Wednesday, January 16, 2019
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International Justice- Impartial, Impotent or Indifferent?

legitimacy of the State of Israel

“The United Nations, and in particular the UN Human Rights Council, has demonstrated a clear anti-Israel bias. It has become an institution that advocates anti-Semitism and repeatedly targets the legitimacy of the State of Israel.” Well, at least that is what we are expected to believe.

Referring to conspiracy theories aimed at destabilisation is nothing new. Many States whose human rights record is under scrutiny will often attempt to divert attention away from its own failings by suggesting that they are being unfairly targeted. The Government of Israel has become adept at such a practice.

The issue of whether the actions of Israel or Hamas and other associated groups constitute war crimes under international law has dominated the media since the summer. For Israel to suggest that their actions are permitted under international law yet the actions of Palestinian groups constitute war crimes defies logic.

Israel has not exactly demonstrated a prowess for criticism. It repeatedly refers to its Courts, Army and Government exhibiting the highest moral standing. To suggest that it repeatedly violates a host of human rights treaties and that its military actions constitute war crimes appears to be an attack on its legitimacy as a State. It is not.

It is quite right to recognise that the Jewish people have suffered throughout history and the holocaust remains one of the darkest moments in modern times. The United Nations was established on 24 October 1945 as a tool for promoting peace and international co-operation. It was set up to ensure that the impotence of the League of Nations was replaced by an institution that could bring about real change. Whilst some commentators have recently questioned its relevance, in particular the UN Security Council, following its inability to resolve conflict in North Africa and the Middle East it nonetheless remains an essential tool for establishing accountability on a global scale.

To suggest that Israel is being improperly targeted by the United Nations is difficult to take seriously. If anything, it is arguable that the international community has extended Israel a great deal of latitude in its failure to address a plethora of human rights violations that range from unlawful occupation to measures of collective of punishment.

Rules of International Humanitarian Law exist to protect all persons during conflict without discrimination. They are not to be selectively applied and such protections are not subject to restriction or limitation due to political expediency. It matters not who the parties are. It matters that there is a strict adherence to a clearly defined set of principles – principles many of which were formulated following the tragic events of the Second World War. The very fact that there is conflict obliges all parties to abide by these principles to ensure the lives of civilians are protected where possible.

It is wholly disingenuous to suggest, as has been done by the American political scientist and former law professor, Mr. Peter Berkowitz, that following Operation Protective Edge, “international actors are launching against Israel another round of ‘lawfare…a continuation of war by means of law and legal institutions”.

The suggestion advanced by Mr. Berkowitz is that by calling upon Israel to uphold generally accepted principles of international law and safeguard human rights, international actors are taking action that “criminalises Israel’s right to defend itself and abuses key principles of international law”. This is an interesting position to take. Israel of course has the right under international law to defend its territorial integrity and protect its own citizens. Such conduct must of course satisfy the test of strict necessity and proportionality and this is where perhaps the lines of agreement start to blur. However, by the same token, it must be recognised that Palestine has the right to exercise those very same rights of defending its sovereignty and territorial integrity.

Israel advances the argument that Hamas has fired thousands of rockets into Israel aimed at civilians and that justifies such a military response. The argument is also advanced that Hamas frequently uses civilians as human shields and stores weapons in civilian areas all of which are war crimes. If confirmed it is likely that such conduct will amount to war crimes, depending upon the context. However, that means that it justifies a criminal investigation in order to determine responsibility and hold those persons accountable before a court of national or international jurisdiction. What it does not permit is a military campaign that has left more than 2,000 dead including large numbers of women and children.

Israel simply cannot seek to distance itself from principles of international law and argue that such principles do not apply to them. The selective application of the law is not justified under any circumstances. All parties to conflict are bound by generally accepted principles of international law.

