Despite being the only democracy in the Middle East, Israel routinely faces more criticism and condemnation at the United Nations than any other country, including those that systematically kill their citizens or deny them the most basic of human rights. Even today, both the General Assembly and Security Council continue to pass one-sided resolutions that single out and condemn the Jewish State. Additionally, an overwhelmingly powerful bloc led by the Arab nations promotes a narrow and slanderous agenda meant to isolate Israel that has met little resistance.
In his speech to open the 61st General Assembly of the United Nations in September 2006, then-Secretary General Kofi Anan admitted that Israel is often unfairly judged by the international body and its various organizations. “On one side, supporters of Israel feel that it is harshly judged by standards that are not applied to its enemies,” Annan said. “And too often this is true, particularly in some UN bodies.”
October 7, 2014
Arab states blasted the EU and other democracies
for boycotting the UN Human Rights Council’s anti-Israel agenda item.
Hillel Neuer took the floor to celebrate the decision of liberal democracies to act against discrimination.
Israel’s Three UN Allies
Council on Foreign Relations
December 10, 2013
Just over a week ago the UN General Assembly voted to call 2014 the ”International Year of Solidarity with the Palestinian People.” The vote was 100 for to 7 against, with 56 abstentions. This is a standard outcome in the General Assembly where Israel is concerned. The General Assembly passed an additional five resolutions about Israel, maintaining its obsessive, ridiculous, and indefensible record of attacking the Jewish State.
Who were the six countries that voted with Israel? Three were Pacific Island nations: the Federated States of Micronesia, the Marshall Islands and Palau. And three were (begging the pardon of those tiny island states) “real” countries: the United States, Australia, and Canada. Once upon a time Israel got some votes in Latin America but those days are past, and the EU tends to vote as a bloc most of the time and to find consensus only on abstention.
The votes of Canada and Australia are particularly worthy of note. Under Prime Minister Stephen Harper and Foreign Minister John Baird, Canada has proved to be a resolute and determined friend of Israel. Australia under Prime Ministers Kevin Rudd and Julia Gillard was not, but as in Canada elections have consequences. The new prime minister, Tony Abbott, sworn in on September 28th, and new Foreign Minister Julie Bishop have swung Australia back to the position of the previous conservative government of John Howard. As the newspaper The Australian editorialized,
TONY Abbott and Julie Bishop intend to reverse the anti-Israel direction in Australia’s voting pattern in UN resolutions that Kevin Rudd oversaw as prime minister and foreign minister, and which Bob Carr continued. This is an immensely important sign of the Coalition government’s values and direction. Canberra will revert to the voting pattern established by John Howard and [foreign minister] Alexander Downer: less ambiguous, less apologetic, more straightforward in support of the only democracy in the Middle East.
It is shameful to see the General Assembly continuing to single out Israel for malign attention, and shameful that so many democracies choose to abstain on resolutions that merit an easy “No” vote. But Israel can be proud of the three great democracies that voted with her, as we can be proud to be one of them.
Understanding UN Bias Against Israel, The Jerusalem Institute of Justice
UNSECO Passes Six Anti-Israel Resolutions
October 7, 2013
UNESCO has passed six anti-Israel resolutions with backing from France.
The United Nations Educational, Scientific and Cultural Organization passed the resolutions Friday at a meeting in Paris of its executive committee.
France backed all the resolutions, as did Russia; the United States opposed all of them. Britain and Italy abstained in the votes.
Among the resolutions was one condemning Israel for canceling at the last minute a visit of UNESCO inspectors to look at preservation work at 18 sites in the old city of Jerusalem. The visit was canceled after Palestinian Authority officials said they would take the delegation to visit the Temple Mount and to meet with politicians, effectively politicizing the visit, according to Israel.
Other resolutions condemned Israel’s work at the Mugrabi Bridge at the Temple Mount Plaza, and naming Rachel’s Tomb and the Cave of the Patriarchs as Israeli national heritage sites.
UNESCO was the first U.N. body to accept “Palestine” as a member.
Palestinian Children Tortured, Used As Shields By Israel, UN Says
June 20, 2013
A United Nations human rights body accused Israeli forces on Thursday of mistreating Palestinian children, including by torturing those in custody and using others as human shields.
