Reflections on shrinking space in Israel-Palestine

Sahar Francis, director of Palestinian human rights group Addameer, observed that harassment of civil society organisations and human rights defenders has a long history in the Israeli-Palestinian context – her own organisation, Addameer, had been raided by the Israeli authorities in 2002 and again in 2012 before being designated as a “terrorist organisation” in October 2021. In the oPt specifically, shrinking civic space must be understood as a function and purpose of the legal system enforced by Israel, which has been deployed to stifle political mobilisation against the occupation. Having previously failed to convince especially European donors that the six designated organisations have ties to terrorism, Israel relied on its own civil law and military orders to achieve its intended objective: cutting off their funding. In concluding, Sahar emphasised that this course of action will likely serve as a precedent for attacks against other civil society actors and as such requires immediate and forceful condemnation.

Öykü Irmakkesen addressed the designations from the perspective of international law. She noted that while States are allowed to take counter-terrorism measures, these must be in full compliance with their international obligations. Accordingly, Israel must ensure that the work of human rights organisations is not criminalised or otherwise hindered. Overall, Israel’s designations pursuant to the Counter-Terrorism Law of 2016 and corresponding declarations pursuant to the Defence (Emergency) Regulations, 1945 fail to meet the required standards under international human rights law, particularly those relating to legal certainty, due process, transparency, and meaningful avenues for appeal. Furthermore, while international humanitarian law allows Israel as an occupying power to take measures to ensure public order and security in occupied territory, such measures cannot be in violation of other rules stemming from IHL. In the interpretation and application of the law, one of the main objectives of the law of occupation, the protection of the population of the occupied territory against arbitrary conduct of the occupying power, must not be forgotten. Irmakkesen stressed that reliance on these applicable legal frameworks may constitute a useful tool for advocacy that transcends political and religious – and thus subjective – considerations.

Michael Sfard observed at the outset that for NGOs, being designated as a “terrorist” or “unlawful organisation” is the “equivalent of the death penalty”. The designation empowers the authorities to close the organisation’s offices, to confiscate its property, to arrest and criminally prosecute its staff, and – in this case particularly relevant – to block monetary transfers through the international banking system. He further noted that the designated Palestinian organisations have been at the forefront of a decade-long effort to hold Israel accountable at the international level, including before the International Criminal Court (ICC), and as such are considered a “strategic threat” for the Israeli right’s annexationist project. The timing of the designations coincided with important developments before the ICC, including the formal opening of an investigation into the Situation in Palestine and the appointment of a new Prosecutor. Without a forceful, sustained international response, the designations may serve as a blueprint for authoritarian governments around the world on how to successfully silence critics and civil society, particularly those that seek to engage with the international human rights system.

Fionnuala Ní Aoláin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, stressed that the designated organisations serve the most marginalised segments of Palestinian society in the oPt, including women, children, prisoners, and rural communities, who are in many ways left without meaningful protection as a result of the designations. Over the past 20 years, her mandate has documented numerous instances of authoritarian and repressive governments resorting to counter-terrorism language, discourse, and framing to stigmatise and obstruct the work of human rights organisations. The use of such measures by a State that professes its democratic credentials is especially concerning as it sends the wider signal that democracies too are in the business of shutting down civil society, that they are too fragile to hear criticism, and that at a fundamental level democracy is not self-correcting – even though the very essence of democracy lies in its capacity to hear and address even unpalatable criticism. In concluding, Ní Aoláin deemed the blatant misuse of national security and counter-terrorism legislation for purposes of repressing peaceful criticism unacceptable by international standards and emphasised that an active civil society constitutes an indispensable prerequisite for the peaceful resolution of conflicts.