It is important to note that this commentary should not be interpreted as a defence of any attacks on Israel and it is not suggested for a moment that those who have engaged in criminal conduct should be absolved of responsibility; on the contrary – those persons should quite rightly be brought to justice, but to suggest that the international community are seeking to criminalise a nation’s right to self defence is palpably wrong.

There are justifiable grounds to warrant an investigation into the conduct of all parties to the conflict given the numerous allegations, and contrary to the suggestion often made, neither the facts nor the law are on Israel’s side. To suggest otherwise would condone the attack on the beach where only civilians were killed, or it would condone the shelling of hospitals, or it would condone the shelling of civilian infrastructure.

It is telling to note that the article does not mention any of the specific instances of concern; it merely relies on an incorrect analysis of international law, an incorrect comparison to other conflicts, and the repeated mantra that the UN is inherently biased against Israel. Mr. Berkowitz actually refers to the UN Human Rights Council as a kangaroo court.

Mr. Berkowitz attempts to draw a parallel with the situation in Sri Lanka and argues that the UN declined to order an investigation. That is quite incorrect. There is presently a UN Commission of Inquiry hearing evidence about that very issue. Mr. Berkowitz’s suggestion is therefore both fundamentally wrong and a clear attempt to divert attention.

To address each and every factual inaccuracy within the article would result in an article of many thousand words; however, it is necessary to address the most startling.

Mr. Berkowitz seeks to suggest that because there are no Israeli soldiers ‘on the ground’ in Gaza, Israel is not an occupying force and further, seeks to suggest that the principle of ‘effective control’ means that there must be physical presence, and that that presence must discharge the functions of government. With the greatest of respect this suggestion is at best wrong, and at worst, a deliberate attempt to mislead.

Gaza is under de facto occupation. Israel control its borders, it controls what goods are brought in or out, it controls the airspace, it controls the sea, and it exercises de facto control over what decisions can be taken by Hamas in governing Gaza. There is no requirement for there to be a physical military presence under international law to establish occupation. The ICC Prosecutor Fatou Bensouda recently confirmed as much in her decision on the Mavi Marmara inquiry.

A further wholly misleading point is to suggest that the use of force during Operation Protective Edge was proportionate and the suggestion that the use of force to eliminate military threats was not excessive or unduly punitive. Once again, one must recognise that Israel has the right of self-defence. However, Protective Edge was not about self-defence. It was not a proportional use of force. The deliberate destruction of civilian infrastructure and the deliberate targeting and destruction of civilians and their homes is not a proportionate use of force. Operation Protective Edge was about punitive retribution.

The final point to be addressed is the suggestion that the Israeli legal system compares favourably with those in the U.S., UK, Canada, and Australia. On one interpretation this is correct – if you are Israeli. If you are Palestinian, the position is quite different. We see children being tried in adult military courts; the only country in the world to do so. Adults are often denied access to prosecution evidence on the basis of national security. There are numerous aspects of the criminal justice system that one would not find in the Central Criminal Court in London and to draw a comparison borders on the ridiculous.

A full international inquiry is clearly warranted. There must be accountability for all and it must be applied without discrimination.

At the beginning of this article the point was raised that the UN is inherently biased. It is notable that there is a standing agenda item on the Israel-Palestine conflict at each session of the UN Human Rights Council. It is also suggested that there have been more resolutions adopted in relation to the situation in Palestine than in any other part of the world. That is all entirely accurate.

There is justification for that and it is not based on unfounded attacks on the legitimacy of the State of Israel. The attention is based on the fundamental concern that Palestine remains under occupation, that Israel engages in a discriminatory practice against Palestinians and that both sides have engaged in conduct that may constitute gross violations of human rights. To ignore that would defeat the purpose for which the UN was founded.

The current trend of attacking the UN is an attempt to discredit the UN Commission of Inquiry. The appropriate forum for objecting to the scope and mandate of the Commission of Inquiry is the UN Human Rights Council and Israel is entitled to do so.

The focus of the debate should be justice, accountability, respect for the rule of law, and thereafter peace. Political point scoring has no place.

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