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David Matas: Israel at the UN Human Rights Council 2015

by David Matas, May 1, 2015



Going to Geneva means wandering into an alternative universe.  Everywhere else, people are concerned about a wide variety of issues - the nuclear weaponization of Iran, the rampages of ISIS, the collapse of Iraq, Libya and Syria, the bizarre behaviour of North Korea, the crimes of Sudan, the terrorism of Al Shabaab in Somalia, the Boko Haram in Nigeria, the Russian invasion of Ukraine and so on. 


In Geneva, at the UN Human Rights Council, the concern is primarily Israel.  To be specific, the focus is not Hamas and Israel, or the Palestinian Authority and Israel, or Hezbollah and Israel, or Iran and Israel, or the Organisation of Islamic Cooperation and Israel.  The focus is specifically Israel.  There are, to be sure, many references to Palestinians, but as victims of Israel.


When the Council began in 2006 the focus was only Israel, to the exclusion of every other country.  Now there are other countries which attract the attention of the Council. But by any measure - whether it be the number of resolutions, special sessions or studies, or extremes of language - Israel leads the attention of the Council hands down.  Israel is the only country with a special rapporteur whose mandate is indefinite and the only country with a dedicated agenda item. 


For this odd result, the blame lies in large part with the structure of the Council.  The Council, which was established by the UN General Assembly, consists of only 47 states, with regional blocs.  The Asian and African blocs are 13 states each. Their combination, 26 states, forms a majority of the Council.  Member states are elected by the General Assembly to the Council for staggered three year terms. Though the membership changes every year, a constant has been that the Organization of Islamic Cooperation (OIC) has formed a majority of both the Asian and African blocs. 


That is again true this year, 2015.  There are seven OIC states in this year's Asian bloc - Bangladesh, Indonesia, Kazakhstan, Pakistan, Qatar, Saudi Arabia and United Arab Emirates.  There are also seven OIC states in this year's African bloc - Algeria, Ethiopia, Gabon, Maldives, Morocco, Nigeria and Sierra Leone. This majority of seven out of thirteen in both Asian and African blocs, with bloc voting, leads to OIC control of the Council.


Moreover, the OIC, on all matters relating to Israel, defers to the Palestinian Authority, which means in reality deferring to Fatah. The Palestinian Authority is a member of the OIC under the name of the State of Palestine.  The largest party in the governing coalition of the Palestinian Authority is Fatah. 


According to the Fatah Internal Charter, one of the obligations of membership is application of the Basic Charter.[1]  This Basic Charter, drafted in 1964, pre-dates the 1967 presence of Israel in the West Bank and Gaza and is not directed to that presence. 


The Basic Charter of Fatah of 1964 states these essential principles: "Liberating Palestine is a national obligation ..." "UN projects, accords and resolutions ... which undermine the Palestinian people's right in their homeland are illegal and rejected." "The Zionist Movement is racial, colonial and aggressive in ideology, goals, organisation and method." "The Israeli existence in Palestine is a Zionist invasion with a colonial expansive base, and it is a natural ally to colonialism and international imperialism.", and "Liberating Palestine and protecting its holy places is an Arab, religious and human obligation."[2] 


The Basic Charter lists as methods "Opposing any political solution offered as an alternative to demolishing the Zionist occupation in Palestine ..."[3] and " ... the Palestinian Arab People's armed revolution is a decisive factor in the liberation fight and in uprooting the Zionist existence, and this struggle will not cease unless the Zionist state is demolished and Palestine is completely liberated."[4] The Basic Charter lists as a goal "Complete liberation of Palestine, and eradication of Zionist economic, political, military, and cultural existence."[5] 


The Palestine National Council passed a resolution in 1998 that the provisions of the Palestinian Liberation Organization (PLO) Covenant which are inconsistent with the peace process commitment to recognize and live in peace side by side with Israel are no longer in effect.  This resolution has turned out to be not so much a subtraction of all previous anti-Zionist proclamations as the addition of hypocrisy.  One need only look at the behaviour of the Palestinian Authority delegation at the UN Human Rights Council, where demonization and delegitimization of Israel take pride of place, to see that this is so.


