By Andrew Tucker, Program Director, thinc.

Earlier this week in Geneva, 22 UN member states (coordinated by the United States) signed a statement to the UN Human Rights Council expressing very strong legal and policy concerns with the establishment in 20221 of the Council’s Commission of Inquiry (COI) into Israel and the Occupied Palestinian Territories. The occasion was the COI’s presentation of its first report to the Council.

This week’s statement reflects the growing international concern with the one-sided way in which many human rights organizations approach the Israel-Palestinian conflict. According to this group of nations:
 

“Resolution S-30/1 established a COI of open-ended mandate with no sunset clause, end date, or clear limitations connected to the escalation in May 2021. For this reason, many of the Council’s members at the time expressed fundamental concerns when resolution S-30/1 came up for adoption.

To be clear, no one is above scrutiny and it is this Council’s responsibility to promote and protect human rights the world over. We must work to counter impunity and promote accountability on a basis of consistent and universally applied standards.

We believe the nature of the COI established last May is a further demonstration of long-standing, disproportionate attention given to Israel in the Council and must stop.

We continue to believe that this long-standing disproportionate scrutiny should end and that the Council should address all human rights concerns, regardless of country, in an even-handed manner. Regrettably, we are concerned that the Commission of Inquiry will further contribute to the polarization of a situation about which so many of us are concerned.”


We at thinc. believe the concerns expressed in this statement reflect a fundamental problem and should be taken very seriously. As explained in our Briefing Paper, the one-sided and imbalanced character of the mandate given to the UNHRC’s Commission of Inquiry ignores the real underlying causes of the conflict, and will only result in sharpening the conflict. This is true of the many one-sided condemnations of Israel by the human rights community, such as Amnesty International and Human Rights Watch. A new approach is needed, based on historical realities, mutual respect and the need for reconciliation. The UNHRC’s obsession with criticizing Israel must be abandoned.

Background
In 2021 the UN Human Rights Council (UNHRC) established its open-ended Commission of Inquiry into Israel and the OPT. This Commission of Inquiry (COI) is highly problematic from an international law perspective and should never have been established − as explained in our Briefing Paper

The COI’s report published 7th June 2022 
On 7th June 2022, the COI published its first report. As expected, it is one-sided and biased, its conclusions based on factual and legal inaccuracies, reflecting the biased mandate. 

The COI relies on the one-sided condemnations of Israel by UN bodies over the years to conclude that the Israeli occupation is the main cause of the tensions in the region and calls on urgent action to “end the occupation”. 

The report ignores the history of the region, and undermines Israel’s legitimate rights to secure borders and protect its territorial integrity. It downplays Palestinian terror, portrays Israel as a rogue state, and seems to be intended to lay foundations for allegations of apartheid and other international law crimes to be submitted to the International Criminal Court. 

Here’s the link to the report. 

The US State Department’s criticisms 
The US State Department immediately issued a strong condemnation of the COI and its first report as “a one-sided, biased approach that does nothing to advance the prospects for peace.  The report of the Commission, released today, does nothing to alleviate our concerns.  While the United States believes the HRC plays a crucial role in promoting respect for human rights and fundamental freedoms globally, this COI and report do not advance this goal.” 

International law distortions 
In addition to the factual distortions and inaccuracies, the report’s conclusion that the occupation is the main root cause of the conflict is based on a fundamentally flawed legal analysis. 

Basically, the COI adopts the legal paradigm that the Palestinians have a right to a State and that Israel has no rights whatsoever to control the territories it captured during the 1967 Six-Day war (the Old City of Jerusalem and its environs, and Judea and Samaria). Israel is a “mere” occupying power and must end its occupation of Palestinian territory. 

This is an incomplete and imbalanced historical and legal narrative. The fact is that Jerusalem, as well as Judea and Samaria (which later became known as the “West Bank of the Kingdom of Jordan”), were always intended to be part of the Jewish homeland in Palestine that the international community decided to be established after WWI. After WWI, even though the Jews and other minorities were an important part of the geographical landscape of the former Ottoman Empire, the Arabs received sovereignty over all of the Middle East, with the exception of the territory then known as “Palestine”, where the Jewish people were to be allowed to establish their homeland, owing to their unique historical connection with the land.  

The only reason the Jewish homeland does not include the whole of Jerusalem, Judea, and Samaria is because of the Arab aggression against Israel intended to destroy the Jewish nation. 

The Arabs could have established their own State in 1947, and on many subsequent occasions, next to the Jewish State, but have repeatedly chosen not to because they refuse to accept the existence of a Jewish State. 

This is not a matter of legal technicality or mere assertion of historical rights. Israel’s very existence is at stake. Jerusalem, Judea and Samaria form the heartland of “Palestine”. If Israel’s sworn enemies gain full control of these mountains, they can destroy Israel with ease.  

The COI ignores all of this. Instead, relying selectively on UN resolutions and reports, it chooses to accuse only Israel of alleged violations of international law. 

Here are some examples of the COI’s imbalanced analysis:

  • by focusing only on international humanitarian law, human rights law and criminal law, the COI ignores Israel’s territorial sovereignty over Jerusalem and its legal claims of sovereignty to Judea and Samaria: this is the heart of the matter, because those claims are perfectly valid and entitle Israel to administer the territories and demand a peace treaty;
  • the COI states that UN Security Council resolution 242 (1967) and international law require Israel to “end the occupation” and “withdraw”: this is false because (apart from fact that 242 was non-binding) Israeli “withdrawal” was just one of the principles mentioned in 242;
  • the COI regards the “State of Palestine” as existing, covering areas A, B and C: this is incorrect because “Palestine” is not a state under international law (as even the ICC admits). Palestine cannot become a State under international law until an agreement is reached with Israel; 
  • the COI implies that the Oslo Accords require Area C to be “handed over” to the Palestinians – this is misleading, and ignores the many terms and conditions of the Oslo agreements, which required many conditions to be fulfilled before Israel would “hand over” Area C; 
  • the COI ignores the PLO/PA’s blatant breaches of the Oslo agreements since the mid-1990s, including their refusal to amend the Palestine State National Charter to remove the clauses calling for jihad to destroy the Jewish State of Israel. 

More criticism of the Commission of Inquiry’s first report:

According to Prof. Anne Bayefsky, “the UN Human Rights Council, is now engaged in an active campaign to destroy the state of Israel – by way of lethal politics”. Despite the fact that more than five million unique submissions and individual names of Jewish victims of Arab incitement and violence have been delivered to the Commission, it has already decided (based on previous, biased, UN reports) that Israel is guilty of war crimes, and that its “occupation” is the root cause of the conflict. Read more via this link. 

According to Anne Herzberg (Legal Advisor of NGO Monitor and UN Liaison for the Institute for NGO Research), the Commission of Inquiry fails to ask the right questions, ignores history, and “has shown no interest in anything other than promoting one party’s narrative”. Watch Anne’s submission in Geneva here

Although not a signatory to the US statement, Australia issued a strong statement objecting to the UNHRC’s “disproportionate scrutiny” of Israel. Viewing any conflict from only one perspective will not achieve the goal of peace. According to the Australian delegation to the UNHRC, impunity and accountability must be pursued on the basis of universally applied standards. Australia has “fundamental concerns about the nature of the Commission of Inquiry”. 

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