Palestinian children in the Gaza and the West Bank, captured by Israel in the 1967 war, are routinely denied registration of their birth and access to health care, decent schools and clean water, the U.N. Committee on the Rights of the Child said.
“Palestinian children arrested by (Israeli) military and police are systematically subject to degrading treatment, and often to acts of torture, are interrogated in Hebrew, a language they did not understand, and sign confessions in Hebrew in order to be released,” it said in a report.
The Israeli Foreign Ministry said it had responded to a report by the U.N. children’s agency UNICEF in March on ill-treatment of Palestinian minors and questioned whether the U.N. committee’s investigation covered new ground.
“If someone simply wants to magnify their political bias and political bashing of Israel not based on a new report, on work on the ground, but simply recycling old stuff, there is no importance in that,” spokesman Yigal Palmor said.
The report by the U.N. Committee on the Rights of the Child acknowledged Israel’s national security concerns and noted that children on both sides of the conflict continue to be killed and wounded, but that more casualties are Palestinian.
Most Palestinian children arrested are accused of having thrown stones, an offence which can carry a penalty of up to 20 years in prison, the committee said. Israeli soldiers had testified to the often arbitrary nature of the arrests, it said.
The watchdog’s 18 independent experts examined Israel’s record of compliance with a 1990 treaty as part of its regular review of a pact signed by all nations except Somalia and the United States. An Israeli delegation attended the session.
The U.N. committee regretted Israel’s “persistent refusal” to respond to requests for information on children in the Palestinian territories and occupied Syrian Golan Heights since the last review in 2002.
“Hundreds of Palestinian children have been killed and thousands injured over the reporting period as a result of the state party military operations, especially in Gaza where the state party proceeded to (conduct) air and naval strikes on densely populated areas with a significant presence of children, thus disregarding the principles of proportionality and distinction,” the report said.
Israel battled a Palestinian uprising during part of the 10-year period examined by the committee.
It withdrew its troops and settlers from the Gaza Strip in 2006, but still blockades the Hamas-run enclave, from where Palestinian militants have sometimes fired rockets into Israel.
During the 10-year period, an estimated 7,000 Palestinian children aged 12 to 17, but some as young as nine, had been arrested, interrogated and detained, the U.N. report said.
Many are brought in leg chains and shackles before military courts, while youths are held in solitary confinement, sometimes for months, the report said.
It voiced deep concern at the “continuous use of Palestinian children as human shields and informants”, saying 14 such cases had been reported between January 2010 and March 2013 alone.
Israeli soldiers had used Palestinian children to enter potentially dangerous buildings before them and to stand in front of military vehicles to deter stone-throwing, it said.
“Almost all those using children as human shields and informants have remained unpunished and the soldiers convicted for having forced at gunpoint a nine-year-old child to search bags suspected of containing explosives only received a suspended sentence of three months and were demoted,” it said.
Israel’s “illegal long-standing occupation” of Palestinian territory and the Syrian Golan Heights, continued expansion of “unlawful” Jewish settlements, construction of the Wall into the West Bank, land confiscation and destruction of homes and livelihoods “constitute severe and continuous violations of the rights of Palestinian children and their families”, it said.
Israel disputes the international position that its settlements in the West Bank are illegal. It says the wall it built there during the uprising stopped Palestinian suicide bombers from reaching its cities.
In March, Palmor, the Israeli Foreign Ministry spokesman, had said that officials from the ministry and the military had cooperated with UNICEF in its work on the report, with the goal of improving the treatment of Palestinian minors in custody.
“Israel will study the conclusions and will work to implement them through ongoing cooperation with UNICEF, whose work we value and respect,” he said, in response to the UNICEF report. (Reporting by Stephanie Nebehay in Geneva and Allyn Fisher-Ilan in Jerusalem; Editing by Alistair Lyon)
Biased, Prejudiced, and Unprofessional: The UN Human Rights Council Fact-Finding Mission Report on Israeli Settlements
Amb. Alan Baker
March 17, 2013
■On 31 January 2013 the “International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory” published its findings on the implications of Israeli settlements on the human rights of the Palestinian people.