The UN Human Rights Council is, in effect, controlled by a non-state entity whose primary focus is attacking Israel.  This structure poses a problem for the UN, for peace, for human rights, for the Jewish community world wide and for Palestinians themselves. 


The distortion of the UN Human Rights Council into a UN anti-Zionist council discredits the UN.  It harms victims of real human violations because every minute and dollar spent at the UN on beating up on Israel is money and attention diverted from the plight of real victims or, in the case if Palestinians, the real cause of their victimization, which is the anti-Zionism Fatah and others trumpet.  Violator states welcome the deflection of attention from them to Israel.


Turning the UN Human Rights Council into a mouthpiece for war propaganda against Israel harms peace, not just because it reinforces anti-Zionists in their belligerence, but also because it becomes an alternative to negotiations. Anti-Zionists prefer resolutions from an international body which parrot their beliefs to resolution of their attacks against Israel.


For anti-Zionists, the structure and mandate of the UN Human Rights Council are a happy confluence.  Anti-Zionists attempt to delegitimize and demonize the Jewish state as a continuation by other means of their wars against the existence of that state.  The abuse of the UN human rights vocabulary to target the Jewish state is for anti-Zionists an instrument of choice which, from their perspective, they have the good fortune to control.


The UN Human Rights Council demonization of the Jewish state reinforces and amplifies the demonization of the Jewish people world wide for their actual or even presumed support for this supposedly demon state.  The anti-Zionist vocabulary is worse outside the confines of the UN Human Rights Council.  But nowhere else is it given such international respectability.


This demonization of Jews world wide as actual or presumed supporters of a demonized Jewish state is more harmful to Jews outside of Israel than inside, who for the most part do not face antisemitism.  The UN Human Rights Council, by buying into the agenda of delegitimization and demonization of Israel, is a direct contributor to this global spread and acceleration of antisemitism.


Palestinians are victims, but their perpetrators are not Israel or Israelis, who are only defending themselves against attacks.  Their perpetrators are those who refuse to resettle them, deny them local integration, keep them as a hostage population and egg them on to attack Israel.  The UN Human Rights Council, with its reinforcement and amplification of the anti-Zionist rhetoric, is far more responsible for the victimization of the Palestinians than Israel is.


Anti-Zionism pervades all UN institutions partly because of the size of the OIC bloc, 56 votes even without Palestine. Vote swapping magnifies this number and converts it into a majority in virtually all UN institutions.  The OIC is more than happy to swap support for other issues which are priorities for other countries in exchange for support for its agenda of beating up on Israel. 


Often this vote swapping is anti-Zionism in exchange for immunity.  The OIC will vote in favour of immunity from UN scrutiny for real, serious human rights violators in exchange for support for the OIC anti-Zionist agenda.  Violator states are more than happy to trade their votes and voices about Israel to the OIC in exchange for inattention from the Council to their human rights violations.


For states which want to use the UN to promote respect for human rights and peace, the distortion of the UN Human Rights Council to give pride of place to the demonization of Israel presents an obvious problem.  The question is what, given the structure of the Council, they can do about it. 


States not members of the Council can not vote on resolutions.  However, they can attend all meetings and speak on all matters. They can co-sponsor resolutions. They are members of regional blocs which contain members of the Council. While the states which are member of the Council have a more direct influence on the work of the Council than non-members, all members of the UN can have an impact.


A handful of democratic states are rejectionist; they have nothing to do with the anti-Zionism of the automatic majority.  Those rejectionists who are members of the Council vote against all of the anti-Zionist resolutions.  Rejectionist members and non-members alike refuse to co-sponsor anti-Zionist resolutions; they boycott the agenda item dedicated to Israel, not speaking and not even attending.


