Israel’s decision to cut ties with the United Nations Human Rights Council over a planned fact-finding mission into the West Bank settlement enterprise was understandable but may prove unconstructive, according to a UK-based expert in humanitarian law.
“It’s misguided to withdraw all cooperation with all bits of the UN human rights machinery,” said Françoise Hampson, a law professor at the University of Essex and former participant of fact-finding and human rights missions. “For example, some individuals, special rapporteurs, are worth cooperating with because they got very subject-specific mandates and you can make your claim, you can explain the situation as you see it.”
“The lesson to learn seems to me that from some people you will get a fair hearing, they will indicate your views – and other people won’t,” she added. “The solution to that isn’t not to cooperate — it is trying to get your view out there. In my experience, where you’re showing that you’re taking on board the information you’re receiving from them, they will take on board your specific concerns about particular operations.”
In March, the Human Rights Council (HRC), which even senior UN officials accuse of being unfairly critical of Israel, announced it would launch an ad hoc investigation into the settlements. Israel said it would not cooperate with the mission and later cut all ties with the council, instructing Geneva-based diplomats to cease all cooperation with HRC officials.
According to Hampson, a specialist on human rights and the International Law of Armed Conflicts, the Foreign Ministry’s decision was too radical in scope. “I can understand why Israel wouldn’t want to cooperate with some investigations,” she told The Times of Israel this week in Jerusalem. “If the reason for picking Israel looks as if it’s Israel-bashing, I can understand why you wouldn’t want to cooperate.”
Since the investigation is being launched by the HRC, there can be little doubt that the aim is to single out Israel for criticism, she said. “Whether they got a reason for bashing Israel is a separate question. But if there is a reason for bashing Israel, there are very good reasons for bashing other places.”
Just this week, the UN’s special rapporteur on human rights in the West Bank and Gaza, Richard Falk, compared Israel’s “discriminatory” legal system to apartheid and said the peace process was “a trick” the international community plays in order not to have to find a solution to the conflict. Falk is scheduled to present a report to the current session of the UN Human Rights Council in Geneva next Monday.
“There is a difference between ad hoc missions that you may suspect the Human Rights Council has proposed almost as a punitive measure, and a routine operation within the [regular] scope of ‘Special Procedures,’” Hampson said. “It is not a good idea not to cooperate with routine human rights mechanism that do the same thing with regards to all states globally, rather than specific ad hoc missions.”
Not all HRC special sessions have dealt with Israel, but in light of its preoccupation with the Jewish State, Israel’s unwillingness to cooperate with its fact-finding mission is understandable, Hampson said. “Whether it’s sensible, or whether you should in fact say it’s a waste of time dealing with them but at least if we show we’re cooperating maybe others will see what we’re saying, is a different issue,” she said.
Israel used to go to great lengths to respond to allegations of human rights violations, so much so that Amnesty International workers wouldn’t know what to do after they submitted a query to Israel, because officials would provide comprehensive legal answers, Hampson said. This rigorous behavior improved the culture of local NGOs, she added. “They have the discipline of a government and an army that take the law seriously, and a population that takes human rights seriously.”
But this has changed gradually: “The Israelis thought that they would get a fair hearing so they didn’t come out all defensive. More recently, Israel has got fed up with the way they’re treated in the Human Rights Council and God knows, I’d be fed up too if I’d been treated like that. But in some quarters there is the assumption that any criticism of Israel is illegitimate and from people who are hostile to Israel. There is also, in some quarters, not routinely, the assumption that any criticism of Israel is anti-Semitic. That is extremely unhelpful.”
Hampson served for seven years as an independent expert on the UN Sub-Commission on the Promotion and Protection of Human Rights and participated on fact-finding missions to former Yugoslavia and Lebanon. She is currently in Israel as a guest of NGO Monitor, a group critical of nonprofits dealing with the Israeli-Palestinian conflict. On Monday, she spoke at the launch of a new book by NGO Monitor, entitled “Best Practices for Human Rights and Humanitarian NGO Fact-Finding,” saying that “we need to try and improve the quality of NGO reports by critiquing them when they are wrong.”