■The enabling resolution of the Human Rights Council, the composition of the mission, its mandate, mode of operation, and substantive content are, from the outset, based on a premise that considers Israel’s settlement policy to be illegal. This premise dictates the one-sided and prejudiced nature of the mission and its report.
■The accepted usage in UN and other international bodies of the term “occupied Palestinian territories” (OPT) is legally flawed and indicative of the inherent bias accompanying this entire exercise. There has never been any determination that the West Bank territories are in fact “Palestinian territories.” The use of the expression “OPT” constitutes a politically biased and unjustified prejudgment as to the legal status of the territories, which remain “disputed territories” pending agreement between the parties.
■The report is based entirely on material submitted by a small number of Israeli, Palestinian, and international non-governmental organizations known for their anti-Israel agenda, residents of the territories, a left-wing-oriented Israeli newspaper (while ignoring other newspapers that take a different stand), UN bodies, and even the Jordanian foreign ministry.
■The following critique of this inherently one-sided report by the fact-finding mission outlines some examples of the blatant bias, lack of objectivity and unprofessional conduct of the mission, calling upon the UN Secretary General to reject the report in its entirety.
Any normal observer genuinely seeking to better understand the issue of Israel’s settlement activity and its implications for the Palestinian residents of the territories might view with some anticipation a report, ostensibly by an “independent international fact-finding mission,” that presumes, by its own admission, to be impartial, objective, transparent and professional.
Regrettably, upon perusing the mission’s report it becomes immediately evident that any such expectation and anticipation of impartiality, objectivity, transparency, and professionalism is immediately and blatantly false.
Title, Mandate, and Composition of the Mission
The title and mandate of the mission established by Human Rights Council Resolution 19/17 of 22 March 2012 “to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,” as well as the extremely partisan preambular and substantive provisions of that enabling resolution that determined in advance the illegality of Israel’s settlement activity, both underwrite from the start the tenor and orientation of the mission.
The fact that this exercise emanates from, and is directed by, the UN Human Rights Council, the questionable integrity and politically-biased orientation of which is a sad but universally recognized fact, only adds to the questionable nature of the mission’s report and retracts from any semblance of credibility and reliability.
The biased nature of this report is perhaps evident first and foremost from the curious composition of the fact-finding team appointed by the President of the Human Rights Council. The team included a representative of Pakistan, a country openly hostile to Israel, which maintains no relations whatsoever and refuses to recognize the country. Pakistan was in fact the co-sponsor and introducer, on behalf of the Organization for Islamic Cooperation, of the Human Rights Council Resolution 19/17 establishing the fact-finding mission, as well as a gallery of other resolutions directed against Israel.
One might have assumed that in composing any such “independent” mission, some discretion and due regard would have been given by the President of the Human Rights Council to the political implications inherently obvious in choosing such a member of the mission.
“Occupied Palestinian Territories”
What has generally come to be accepted usage in the UN and other international bodies of the term “occupied Palestinian territories” (OPT), and specifically in the title to the report of the fact-finding mission and in the resolution of the Human Rights Council setting out the mandate of the mission, is, in and of itself, politically and legally flawed, slanted, and indicative of the biased and selective character of the UN Human Rights Council, as well as of the inherent bias accompanying this entire exercise.
There has never been any determination, whether by treaty, by any binding UN resolution, or by any of the agreements dealing with the Middle East peace negotiation process, that the West Bank territories are in fact “Palestinian territories.” Similarly, there has never been any Palestinian sovereign entity that has governed the territories and to which they belong.
Even the UN itself, in welcoming and supporting the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,5 inherently acknowledged thereby that the status of the territories and the final determination of their sovereign character are, as set out in that agreement, subject to negotiation between the parties in a permanent status agreement. This is further emphasized by the co-signing as witnesses of the 1995 Israeli-Palestinian Interim Agreement by the EU, the U.S., Russia, Jordan, Egypt, and Norway.
Accordingly, the use of the expression “OPT” by the Human Rights Council and its fact-finding mission runs counter to determinations both of the UN itself as well as agreements between the Palestinians and Israel. It constitutes a politically biased and unjustified prejudgment as to the legal status of the territories, which remain “disputed territories” pending agreement between the parties. As such it undermines the Oslo Accords and prejudices the obligations set out in those accords.