Most democratic states though do not have this rejectionist approach.  All too many democratic states vote in favour of anti-Israel resolutions and special sessions.  They attend and speak on the agenda item dedicated to Israel. They have become fellow travellers in the corruption of a UN human rights institution into a vehicle for war propaganda against the Jewish state and incitement to hatred against the Jewish people.  Why is this happening? 


I was part of a B'nai Brith International delegation to the United Nations Human Rights Council in Geneva the week of March 8th to 13th.  Our delegation consisted of 24 different people from 9 countries who met with representatives of 39 states.  I myself met with representatives from Brazil, Switzerland, Israel, Canada, Ireland, Rwanda, Austria, Bulgaria, Estonia, Peru, Georgia, Hungary and South Sudan.  Everywhere our message to those states who went along with the anti-Israel distortion of the Council was the same -do not contribute to the piling up on Israel.


None of our delegation was a national of Israel.  None of us have any official function in the Government of Israel.  Our focus as B'nai Brith International (BBI) is combating antisemitism.  BBI comes to Geneva because today the anti-Zionism of the UN Human Council is a reflection of and contribution to global antisemitism.


When we presented this message to the democratic states in Geneva who go along with the anti-Zionist drift of the Palestinian Authority and the OIC, the diplomats in response gave a wide variety of justifications for the behaviour of their governments.  In what follows, I set out these justifications and my reaction to them.


1) Respecting the agenda

Justification: We speak on the agenda item dedicated to Israel because we need to respect the Council agenda.


Response: An agenda item provides an opportunity to speak, not an obligation to speak.  Indeed, if all 193 states spoke on all agenda items everywhere in the UN system, the system would be immobilized. The notion that a state has to speak on an agenda item simply because it is there is a recipe for filibuster, not a recipe for respect.


This rationale is a triumph of form over substance.  What should matter is content, the substance of the agenda item, not merely the fact that it is there.


Even for those states whose priority is the institutional structure of the UN Human Rights Council, that priority is better served by avoiding a component of that structure which brings the institution into disrepute than by becoming an active participant in it.  Those who want to make a better UN need to act to get rid of the obsessive focus on Israel, not to join in on it.


2) Avoiding violence

Justification: The Palestinians in Geneva present their agenda as an alternative to violence in and from the West Bank and Gaza.  Seeing their agenda endorsed in Geneva helps to placate some in these territories who would otherwise be inclined to take the law into their own hands.


Response: This is a form of the threat, "Agree with me, or else". Those who utter the threats are bullies.  The only way to stop a bully is to stand up to him.  Acceding to a bully's threats makes future bullying more likely.


Moreover, the threat is not real.  The notion that terrorists will be persuaded by a UN resolution to lay down their arms is farfetched. The causation is rather the reverse.  The wide of variety of UN anti-Zionist initiatives helps to convince terrorists of the rightness of their cause.  UN endorsement of their views gives both their beliefs and their acts respectability.  To stop anti-Zionist terrorism, anti-Zionism needs to be marginalized, not brought front and centre.


3) Security Council failure

Justification: The Security Council does not address adequately the conflict between Israel and the Palestinians.  The United Nations Human Rights Council needs to remedy this defect, fill the gap in the UN system.


Response:  Bringing matters of peace and security to the UN Human Rights Council because the Security Council does not deal with them in a manner in which one of the parties to a dispute does not like is the antithesis of institutional respect. Forum shopping should be discouraged.


The UN Charter gives responsibility for the maintenance of international peace and security to the Security Council.  Member states of the UN have agreed that, in carrying out its duties for the maintenance of international peace and security, the Security Council acts on their behalf.[6]  The Charter further provides that, when the Security Council is addressing any dispute, the General Assembly will itself not address the dispute unless asked.[7]


Needless to say, the Security Council has not asked the Human Rights Council to stick its oar into the Israel Palestine dispute.  Moreover, the various disputes in the Middle East, including this one, are part of the Security Council agenda and have been since the inception of the Human Rights Council.  If the General Assembly should not, according to the Charter, address the dispute, then surely so should not the Human Rights Council.