‘I don’t think Amnesty International and Human Rights Watch are hostile to Israel’
“Show where an NGO misinterpreted international law or misreported facts on the ground so they can work to try and correct it,” Hampson urged at the event. In an interview with The Times of Israel, however, she defended some NGOs that often seem to treat Israel unfairly.
NGO Monitor is critical of both of these groups, claiming Alhaq is “a leader in anti-Israel demonization campaigns through lawsuits (“Lawfare”), and in the boycott (BDS) activities, which are counterproductive to peace efforts and policies.” B’Tselem — which this week made headlines with a published video showing an Israeli Border Police officer kicking a Palestinian child in Hebron — has faced “serious criticism for its misrepresentations of international law, inaccurate research, and skewed statistics,” according to NGO-Monitor.
Hampson also rejected the idea that international NGOs writing reports about the Mideast conflict pick on the Jewish state for no reason. “I don’t think they are hostile to Israel,” she said, specifically referring to Amnesty and Human Rights Watch.
“It’s more complicated,” she said, noting, though, that she does not claim their reports are always perfect. But fact-finders do not start out trying to prove their preconceived anti-Israel notions, she insisted. However, if certain human rights activists are involved in a certain conflict for too long, it might negatively affect their judgment, she said. “It’s not so much bias as more a matter of habit, because you’re not looking at it afresh,” she said.
Hampson acknowledges that for Israeli officials it must be frustrating to give interviews to human rights groups only to learn later that the subsequent reports clearly reject the Israeli viewpoint. “But I think the only way to defend yourself is with hard information,” she said. “Those who are anti-Israel with closed minds and those who are anti-Semitic are not going to be convinced whatever you do. In that sense I don’t see that Israel can change things in the Human Rights Council, because of who’s on it and where the majority lies. But there are open-minded states that don’t think that everything Israel does is wrong, that do think Israel has a right to self-defense but that don’t think Israel has never violated the rules.”
That Israel has violated — and continues to violate — international law needs to be “absolutely clear,” Hampson said. “Even if the wording of the Geneva Convention was accidental, it is nevertheless the case that you can’t ship population into occupied territory. And that includes individuals and not just mass populations,” she said with regards to the settlements. “That’s unarguable. There is no point in wasting energy defending yourself on that score.”
‘Goldstone could have expressed concern and demand more information. If he didn’t have enough information, why did he reach conclusions?’
On the Goldstone saga, on the other hand, she shares Israel’s criticism. Commissioned by the HRC, Judge Richard Goldstone sought to investigate the events surrounding Operation Cast Lead during the winter of 2008-09, but Israel refused to cooperate, citing the council’s known anti-Israel bias. In his much-quoted report, Goldstone subsequently suspects both Hamas and Israel of having committed war crimes and “crimes against humanity.” Last year, Goldstone partially retracted his condemnation of Israel, writing that if he had known then what he knows now, “the Goldstone Report would have been a different document.”
“I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes,” Goldstone wrote in The Washington Post. “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.”
Hampson sees several problems with Goldstone’s approach. For once, she disagrees with some of his legal interpretations. “It was unrealistically rigid in a human rights kind of way,” she said. But more importantly, she charges, in the absence of all the facts, Goldstone should have refrained from bandying around loaded terms such as “war crime.” He should have rather stated that he fails to see any military objective to certain actions that took place, Hampson said.
“What he can’t do is say it was a war crime, because he doesn’t know what [the army] was targeting. He could have expressed concern and say I want more information about it. If he didn’t have enough information, why did he reach conclusions?”
“If there would be no military objective here, then it would be a war crime,” she said. “You can’t assume a war crime. You can say, I can’t reach a conclusion but I’ve got concerns. It’s not an excuse to say I didn’t know these things. He knew he didn’t know them. And if he didn’t know that he didn’t know them, he’s a crap lawyer.”
However, after the fact it is impossible to know whether the Goldstone report would have really looked different had Israel cooperated, Hampson said, as a report’s outcome depends on various factors: “One variable is the people sitting on the commission of inquiry, not just the chair, but all of them. Other variables are the degree of cooperation, the time frame, and the sensitivity of the situation.”