Impartiality and Objectivity of the Mission’s Mode of Operation
The biased and one-sided nature of the mission’s work is evident from its opening paragraphs, including the startling admission to the fact that it based its findings only on presentations by “more than 50 people affected by the settlements and/or working in the occupied Palestinian territory and Israel, victims of human rights violations, officials of the Ministry of Foreign Affairs of Jordan, officials of the Palestinian Authority, and representatives of international and non-governmental organizations and United Nations agencies,” – all accusing Israel of humanitarian violations with the intention, as claimed by a member of the mission, of “driving the local Palestinian population away from their lands, allowing the settlements to expand.”
One may in fact wonder, in this context, what substantive standing and relevance could have been attributed by the mission to representatives of the Jordanian Foreign Ministry, with a view to their inclusion in the report as authorities on the subject matter?
In its media statement dated 31 January 2013 issued upon publication of the fact-finding mission’s report, “NGO Monitor” observed as follows:
Of 133 footnotes, 31 cite NGOs, and an additional 12 cite the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), which generally also relies on NGOs for its claims. Many of these NGOs are funded by European governments and the New Israel Fund (NIF).
The document also cites a single media source, Ha’aretz, which in turn often quotes NGOs. The reference to an opinion article from the paper’s editors also demonstrates the lack of substantive research. Many other references are to other UNHRC documents, which are also heavily reliant on NGOs and newspaper articles.
In these respects, the latest UNHRC fact-finding report again blatantly violated best practices in human rights investigations, such as the Lund-London guidelines that mandate reports be “clearly objective and properly sourced.”
But above all, what stands out is the utter lack of any information other than one-sided accusations and allegations by those sources listed, and the impression that such sources were chosen due to their compatibility with the mission’s aims rather than their validity or professionalism.
Having relied so entirely on one-sided findings, one may wonder how the mission could logically claim to have been guided by “the principles of ‘do no harm,’ independence, impartiality, objectivity, discretion, transparency, confidentiality, integrity and professionalism.”
Had the members of the mission been truly guided by the above principles, and had they been genuinely impartial, objective, discrete, transparent, professional and with integrity, as they presume to be, then in light of the one-sided nature of the mission’s mandate and terms of reference, not to mention the source material presented to them, they clearly should have recused themselves once it became evident that the mission could not meet the very standards of impartiality that it imposed on itself.
Even without the cooperation of the government of Israel (quite understandable in light of the biased mandate and composition of the mission), one might have expected, if only out of concern for its credibility, impartiality and objectivity, and when faced with the barrage of one-sided and partisan accusations and allegations against Israel, that the mission would, at the minimum, have consulted material openly available in the media and on the internet in order to verify the one-sided allegations and accusations.
An example of this might be the determination in paragraph 24 of the report that the first settlement established by Israel was Kefar Ezyon. Had they thought of checking the most simple and available websites on the subject such as Wikipedia, they would have discovered that Kfar Etzion had existed since 1927 as a Jewish farming community, on land legally purchased for that purpose. They would have discovered that the Jewish residents had been brutally massacred and exiled during the Arab uprising of 1936, later returning in 1943, only to be massacred once again and taken prisoner in 1948 by the Jordanian Arab Legion and irregular forces. The re-establishment of the village by the offspring of those same massacred Jews, and their re-entry into the same homes owned by them for decades prior to 1967, was ignored by the fact-finding mission, which ironically preferred to adopt the viewpoint of those who had carried out the massacres and to call for the removal of Kfar Etzion.
The underlying assumption upon which the entire report is premised and guided is that a situation of “military occupation” prevails in the territory, and that Israel’s policies regarding settlements and its treatment of the local Palestinian population are in violation of the international humanitarian law and various human rights treaties relevant to such a situation of military occupation.
This assumption is based on a long-standing political position repeated consistently in countless UN resolutions since Israel’s assumption of control over the territories following its defensive war of 1967, and even repeated by the International Court of Justice (ICJ) in a non-binding 2004 Advisory Opinion on Israel’s security fence.