If the Security Council does not do what the Palestinian Authority wants, and that is the body responsible in the UN system for maintenance of peace and security, then they are circumventing the UN system to come to the Human Rights Council to get what they want.  UN member states who want to respect the institutional structure of the UN should play no part in that circumvention.


The current UN structure was designed purposively.  The allocation of peace and security to the Security Council was not just arbitrary.  The Security Council was designed so that it could, as effectively as possible, deal with peace and security.   Bringing peace and security issues to an institution designed for another purpose produces the result we see at the Human Rights Council, activity which does nothing to resolve the Israeli Palestinian dispute, but, on the contrary, envenoms it.


4) Israeli non-engagement

Justification:  Israel has not been engaged in existing mechanisms, making submissions and providing access to the territories.  New resolutions and studies are needed in the hope that these new investigations would be provided with the cooperation the old ones were not.


Response:  The reason for Israeli non-engagement is bias.  The mandating resolutions for past studies and investigations told the authors of the report what their conclusions should be.  Cooperation with a biased mandate holder does nothing other than add credibility to a biased report. 


If this truly were the reason for the new and additional mechanisms, to obtain Israeli cooperation which had not been forthcoming with the old mechanisms, then the new mechanisms would avoid the biased mandates of the old. Yet, each new mechanism mandate surpasses its predecessors in its manifestation of bias.  The mandates are a provocation, not an invitation.


5) The difference between mandates and reports

Justification: Carrying this argument forward, we heard that, even though mandates are biased, the reports need not be.  When Israel does not cooperate, the reports are inevitably one sided.  If Israel were to cooperate, there need not be a one sided result, no matter how one sided the mandate.


Response:  The suggestion that mandate holders would disregard their mandates is, from past experience, not that realistic.  The suggestion that mandate holders should disregard their mandates is not that responsible.  To shift the responsibility for impartiality from the Council to mandate holders is unfair to both. 


There is, to my knowledge, only one UN Human Rights Council report about Israel not bristling with bias against Israel, the October 2006 report of four UN rapporteurs on the armed conflict between Lebanon and Israel in July and August 2006.  The four were the rapporteurs on health Paul Hunt, arbitrary executions Philip Alston, internally displaced Walter Kalin and housing Miloon Kothari.[8]


The report had its defects[9], but had several positive features.  The report did not accuse Israel of war crimes; it raised the possibility only that individuals might be guilty of war crimes. 


The report did not claim Israel had violated the Geneva Conventions on the Laws of War through disproportionate attacks.  The report noted that Lebanon is a party to the Geneva Conventions Protocol relating to the protection of victims of international armed conflicts but Israel is not.  The report referred to the correct proportionality standard, that an attack must be excessive in relation to the direct military advantage anticipated to be disproportionate.


Because the report failed to join the anti-Zionist chorus and avoided repeated the standard legal errors and omissions in which anti-Zionists indulge, many states at the Human Rights Council condemned the report as pro-Israel.  Pakistan speaking on behalf of the OIC said the report was a "one sided narrative", the report was "deferential towards Israel" and "accusatory towards Hezbollah". According to the press release of the debates for October 4, 2006:

          "The OIC believed that in the case of Lebanon, the principles of distinction between civilians and combatants, prohibition against indiscriminate attacks and proportionality had been violated. The OIC as a whole and OIC Council members had decided to distance themselves from the conclusions of the report, which did not have any operative value, direct or indirect."

There was a spate of statements at the Council from individual anti-Zionist states to the same effect.


The report of the quartet stemmed from the mandates of the individual rapporteurs, not from a resolution of the Council.  The criticism these mandate holders received would have expanded exponentially had they ignored a mandate given to them to criticise Israel.  In light of the denunciations piled on the report of the quartet, any holder of a mandate to criticize Israel would have to cringe at the prospect of the criticism he or she dared to ignore that mandate.


