Engaging the UN Human Rights Council

Engaging the UN Human Rights Council

Nicholas Saidel Spring 2013

Israel began to disengage from the United Nations Human Rights Council (UNHRC) in March 2012 when the council voted 36-1 to appoint a fact-finding commission to investigate the implications of Israeli settlements on Palestinian human rights. At the time, then-Israeli Foreign Minister Avigdor Lieberman declared Israel’s policy toward the fact-finding mission would be one of non-cooperation. In January 2013, Israel declined to appear before the UNHRC’s Universal Periodic Review (UPR), a human rights assessment mechanism in which all 193 member states had previously participated.

Disengaging from Multilateral Institutions

By boycotting the UNHRC, Israel is employing a variation of a tactic employed by the United States during the Bush Administration. The UNHRC was created in March 2006 to replace the Human Rights Commission, a UN body that was the target of much criticism due to the numerous states with abysmal human rights records (e.g. Sudan and Libya) that comprised its membership and because of its disproportionate focus on Israel. The United States government under President George W. Bush refused to join the UNHRC, convinced the new body would not behave differently than its predecessor. The rationale of the United States was to render the UNHRC irrelevant and illegitimate. As U.S. Ambassador to the UN John Bolton said at the time, the United States would have more “leverage in terms of the performance of the new council” by not participating in it and thus signaling a rejection of “business as usual.”

The doubts of the Bush administration were, to a large extent, justified. The UNHRC has reduced its credibility deficit by naming human rights rapporteurs for Iran and Sudan, by speaking out against Syria, and by making progress on issues such as gay rights, free speech, and gender equality. However, it is still a body whose membership is riddled with non-democratic and repressive regimes that are frequently fiercely anti-Israel. The prescience of the Bush administration notwithstanding, the Obama administration reversed the boycott policy in 2009, and now the United States holds a seat on the UNHRC. Obama’s policy of reengagement hinges on the notion that, while the UNHRC is a flawed institution, improvement can better be effectuated from within the system than from without.

A History of Inequity

If Israel does not share Obama’s thinking as it pertains to the UNHRC, it is for good reason. Both special rapporteurs on Palestine, first John Dugard and now Richard Falk, have been vehemently one-sided in their appraisal of human rights infractions in the Palestinian territories. During his appointment, Dugard not only conveniently ignored Palestinian terrorism as beyond his mandate, but excused it as an inevitable consequence of Israeli “apartheid” practices. Falk has been even worse. He likens Israel to Nazi Germany and talks of a Palestinian “genocide.” He may also be an anti-Semite. In 2011, Falk posted a cartoon to his blog page depicting a dog with a Jewish head-covering and a sweater with the letters “USA” urinating on Lady Justice while devouring bloody human bones.

The record of the UNHRC since its creation in 2006 is replete with evidence of an unjustifiable obsession with Israel. Israel has been censured more than any other state. In fact, more than half of the resolutions passed by the UNHRC since its inception have focused on Israel. In addition, the UNHRC adopted Agenda Item 7, which makes Israel the only country that is a permanent subject of debate. It also invited a senior official of Hamas, Ismael al-Ashqar, to speak at its headquarters in Geneva, Switzerland (an invitation later rescinded after Israel filed an official complaint with UN officials) and allowed Hamas-affiliated organizations, such as the Palestine Return Centre, to hold meetings under its banner.

While these facts influenced Israel’s decision to boycott the UNHRC, it was certainly the result of two UN investigations that weighed the heaviest. The first is known as the Goldstone Commission, a UN fact-finding mission appointed by the UNHRC to probe possible war crimes committed by Israel and Hamas during the Gaza War of 2008-2009 (Operation Cast Lead). The Goldstone Commission, with which Israel did not cooperate, concluded that Israel intentionally targeted Palestinian civilians.

The second is the Palmer Commission, created under the auspices of the UN Secretary-General to investigate the circumstances of the Turkish Mavi Marmara flotilla incident that took place off the coast of Gaza in May 2010. Israel did cooperate with that investigation. In its final report, the Palmer commission called Israel’s use of force “excessive and unreasonable,” but also upheld the legality of the Israeli-Egyptian blockade of Gaza and saved its most severe criticism for the Government of Turkey.

The Shift toward Reticence

Given the UNHRC’s overall record, the Israeli government refused to cooperate with the council’s fact-finding mission on the impact of Israeli settlements on Palestinian human rights. The fact-finding mission published its report on January 31, 2013, unsurprisingly finding Israel’s settlement policy to be an illegal “creeping annexation” of the West Bank and East Jerusalem that violates the human rights of the Palestinian people. It further called for Israel to immediately begin withdrawing all of its citizens from those areas and recommended that private companies consider “terminating their business interests in the settlements.”

