al-Sisi to power cases, Amnesty notes, was a judicial inves- in Cairo, the border crossing to Egypt has tigation initiated. been all but closed. Making matters worse, Israel heavily Sweeping import restrictions have pre- restricts access for Palestinian, Israeli and vented comprehensive reconstruction of international human rights representa- the damage caused by the 2014 fighting. tives, especially in the Gaza Strip. This The greatest impediment to rebuilding is makes it impossible to conduct independ- Israel’s classification of construction ma- ent investigations into human rights vio- terials and spare parts as dual-use goods lations committed by the de-facto Hamas whose import is regulated very tightly – government and armed groups, nor into even within the Gaza Reconstruction Mecha- the grave war crimes of which militant nism (GRM) established in September 2014. Palestinian groups, the military wing of Cooperation with the GRM is problematic Hamas and Israel have been accused during on principle insofar as it implicitly legiti- the fighting in 2014. To date neither Israel mises the blockade. The international com- (with a few exceptions) nor Hamas have munity (represented by the United Nations conducted any serious investigations into Special Coordinator for the Middle East war crimes. This raises doubts whether the Peace Process, UNSCO) assumes a role in authorities are willing and able to conduct implementing the blockade, rather than credible investigations into war crimes. The concentrating on the needs of the popula- answer to that question will be crucial in tion in the Gaza Strip and demanding the the International Criminal Court’s delibera- occupying power fulfil its duty to their tions on whether to open an investigation. well-being. Since January 2015 it has been conducting Although UNSCO reported in May 2017 a preliminary examination into war crimes that the reconstruction of public buildings on both sides and the breaches of law re- and infrastructure has been largely com- lated to settlement and occupation policies pleted – with the important exception of in the West Bank and East Jerusalem. the fuel storage tanks at Gaza’s only power station – there are still about 40,000 inter- nally displaced persons whose homes were Gaza crisis comes to a head destroyed or badly damaged in 2014. Even Despite Israeli assertions to the contrary, today, less than 60 percent of damaged pri- the Gaza Strip remains under occupation. vate homes have been reconstructed. Although Israel evacuated all its settle- At the same time, the UNSCO report ments and military facilities in late sum- stresses that physical reconstruction has

SWP Comments 36 September 2017

5 not led to a recovery of public services (still Policy options for Germany and the EU less to any improvement). Instead “de-devel- The narrowing of space for critical voices in opment” and environmental degradation Israel has been accompanied by a worsening have proliferated, increasing dependency of discrimination against the non-Jewish on foreign aid. Economic upturn is not on population and an entrenchment of the oc- the cards, because Israel’s restrictive line on cupation of the Palestinian territories. The export permits and access to agricultural international community bears a portion of land and fishing grounds leaves the local blame in these developments, above all for economy no chance to grow. About one- pursuing an approach to Israel (and the third of Gaza’s agricultural land lies within other parties to the conflict) that has priori- the Israeli-imposed buffer zone and is there- tised the search for a negotiated settlement fore off-limits for farming. The fishing range, over insistence on human rights and inter- which the Oslo Agreements defined as national law. The failure to punish human twenty nautical miles from the coast, has rights violations and breaches of interna- been restricted to just between three and tional law by Israel, the PA and Hamas or six nautical miles since 2006. Only occasion- to prosecute suspected war crimes is tanta- ally does Israel grant nine nautical miles. mount to inviting the conflict parties to con- The upshot of all these factors is what tinue to break the law. Instead of creating has become a dramatic escalation of the the basis for peaceful coexistence, this humanitarian situation in the Gaza Strip: deepens the rifts within and between the according to UNSCO unemployment is societies. In any case all states and inter- around 40 percent, and 60 percent among national actors are legally obligated to deny 20–24-year-olds. About two-thirds of the recognition to internationally unlawful population are reliant on humanitarian acts and to work for compliance with inter- aid. In summer 2017 electricity was avail- national law. able for only four hours a day on average, Accordingly the foremost political objec- with grave repercussions in areas such as tives for Germany and the EU should be to healthcare and water supplies. The dis- see international law respected, the human charge of untreated sewage causes massive rights situation in Israel and the Palestini- contamination of the coastal waters. If the an territories improved and spaces for the problems of resource depletion and envi- articulation of civil society’s criticism and ronmental destruction are not addressed political opposition preserved. Fulfilling quickly, the UN believes that Gaza will be those demands would in no way distract uninhabitable within just a few years. from a negotiated settlement: in fact they The internal Palestinian power struggle would be preconditions for it to be sustain- also bears a degree of responsibility for able. Gaza’s plight. For example, Israel further Upgrade of relations only if progress restricted electricity supplies in June 2017 is made: Respect for human rights and at the request of the Palestinian Authority democratic principles is an essential ele- (PA), which reduced its respective payments. ment of the June 2000 Association Agree- Other measures taken by the PA since ment between the EU and Israel (Article 2). spring 2017 also seek to exert pressure on This offers the EU and its member states an Hamas, whereas the brunt of their effects is opening to make discriminatory legislation borne by Gaza’s population. Otherwise the and the narrowing of space for Israel’s civil competing governments in Ramallah and society into central issues in their political Gaza City have both increasingly clamped dialogue with the Israeli government. An up- down on political freedoms and in the pro- grade of the relationship, as agreed in prin- cess committed gross human rights viola- ciple in 2008, should be made conditional tions. They can no longer be described as on tangible progress in the areas of democ- democratic regimes. racy, human rights and international law.