6) Redressing the balance

Justification:  Israel has a much stronger military than the Palestinian Authority.  The UN Human Rights Council can help to redress that imbalance by giving some weight to the Palestinian cause.


Response: This sort of reaction, favour the underdog, pays little attention to the rights and wrongs of the situation.  It assumes that both sides have equal merit or unworthiness.  The fact that anti-Zionists terrorize civilian targets and that Israel defends itself becomes an irrelevancy.


As well, the notion of Palestinians as underdogs suffers from an overly narrow focus.  If one considers the Middle East region or the planet, it is Israel that is the underdog. The very piling up on Israel at the UN Human Rights Council is evidence of that. 


This concept of favouring the small over the big, even if it were accurate to describe the Council reaction to the the Palestinian-Israeli conflict that way, is at the Council far from consistently applied. Russia occupies Crimea and, through surrogates, Eastern Ukraine and Abkhazia and South Ossetia in Georgia. China occupies Tibet and arguably Xinjiang. The imbalance between the Palestinian Authority and the Government of Israel is dwarfed by the imbalance between Russia and either Georgia or Ukraine or between China and either Tibet or Xinjiang.  For the Council, Russia and China are countries too powerful to confront.  Israel, and not either Russia or China, is the target of Council ire not because Israel is so big, but rather because it is so small. 


7) A positive trend

Justification:  It is true that there is marked imbalance in the Council, a disproportionate focus on Israel.  However, the situation is improving.  The imbalance is less acute than it was.


Response: The agenda item on Israel, item 7, appears at every session of the Council, which meets three times a year.  We heard country representatives say to us that their government used to speak on item 7 at every Council session; now they speak on item 7 only once a year.  


A positive trend is not the same as a positive result.  Doing less of something wrong is not the same as stopping wrongful activity.  One would never accept as a justification, for instance, from a husband who beats his wife that he beats his wife less frequently than he used to do.  Wrongful activity must stop immediately, not over time, in a descending scale eventually.


As well, numbers mount up.  The issue is not just the number of special sessions or reports or resolutions dedicated to Israel each year but also their accumulation over time.  The longer the imbalance persists, the greater the total imbalance.  A deceleration in the imbalance still adds to the overall total imbalance.


8) The structure

Justification: The imbalance against Israel is the result of the structure of Human Rights Council, with its OIC and consequently Palestinian Authority control.  States opposed to this imbalance cannot change the result. All we can do is mitigate the damage.  Negotiating damage limitation requires offering something in return, support for the negotiated result.


Response: This is a polite way of saying, "We have no choice".  Yet, there is always a choice.  States who oppose the imbalance can always say no.


There is, I acknowledge, some merit to this position.  We need only look at the Basic Charter of Fatah and compare it with UN resolutions to see the sort of language to which the UN resolutions might descend if there were no negotiations. Anti-Zionists outside the UN do not hesitate to deny the Holocaust and accuse Israel of Nazism, apartheid and genocide. Given free rein they would likely do the same within the Human Rights Council.  It was not that long ago that the UN General Assembly passed a resolution equating Zionism with racism.  The resolution passed in 1975 and was not repealed till 1991.


All the same, my general advice to anyone invited to play a game where the result is fixed in advance is not to play rather than to join in to see how little you can lose.  For those who decide to play anyways this particular game, my view is that they are giving up too much, without an adequate realization of what is at stake.


The support of democratic states for repugnant resolutions, reports, sessions and mandates is a high price to pay for making all these devices marginally less awful.  Democratic support gives these devices a credibility they do not deserve.  The cost these devices impose in fuelling antisemitism and anti-Zionism world wide, the loss to peace and credibility of the UN human rights system, and the victimization of the Palestinians themselves by keeping them tethered to the yoke of anti-Zionism are now insufficiently factored into the support democratic states give the Human Rights Council result.  If we consider what is being given up and what is lost by the support the democratic states give, it is hard to believe that the current result is the best they can do.