None of the above instruments indicate or base themselves on any genuine, objective legal analysis of the sui generis situation in the territories since 1967. They are based, inter alia, on a selective interpretation of provisions of the 1949 Fourth Geneva Convention, but disregarding significant references in the official International Committee of the Red Cross (ICRC) Commentary on the convention, in its traveaux preparatoires and by prominent jurists, as to the background of, and intention behind, its provisions.
This position also disregards the factual circumstances leading to Israel’s presence in the territories, and totally ignores the unique historical and legal background, including the long, deeply-rooted, historic and indigenous rights of Jews in these territories. In this context, the UN Human Rights Council and its fact-finding mission actually undermine the UN’s own Declaration of the Rights of Indigenous Peoples (2007) which recognizes the historic rights of an indigenous people to land and territory. They also disregard and seek to undermine those historic rights guaranteed to the Jewish people in such documents as the 1917 Balfour Declaration and the 1920 San Remo Declaration, the continued validity of which is reaffirmed in Article 80 of the UN Charter.
No less surprising is the fact that the report of the fact-finding mission selectively chooses to disregard as applicable law, central provisions of the agreements between Israel and the PLO regarding the status of the territory and their mutual rights and responsibilities pending the outcome of permanent status negotiations.
The definition of Israeli settlements proffered by the fact-finding mission “for the purpose of its work” is a further indication of the biased nature of the mission’s mandate.
In Annex I to the report setting out in a timeline a listing of Israeli settlements, the mission opens its list with the 1948 Declaration of the Establishment of the State of Israel, stressing the differentiation between this declaration and the 1947 General Assembly Partition Resolution 181, as if to stress that the State of Israel itself is a settlement in derogation from Resolution 181.
Similarly, Israeli legislative instruments adopted in the 1950s and 1960s prior to the 1967 entry by Israel into the territories are also listed as “Israeli settlements.”
One might assume from this that the “impartial,” independent fact-finding mission views the very existence of the State of Israel as an “Israeli settlement,” with all the pejorative meaning attributed by the report to this term.
While viewing international human rights law and international humanitarian law, as well as other international law frameworks and principles, as its guiding factors in considering the applicable law for purposes of its mission, the fact-finding mission seems to have completely overlooked the legal framework directly and formally applicable to the situation in the territories as agreed-upon by the interested parties themselves, Israel and the PLO, in the 1993-5 Oslo Accords, witnessed by the international community and supported by the UN, which, as lex specialis, governs the legal relationship between the two sides as well as the issues of mutual jurisdiction and status of the territory.
Thus, in accusing Israel of maintaining distinct legal systems and separate application of the law for Palestinians and Israelis, the mission was either unaware of, or seems again to have deliberately chosen to ignore, the readily available information as to the legal relationship between the Palestinian Authority and Israel, set out in Article XVII of the 1995 Interim Agreement, detailing the agreed-upon fields of respective jurisdiction of the two sides. Similarly, the mission ignores the fourth Annex to the interim agreement entitled “Protocol Concerning Legal Matters,” readily available to the members of the mission on the web with the press of a button, had they chosen to consult it. This Annex covers in detail such fields as criminal and civil jurisdiction and legal assistance in criminal and civil matters.
In ignoring this important component of applicable law, the fact-finding mission is, in fact, both acting contrary to the UN’s own acknowledgment of the validity and relevance of the Oslo Accords, as well as presenting an inaccurate and incomplete picture of the applicable law.
In listing as part of applicable law the humanitarian obligations incumbent upon Israel vis-à-vis Palestinians as “protected persons,” the mission would appear to mislead readers of its report into thinking that Israel still controls all the territories and is responsible for the human rights and welfare of the residents, whose rights, according to the report, Israel is allegedly violating.
