Nicholas Saidel

A Battle Lost: Israel’s Misguided Silence at the United Nations Human Rights Council

Israel cannot get a fair shake at the United Nations (UN).  This much most Zionists, be they liberal or conservative, can agree upon.  Innumerable UN resolutions have unfairly singled out Israel for condemnation, while truly repressive regimes such as China and Iran are rarely, if ever, censured.  This is true for the General Assembly, which infamously labeled Zionism as racism in 1975, for the various special committees devoted entirely to Palestinian issues, and if not for the United States’ veto power, the Security Council as well.  It is also true for the UN’s Human Rights Council (HRC), which published a report on January 31, 2013 finding Israel’s settlement policy to be an illegal “creeping annexation” of the West Bank that violates the human rights of the Palestinian people.

The conclusion of the report was foreseeable.  The Israeli government, believing the fact-finding mission to be a predetermined farce, refused to cooperate.  Israel barred HRC investigators access to the West Bank, preferring instead to be tried in abstentia.  Detractors of the UN rightly ask: Why should Israel give legitimacy to an arm of an organization that has routinely proven an anti-Israel bias?  The answer for many is that Israel shouldn’t, and that no matter what facts or law Israel presented, the UN’s tendentious investigation would have reached the same one-sided conclusion.

Israel should think twice about this strategy.  Allowing Palestinians to control the narrative of hot-button issues in a global forum such as the UN is bad for Israel on many levels.  First, 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.  Akin to North Korea and Iraq under Saddam Hussein, people around the world will surely ask:  What is Israel hiding?  Second, by failing to cooperate with the UN, Israel is feeding into the growing perception that it considers itself above international law, and perhaps more importantly, that it is disengaging from the community of nations and heading toward a path of isolation.  On a related note, Israel just became the first country to refuse to participate in a “universal periodic review” of the human rights records of the UN’s 193 member states.  This is not the image Israel wants or needs.  Israel’s failure in this regard stands in stark contrast to the public relations success of Operation Pillar of Defense, where it shaped public opinion of the 2012 military operation in Gaza through clever use of social media outlets.

Third, with the message entirely controlled by the Palestinians, Israel probably exacerbated the degree of derision leveled against it in the report’s scathing indictment.  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, no explanation 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 report, Israel would have benefited from producing facts to counter some of the assertions made and to provide perspective to what the HRC determined are arbitrary and punitive restrictions on Palestinian life.  For example, the report is riddled with uncorroborated and un-cited statements such as this one comparing 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.”  While historically there has been a reluctance 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 US-born Jewish settler guilty of murdering two Palestinians and convicted him on two counts of attempted murder.  With testimony coming solely from aggrieved Palestinians with no Israeli response, it is no wonder the HRC report was weighted so dramatically in the Palestinian’s favor.

Fourth, while the UN oftentimes seems like an abstraction with no real impact or authority, there are potential real life consequences at stake here.  For those unfamiliar, the 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 – “the use of law as a weapon of war.”  The Palestinian leadership in the West Bank, having foregone traditional military or 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 HRC report is yet another lawfare victory in that it 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  private companies to boycott products made in the settlements.  In effect, the UN now endorses private sanctions against Israel.

Fifth, frayed relations with the UN may be counter-productive for Israel’s legitimacy and in its conflict with Iran and other regional adversaries.  Let us not forget it was the UN that created Israel by approving the 1947 Partition Plan.  The UN also passed Resolutions 242 and 338, which provide the basis for a comprehensive settlement that guarantees Israel safe and secure borders with its neighbors.  Israel needs the UN to continue its sanctions regime against Iran, and will have to work with the UN in the event a military confrontation with Iran takes place.  This may play out sooner rather than later as Iran’s ally Syria filed a complaint last week with the UN over an alleged Israeli air strike on a military research center near Damascus.  Iran is now warning that Israel will face “serious consequences” for its “brutal aggression” against Syria.

Sixth, there is strong evidence that cooperating with UN investigative bodies has material benefits.  Take the case of the Goldstone Report, a document produced by a UN fact-finding mission appointed by the HRC to investigate possible war crimes committed by Israel and Hamas during the Gaza War of 2008-2009 (Operation Cast Lead).  The Goldstone report concluded that Israel intentionally targeted Palestinian civilians.  But as Goldstone himself conceded in a later op-ed published in the Washington Post, this was because Israel offered no evidence upon which any other reasonable conclusion could be drawn.  Goldstone said:  “If I had known then what I know now, the Goldstone Report would have been a different document… Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants… We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.”

The material benefits of cooperation are also evident from Israel’s participatory role with the Palmer Commission.  To refresh one’s recollection, the Palmer Commission was created under the auspices of the UN and charged with investigating the circumstances of the Turkish “Mavi Marmama” flotilla incident that took place off the coast of Gaza in May 2010. The Palmer Commission investigated the Israeli navy’s boarding of the Turkish flotilla and castigated Israel’s behavior as excessive, but significantly, found that Israel’s blockade of Gaza was, in fact, legal.  In this case, Israel won an important lawfare victory, and proved that conclusions from UN bodies can be rendered, at least to some degree, in Israel’s favor.

Israel is not alone in utilizing the UN at its convenience.  The same can be said for the United States and, in fact, for most other countries.  But it must better distinguish which fights are worth fighting.  The accusations contained within the HRC report in question are harsh and the findings grave indeed.  While the substantive issue concerning to what extent Israel’s policy of settlement expansion in the West Bank affects Palestinian human rights is beyond the scope of this particular writing, it is safe to say Israel’s position in this regard would be augmented were its strategy to shift in favor of cooperation with investigative bodies of the UN.

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