9) The consensus

Justification: The European Union (EU) is the lead negotiator with the Palestinian Authority in moderating the resolutions the Authority wants the Council to pass.  The EU trades votes for language and eventually, after moving the Authority somewhat on language, offers the Authority their votes.  The EU operates by consensus.  EU states left to their own devices would split in three ways, some opposing the vilification of Israel, some joining the anti-Zionist stampede and some abstaining. Simply to maintain the EU consensus, states vote with the consensus.


Response:  It speaks volumes about the nature of the Council that negotiations between the EU, a 28 state organization, and a non-state entity determine the Council outcome.  These negotiations are daily on the ground evidence of Palestinian Authority control of the Council.


Going along with the outcome of these negotiations, even for EU states, is another way of saying "I had no choice".  Yet, when it comes to this very matter, voting with the EU consensus on anti-Israel initiatives, it is apparent that EU states do have a choice.


The EU makes its own statements and takes its own initiatives at the Human Rights Council.  It is more than just a regional bloc.  It is, like the OIC, an entity, with its own actions.


In 2014, the EU decided not to speak on item 7, the anti-Israel agenda item.  Yet, at least four different EU states did speak on this agenda item - Sweden, Malta, Slovenia and Luxembourg.  It seems that the consensus holds when it comes to ganging up on Israel, but not when there is a decision made to refrain.  If states seduced by the siren of anti-Zionism can break EU ranks, then surely so could the opponents of the slandering of Israel.


10) Non-members

Justification:  We are not a member of the Council. We sympathize, but there is not much we can do one way or the other. EU states which are not Council members say that the EU consensus is led by EU states which are Council members.


Response:  Every state is a member of a regional bloc and can raise their concerns in that bloc.  States not members of the Council may not carry the same weight as states members of the Council, but they can have an influence.


The notion that discrimination is none of my business if I am not the hands on discriminator is antithetical to the very notion of human rights.  Human rights is everybody's business, including states who are not members of the Human Rights Council.


11) Economic interests

Justification:  The EU states which tend to oppose Israel bashing -Bulgaria, Romania, Slovakia, Hungary, the Czech Republic - are new to the EU, relatively small and relatively poor.  They often need to insist on EU consensus on other matters to promote their own economic interests.  Their breaking the consensus on Israel they fear might be used against them to break a consensus on which they want to insist to promote their own economic interests. 


Response: This is another form of reaction to bullying, not the threat of violence, but the implied threat of economic repercussions if the reluctant EU states do not join an anti-Israel consensus.  Here too, states should stand up to bullies.


As well, there is strength in numbers.  Those within the EU sympathetic to the plight of Israel need to work together to have a meaningful impact on the EU consensus.


12) The road to peace

Justification:  Israel needs to be more clear about how it will get to peace with the Palestinian Authority.  The lack of clarity on the road to peace fuels the anti-Zionism of the rejectionists and the support they get from fellow travellers.


Response:  This response suggests that ganging up on Israel at the UN might somehow bring Israel to the negotiating table or modify its negotiating position.  Yet, Israel has imposed no pre-conditions on negotiations. It is the Palestinian Authority which has.  Israel does not need to be persuaded to negotiate peace. The Palestinian Authority does.


A negotiated peace is by its very nature a two way affair.  The onus can not be on Israel alone to show the way to peace.  Clarity in the peace process, like peace itself, is a responsibility which falls on both parties, and not just on Israel.


13) An opening to Russia

Justification:  We do not want to see an initiative to combat antisemitism at the Human Rights Council because it would provide an opening to Russia.  Russia defends its occupation of Crimea directly and through surrogates in Donetsk in part on the basis that the Ukrainian regime is antisemitic, neo-Nazi and fascist.  We do not want to give Russia a platform or excuse for using that anti-Ukrainian rhetoric in the Council which confronting antisemitism and anti-Zionism directly in the Council would do.