However, the mission seems to have overlooked the fact that since Israel withdrew from Areas A and B in the West Bank pursuant to the 1995 Interim Agreement, the major portion of the Palestinian residents of the territory is under the administration of the Palestinian Authority which is obligated, pursuant to a very significant clause of the 1995 Israeli-Palestinian Interim Agreement, “to exercise their powers and responsibilities pursuant to this agreement with due regard to internationally accepted norms and principles of human rights and the rule of law.” If, indeed, residents of the areas under Palestinian Authority jurisdiction (as well as residents of the Gaza Strip under the jurisdiction of the Hamas terror organization) suffer violations of their humanitarian rights, it would be appropriate for the Human Rights Council to refer its fact-finding mission to those Palestinian authorities responsible rather than to unjustly blame Israel.
Use of Slanted Terminology
In a pejorative and biased manner, the mission appears to have developed a unique form of terminology intended to indicate a new and different standard of “settler violence,” “settler attacks,” “settler communities,” “settler roads,” etc.
The usage by the mission’s report of such terms as “settler violence” implies a double standard applied vis-à-vis Israel only, and as such belies the impartial and objective nature claimed by the mission.
One may wonder how this novel term “settler violence” differs from any other form of violence, whether this be violence against Israeli citizens by foreign visitors freely entering Israel to demonstrate against Israel’s policies, violence including indiscriminate rocket fire by Palestinian terrorist elements (or, as termed by the mission, “armed elements”) against Israeli towns, villages, settlements and people, stone-throwing and other acts of violence by Palestinians demonstrating in what the fact-finding mission describes as “a non-violent manner” against Israel’s security barrier, or violence by residents of Israeli settlements against Palestinians.
Violence is violence, wherever it takes place and however termed, and in all circumstances should be dealt with in accordance with the law by the responsible authorities.
Curiously, it would appear that only in the context of the Israeli-Palestinian conflict does a “peaceful non-violent demonstration” include stone-throwing and “Molotov cocktails.” This has come to be a given, understandable, and acceptable course of action, and the international community and UN organs, including the Human Rights Council, are willing to accept such Palestinian violence as legitimate and non-violent, and condemn measures by Israel to prevent it.
In a similar vein, the arbitrary use in the concluding paragraph 101 of the term “creeping annexation,” to describe the establishment of Israeli settlements in the West Bank and Jerusalem, is nothing more than a political judgment and indicates acute lack of professionalism by the mission as well as an utter ignorance and lack of understanding of the framework of mutual commitments by Israel and the PLO in the 1995 Israeli-Palestinian Interim Agreement. Both sides agreed that settlements (as well as other issues) would be dealt with in the permanent status negotiations and, as such, undertook to avoid changing the status of the territory pending the outcome of the permanent status negotiations. Israel has consistently reaffirmed its position that the settlements issue remains an issue for negotiation, and hence any allegation that Israel’s settlements constitute “creeping annexation” is nothing less than demagogy.
The evidently deliberate and nuanced use in the fact-finding mission’s report of such terms as “total segregation,” “institutionalized discrimination,” and “separate/distinct legal systems” further indicate a lack of professional integrity by the mission members in conducting their research, as well as in the evidently deliberate use of terminology that is ominously reminiscent of apartheid or Nazi terminology or even the infamous Protocols of the Elders of Zion, with all that that is intended to imply.
The repetition by the fact-finding mission of unfounded and absurd allegations that archeological excavations conducted by Israel in Jerusalem’s Old City “are intended to emphasize Jewish cultural heritage while disregarding – or worse undermining – the rich heritage of other cultures that have contributed to the millenary history of the city” is both gratuitous and intellectually insulting, both to Israel but no less to the members of the mission themselves, and would appear to be totally irrelevant to the mandate or subject matter of the fact-finding mission. This one-sided approach by the fact-finding mission negates thousands of years of Jewish history, backed up by archeology.
The historic and cultural heritage of all religions in and under Jerusalem – whether Muslim, Jewish, Ottoman, Hellenic, or any other – is strictly and duly respected by Israel without distinction. All archeological excavations are carried out according to the highest international standards and are usually accompanied by external observers. All such excavations are documented and findings are available via the web and shared with the international community.
Had the members of the fact-finding mission been genuinely impartial and objective, they would have proceeded to authenticate such wild allegations rather than merely repeat them in their report.
