Written by Amb. Alan Baker
Vol. 13, No. 7 March 17, 2013
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.
The title and mandate of the mission established by Human Rights Council Resolution 19/17 of 22 March 20122“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.3 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.4
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.
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.
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,”6 – 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.”7
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:8
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.”9
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.”10
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.11 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.12
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)13 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 Declaration14 and the 1920 San Remo Declaration,15 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.16
The definition of Israeli settlements proffered by the fact-finding mission “for the purpose of its work”17 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 181,18 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,19 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,20 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.21 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,”22 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.”23 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.
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”24against 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.25 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”26 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.27 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.
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.”28 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.29
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.30
In the Palestinian 2009 attempt to invoke ICC jurisdiction against Israel,31 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,32 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.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada.
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1. A/HRC/22/63 dated 7 February 2013, pursuant to UNHRC Resolution 19/17 dated 22 March 2012.
2. Ibid. at p. 48.
4. http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-2_en.pdf. See resolutions 19/14 “Human rights in the occupied Syrian Golan,” 19/15 “Right of the Palestinian people to self-determination,” 19/16 “Human rights situation in the Occupied Palestinian Territory, including East Jerusalem,” 19/17 “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan,” 19/18 “Follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict.”
5. UN General Assembly Resolution A/50/21 of 12 December 1995, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/50/21&Lang=E
6. Paragraph 8 of the report.
7. Stated by Mme. Justice Unity Dow, member of the mission from Botswana. See UNHRC press release dated 31 January 2013.
12. See ICRC, Commentary to the Fourth Geneva Convention, edited by Jean S. Pictet (1958), in its Forward and at pp.3-9, for an extensive summary of the reasoning behind the drafting of the convention. See also Eugene V. Rostow, American Journal of International Law, Vol. 84, 1990, p. 719, and Julius Stone, “The Illegal Settlements Myth,” Commentary, Dec. 2009.
13. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf, adopted by General Assembly Resolution 61/295 on 13 September 2007.
16. See the section on “applicable law” below.
17. Report, paragraph 4.
19. Mission report, paragraphs 10-17.
20. See the 1993 Declaration of Principles (Oslo I), http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm; the 1995 Israeli-Palestinian Interim Agreement (Oslo II), http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm; the Hebron Protocol, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Protocol+Concerning+the+Redeployment+in+Hebron.htm; the Wye River Memorandum, http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/The+Wye+River+Memorandum-full.htm; and Sharm el Shiekh Memorandum, http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/9/Sharm+el-Sheikh+Memorandum+on+Implementation+Timel.htm
22. Paragraph 15 of the report.
23. 1995 Interim Agreement, op. cit., Article XIX.
24. Paragraph 77 of the report.
25. Interim Agreement, op. cit., Article XXXI(7).
26. Paragraph 59 of the report.
27. Israel Finkelstein, “In the Eye of Jerusalem’s Archaeological Storm,” Jewish Daily Forward, 26 April 2011, http://forward.com/articles/137273/in-the-eye-of-jerusalem-s-archaeological-storm/. See also Etgar Lefkovits, “Temple Mount Relics Saved from Garbage,” Jerusalem Post, 14 April 2005.
28. Paragraph 104 of the report.
30. Articles 12-14 of the Statute of the ICC, http://untreaty.un.org/cod/icc/statute/romefra.htm
32. A/Res/67/19, 26 November 2012, http://unispal.un.org/unispal.nsf/0080ef30efce525585256c38006eacae/181c72112f4d0e0685257ac500515c6c?OpenDocument