Response: Combating antisemitism means not just opposing its existence but also commending its non-existence.  Using the Human Rights Council chamber to reject the Russian accusations of antisemitism of the current Ukrainian government is not a diversion or misuse of the Council. On the contrary, it helps to present a more complete picture about what the combat against antisemitism means.


As well, the notion that Council states can stop Russia from saying what it wants to say is unreal.  Russia will not be thwarted by a Council unwillingness to put the combat against antisemitism on the Human Rights Council agenda.


14) Israel as a model

Justification: We expect better from Israel.  The volume and strength of the initiatives against Israel is a measure of our disappointment for what Israel has done.


Response: This is an application of a dual standard, holding Israel to a higher standard than others.  Israel should be held to the same standard as all other states.


In any case, at least from my perspective, Israel has not failed to meet the higher standards some states set for it.  Israel, faced with terrorist threats, has become a paragon in confronting them in a way which maximizes protection of human rights.  States which now do not hesitate to criticise and vote against Israel at the Human Rights Council should instead be taking lessons from Israel on how to confront their own terrorist threats.


15) Israel and the laws of war

Justification:  Israel violates the laws of war in such a serious and consistent way that they deserve all the attention at the UN Council they get.


Response:  The slanders and distortions directed against Israel are endless. There are not just wild general charges, but also a myriad of specific detailed ones.  Their refutation in turn is an endless task, the work of Sisyphus. 


There are many more anti-Zionists than Zionists. There are 56 states members of the OIC. There is only one Jewish state. Refuting the phoney charges against Israel wherever they occur would require numbers and penetration which the Jewish community world finds difficult to muster.


To take one example we heard this past week, Israel was accused by a state representative of using phosphorus weapons in violation of the laws of war. The laws of war prevent the use of weapons with incendiary characteristics.


Yet, Israel has never used phosphorus weapons. Israel did, in the Gaza war of December 2008/January 2009, use phosphorus flares as smoke screens, something consistent with the laws of war.  Since January 2009, the Israeli army has stopped the use of these flares because of the misleading outcry about them.


This is as good an example as any of the anti-Zionist dynamic. Anti-Zionists criticize Israeli efforts at self defence without reference to the terrorism which generated the self defence efforts.  Israel is then pilloried for its self defence tactics.  Rather than deploring the (non) use of Israeli phosphorus weapons, we should be regretting that Israel decided to abandon phosphorus flares as a legitimate means of self defense in order to placate propagandistic criticism.


16) Intent and effect

Justification: What matters in assessing compliance with the laws of war is not just intent but also effect.  Establishing intent is essential for a criminal conviction for having committed a war crime.  It is not necessary to establish intent to establish that a state has violated the laws of war.  As long as the standards themselves are violated, the fact that the violation occurs inadvertently does not change the fact of violation.  Israel, whether intentionally or not, has violated in effect the laws of war to such an extent to justify the attention the Council gives to it.


Response: This is kind of argumentation gets us into the technicalities of the laws of war, which are systematically distorted to blame Israel.  When we are looking beyond intent to effect, we are looking to the standard of excessive response.


Killing one civilian intentionally is a war crime. Killing one civilian inadvertently may or may not be a war crime depending on whether that inadvertent killing does or does not form part of a response which is excessive in relation to the concrete and direct military advantage anticipated.


The test of excessive response should not be what it has become for Israel, the second guessing of each and every Israeli effort at self defense by arm chair generals without military expertise. If the laws of war are interpreted to prevent self defense, in the end it is not self defense which will suffer; it will be respect for the laws of war.


17)  Occupation and settlements

Justification: Occupation and settlements must cease; as long as they continue, the plethora of initiatives against Israeli is justified.


Response: The language of occupation and settlements has become common usage for the West Bank.  The language of everyday use must though be distinguished from legal terminology.