In this context, one cannot but recall the crude and unprofessional excavations carried out by the Muslim Waqf authority in 1996-2007 at the “Solomon’s Stables” holy site and other sites on the Temple Mount – using bulldozers, thereby destroying countless historical artifacts. While archeologists from around the world voiced their outrage, it is noteworthy that the UN, including its Human Rights Council, remained silent.
A similarly absurd, gratuitous, insulting and irrelevant allegation by the fact-finding mission appears in paragraph 79 of the report, in which: “Israeli politicians, academics and civil society actors voicing criticism of the settlements are discredited in public discourse.”
Repetition of such an allegation belies the intellect, integrity, and professionalism of the members of the mission. Israel is an open and free society in which freedom of speech is maintained at the highest cost. Politicians, academics, former combatants, and journalists (including the renowned Ha’aretz newspaper quoted as a reference in the mission’s report) are free to voice their opinions, without fear of retribution.
The International Criminal Court
In its conclusion, the fact-finding mission accuses Israel inter alia of “gross violations of human rights law and serious violations of international humanitarian law.” It foresees a scenario in which the Palestinians would ratify the Rome Statute of the International Criminal Court and thereby invoke the court’s jurisdiction against Israel’s leaders.
Such a scenario might perhaps be wishful thinking by the members of the fact-finding mission, but in practice is highly unlikely.
Unlike the highly politicized and partisan Human Rights Council, the ICC is neither a UN Organ nor a Specialized Agency, and is not obliged, as are the specialized agencies and other bodies within the UN system, to follow the recommendations of the UN General Assembly or Human Rights Council. It is an “independent, permanent judicial institution” as determined in its relationship agreement with the UN.
The 1998 ICC Statute provides that the court’s jurisdiction may be activated only by states, and that a state party to the ICC Statute may initiate charges.
In the Palestinian 2009 attempt to invoke ICC jurisdiction against Israel, the ICC Prosecutor determined that he did not have the competence to determine whether the term “state” could be applied to the Palestinian Authority, and referred the issue to the UN Secretary General who, in case of doubt, will defer to the guidance of the General Assembly.
In considering whether the Palestinian Authority could, following the 2013 General Assembly upgrade resolution, be considered a state for the purposes of approaching the ICC, the fact nevertheless remains that it is no more a state following the resolution than it was before adoption of the resolution. Legally, the upgrade resolution neither created a Palestinian state, nor did it grant any kind of statehood to the Palestinians.
The UN General Assembly does not have the legal and political power to establish states. It merely upgraded the observer status of the PLO’s UN representation to that of a non-member-state observer for internal purposes within the UN and its constituent organs and agencies.
It remains highly unlikely that the ICC or the UN Secretary General, if functioning properly and legally and without political manipulation, would be able to accede to a further Palestinian attempt to invoke the court’s jurisdiction. As an independent juridical institution, in keeping with the purposes for which it was established, and with a view to protecting its absolute objectivity, the ICC has attempted, up to the present, to avoid having its independent juridical character politicized or otherwise compromised.
The scenario foreseen by the members of the Human Rights Council’s fact-finding mission, in which the Palestinian Authority, with the encouragement of the Human Rights Council, would attempt to manipulate the ICC and turn it into a “whipping-body” against Israel, similar to the way in which the Human Rights Council is being so manipulated, would doubtless cause considerable damage to the court and prejudice its continued credibility and viability.
This critique of the fact-finding mission’s report points to some basic flaws both in the modus operandi of the mission as well as in its mandate. These flaws reflect on the credibility, intellectual honesty, professionalism, and impartiality of the members of the mission, as well as of the UN Human Rights Council itself.
Issuing such a slanted and biased report implants within the international community an incorrect and inaccurate view of a complex reality, in a manner that inevitably steers the debate away from practical or fruitful directions and in fact assists in entrenching the beliefs of the more extreme elements on all sides. It serves to mobilize the international community in a manner prejudicial to any future prospect of agreement and settlement of the dispute.
In short, this report is nothing more than an insult to the UN as a whole and to its Human Rights Council, as well as an insult to the intellect of all those who read it in the false expectation that it is authoritative and credible.
The UN Secretary General and the President of the Human Rights Council are therefore urged to have this disgraceful report withdrawn, rejected, and permanently shelved.