Israel’s non-cooperation meant UNHRC investigators were barred access to the West Bank. Foreign Ministry spokesman Yigal Palmor, speaking in Jerusalem in February, summarized the Israeli government’s position toward the fact-finding mission:

Its existence embodies the inherent distortion that typifies the UNHRC treatment of Israel and the hijacking of the important human rights agenda by nondemocratic countries… Israel was left with no other choice than to make this decision, after it became apparent that putting the disproportionate focus on Israel while ignoring massive human rights violations in the very countries who bear responsibility for this focus, only leads to the contempt and degradation of the important cause of universal human rights.

Palmor added that Israel’s decision to cut ties with the UNHRC should be considered a wake-up call to democratic countries as to the UNHRC’s corrupt nature. Cementing its position further with the recent boycott of the UPR, Israel is making a clear statement to the world that that it views the UNHRC as illegitimate—at a time when it has the backing of Israel’s main ally, the United States.

The Opportunity Cost of a Principled Decision

Building on the experience of its cooperation with the Palmer commission on the Gaza flotilla, Israel might consider revisiting its policy of non-cooperation to allow for flexibility and participation when gains can be achieved.

For example, with the message entirely controlled by the Palestinians, Israel likely exacerbated the degree of derision leveled against it in the UNHRC’s report on Israeli building activity in the West Bank. The report did not discuss at any length the security threats to Israel that give rise to some of the perceived or actual infringements of Palestinian rights that do take place in the West Bank. No context was provided and no explanation was given as to why the security fence, checkpoints, or temporary road or area closures are necessary to maintain peace and order. Instead, the report relies solely upon “information from more than 50 people affected by the settlements and/or working in the OPT and Israel.” These people included “victims of human rights violations, Jordanian Foreign Ministry officials, Palestinian Authority officials, international organizations, NGOs and UN agencies.”

Reading the findings, it appears Israel could have benefited from producing facts to counter some of the assertions made and to provide perspective to what the UNHRC determined are arbitrary and punitive restrictions on Palestinian life. For example, the report contains uncorroborated and un-cited statements such as the following, which compares legal recourse for victims of settler and Palestinian violence:

The Mission has been informed that when acts of violence are committed by Palestinians against settlers, these are appropriately addressed, indicating that the lack of law enforcement experienced by the Palestinians is largely a matter of political will. Between 90 to 95 percent of cases against Palestinians are investigated and go to court.

With testimony coming solely from aggrieved Palestinians and no Israeli response, the UNHRC report was fated to be weighed dramatically in the Palestinian’s favor. But while historically there has been reluctance by Israel to arrest and prosecute settlers committing “price tag” attacks (usually in the form of intimidating language written in graffiti and other defacement of property) or acts of violence against Palestinians, the situation has become much more equitable. In December 2012, Israeli police arrested three Jewish settlers whom they suspect of arson and other attacks on Palestinian property in the West Bank. And in January 2013, an Israeli court found a U.S.-born Jewish settler guilty of murdering two Palestinians and convicted him on two counts of attempted murder; he received a sentence of two life terms plus 70 years.

War by Other Means

While the UN oftentimes seems like an abstraction with no real impact or authority, there are potential real life consequences at stake here. Palestinians and Israelis have been engaged in not only warfare, but also “lawfare.” Lawfare can be loosely defined as the utilization of international laws and institutions to weaken one’s enemy, or “the use of law as a weapon of war.” Palestinian leadership in the West Bank, having foregone traditional military and terrorist strategies against Israel, has been quite successful on the lawfare front. Through intense lobbying by Palestinians and their sympathizers, universal jurisdiction statutes have been enacted in Europe, making it possible to arrest and convict Israeli officials of “war crimes.” A more well-known lawfare victory for the Palestinians was their recent successful non-member statehood bid at the UN.

This UNHRC report is yet another lawfare victory in that helps build the case for Israeli officials to be brought before the International Criminal Court. The report purposefully declares:

The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory… Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

The report is also a lawfare victory for Palestinians in that it recommends that private companies boycott products made in the settlements. In effect, the UN now endorses private sanctions against Israel, a legitimizing boon to the Palestinian Boycott, Divestment, and Sanctions Movement (BDS) that has already been gaining traction in other fora.

Israel Cast as a Pariah State

Allowing Palestinians to control the narrative of hot-button issues in a global forum such as the UN is bad for Israel’s image. Silence toward an inquiring body, especially one convened to investigate potential human rights abuses, looks like an admission of guilt and gives a bad impression from the start. Even people of good will are likely to ask: What is Israel hiding? Second, by failing to cooperate with the UNHRC, Israel is feeding the perception that it considers itself above international law, and perhaps more importantly, that it is receding from the community of nations and heading toward a path of isolation. This is not the image Israel wants or needs. Israel’s silence in this regard stands in stark contrast to the public relations successes of Operation Pillar of Defense, where it shaped global public opinion of the 2012 military operation in Gaza through clever use of social media outlets.

Boycotting the UNHRC mission on settlements and Palestinian human rights was a principled decision, but it was one that played into the hands of Israel’s foes.

Nicholas Saidel is Associate Director of the Institute for Strategic Threat Analysis & Response (ISTAR) at the University of Pennsylvania.