Occupation and occupation in violation of the Geneva Conventions on the Laws of War, settlements and settlements in violation of the Geneva Conventions are not identical.  Occupation in violation of the Geneva Conventions requires the existence of a state occupied power.[10]  The only candidate for that slot for the West Bank is Jordan, which has renounced all claims to the West Bank.


Settlements in violation of the Geneva Conventions require forcible transfer by the occupying power to the occupied territory.[11]  The Israeli government has not forced any of those labelled as settlers to move to the West Bank. 


Jordan before the 1967 war had the same form of legal control over the West Bank that Israel now has. The Jordanian control was never called occupation.  The presence of Jordanian nationals was never called settlements.  That was true then and is still true now, when anti-Zionists address the past presence of Jordan in the West Bank.


The only noticeable difference between the Jordanians on the one hand and the Israelis on the other is that the Jordanians are Arab and Muslim.  The Israelis, for the most part, are not.  The difference in labelling then has nothing then to do with the laws of war and everything to do with racism.


There are many Arab Muslims living in Israel.  There is no reason why Jews could not live in the West Bank.


The presence of Jews in the West Bank requires their protection because of the risks they run from terrorists.  These protection measures can not be blamed on the presence of Jews but rather must be blamed on the hatred of terrorists.  This hatred is spurred by anti-Zionist rhetoric, which the Human Rights Council fuels with its condemnation of settlements.


18) Neither anti-Zionism nor antisemitism

Justification: Our support for the anti-Israel initiatives at the Council is not meant to be antisemitic or anti-Zionist.


Response:   This statement does not explain why events are unfolding as they are, but rather rejects one possible explanation.  In any case, reflected discrimination is still discrimination. If a restaurant does not serve a minority, it does not matter whether this discrimination is prompted by the beliefs of the owner or by deferral of the owner to the wishes of bigoted customers.  The fact that states go along with the anti-Zionist crowd reluctantly instead of enthusiastically is not much of an excuse.


Here too the distinction between intent and effect is relevant.  Whatever the intent of the states which at the Council have become fellow travellers of the anti-Zionist initiative, the effect is to amplify both anti-Zionism and antisemitism.  States here too have to be held responsible for the effects of their actions, regardless of their intent.




I personally attended only one third of the meetings the BBI delegation had with representatives of states. The justifications I heard for the anti-Israel bias of the Council were not comprehensive but were, I am confident, representative.  The conclusion I draw is that none of these justifications makes sense.


Israel in Geneva used not to be part of any regional group, the only state in that position.  Finally it was allowed membership in WEOG, the Western European and Others Group in November 2013, more than sixty four years after it joined the United Nations in May 1949.


In years past when I came to Geneva, I heard many justifications for this isolation.  They were as uncompelling as the present focus of the Council on Israel is.


Theodor Herzl, the founder of Zionism, diagnosed antisemitism as a disease from which the Jews suffered because of their statelessness. He considered that antisemitism would be resolved "on a political basis" through the creation of Jewish state.  He predicted that, once a state was created for the Jewish people, the Jews would become like any other people.  He argued in his pioneering 1896 pamphlet "The Jewish State" that the advent of the Jewish state "would put an end to antisemitism."


But, just the opposite has happened.  The Jewish state has come to be treated like the Jewish people.  Israel has become the Jew amongst nations - outcast, defamed and demonized. Nowhere is this more evident than at the UN Human Rights Council.


David Matas is an international human rights lawyer based in Winnipeg, Manitoba Canada. He is senior honorary c


    [1] Article 12 (c).

    [2] Articles 5 to 9.

    [3] Article 22

    [4] Article 19

    [5] Article 12

    [6] Article 24

    [7] Article 12

    [8] A/HRC/2/7, 2 October 2006

    [9] David Matas "Disproportionality and anti-Zionism" unpublished text.                                          

    [10] Article 2 Convention (IV) relative to the Protection of Civilian Persons in Time of War


    [11] Article 49 Convention (IV) relative to the Protection of Civilian Persons in Time of War



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