SWP Comments 36 September 2017

6 The EU and its member states should also Gaza and the acute danger of renewed vio- cease undermining such a conditionality lence, Germany and its EU partners should through a de facto deepening of coopera- not abandon conflict management to the tion. regional actors once more. Instead, beyond Support for civil society, human rights alleviating the current crisis, they should advocates and investigators: Germany and press for an end to the blockade. This will its partners in the EU should insist that require a paradigm shift. It will not be Israel grant access to human rights organi- enough to make the GRM less susceptible sations and UN special rapporteurs and to corruption. Instead the rights of Gaza’s investigators to conduct in situ investiga- population to protection and development tions without hindrance, and that Israelis must be given priority over the security and Palestinians who cooperate with such interests of the occupying power. In addi- investigations suffer no negative conse- tion to the negotiation of a long-term cease- quences. Given the deteriorating climate, fire, an arrangement that allows for move-

Germany and its European partners should ment of persons and goods and serves the © Stiftung Wissenschaft und offer consistent diplomatic and financial needs of the population must be found if Politik, 2017 support to those defending human rights the situation in the Gaza Strip is to be last- All rights reserved in Israel and the Palestinian territories. ingly improved. Gazans must also be granted These Comments reflect Consistent differentiation: In line with unrestricted access to Gaza’s agricultural the author’s views. Security Council Resolution 2334 of Decem- land and coastal waters. This will mean SWP ber 2016, the EU and its member states pressing the occupying power to fulfil its Stiftung Wissenschaft und Politik need to distinguish more consistently than responsibilities, committing the PA to pur- German Institute for to date between their dealings with Israel sue constructive policies towards Gaza, and International and Security Affairs and with the settlements in the occupied involving the de facto government in con- territories. Concretely this would mean crete arrangements. Ludwigkirchplatz 34 banning imports of settlement products 10719 Berlin Telephone +49 30 880 07-0 (rather than merely labelling them), moni- Fax +49 30 880 07-100 toring the implementation of differentia- www.swp-berlin.org [email protected] tion measures, and preparing a code of conduct for European businesses that also ISSN 1861-1761 tackles investments and ventures indirectly Translation by Meredith Dale linked to settlement activities. (English version of In connection with development projects SWP-Aktuell 61/2017) in Area C of the West Bank, Germany and its partners in the EU should rethink their cooperation with the Israeli Civil Adminis- tration, which lends legitimacy to Israel’s permit system for Palestinian construction projects, ongoing restrictions on Palestin- ian rights and the occupation regime as such. In addition to consistent differentiation, EU member states should also urgently dis- cuss which positive and negative incentives are required and appropriate in order to in- fluence the cost/benefit calculations of the Israeli government and counteract the main- tenance and entrenchment of the occupation. A new paradigm for Gaza: Given the escalation of the humanitarian situation in

SWP Comments 36 September 2017