Thursday, January 31, 2013

The Middle East Media Sampler 1/31/13: Distorting International Law Against Israel

From +David Gerstman:

International law and human rights vs. Israel 

Yesterday the New York Times published an op-ed, Why Palestine should bring Israel to court in the Hague by George Bisharat. Elder of Ziyon cited Professor Eugene Kontorovich, an expert on international law, exposing a number of fallacies of Bisharat's op-ed:
  1. The ICC can only act when the home state refuses to investigate crimes; that is not the case for any Israeli acts in Gaza or the territories.

  2. ICC has never prosecuted a case referred by a country against nationals of a non-member state. Such an action would terrify US officials and permanently sour American relations with the Court, as it would expose U.S. military and civilian officials to liability for U.S. armed action anywhere in the world, and particularly for the controversial drone strikes program of President Obama.
  3. The ICC has never even considered taking a case that does not involve killing and personal violence; a settlements suit would be far outside the kind of things they've dealt with in the past.

  4. The relevant actions would have to be on the territory of Palestine, which is a problem since they do not have defined territory, and most of what the op-ed talks about precedes their nominal statehood, so that would be out of bounds.

  5. The ICC would also have jurisdiction over all Palestinian war crimes.
Bisharat, who is a professor of law, is very much an activist in service of a cause. Another professor of law, William Jacobson, showed that Bisharat is a poseur, who uses a false family history to justify his campaign against Israel:
Yet much of Bisharat’s family narrative is exaggerated, at a minimum. I previously documented Bisharat’s claim that his father was forced to abandon an art show at a Jewish-owned art gallery due to his father having spoken up for Palestinian rights. That claim, made by Bisharat long after both his father and the gallery owner had died, leaving no witnesses, was disputed by people affiliated with the gallery. 
Bisharat regularly and for decades has played upon his family history as forming his narrative of Israel’s lack of legitimacy, and his call for a single state encompassing what now is Israel, the West Bank and Gaza ... 
Jacobson has critiqued Bisharat and his views other times too.

Today, the Times takes another angle to use international law as a cudgel with which to beat Israel, an editorial, titled Israel Ducks on Human Rights.

Yisrael Medad and Daled Amos both identify the contradiction at the heart of the editorial.

The third paragraph reads:
In May, Israel said it planned to stop participating because the council was a “political tool” for those who wanted to “bash and demonize” Israel. The council, whose 47 members are elected by the United Nations General Assembly, is clearly not without faults. More than half of the resolutions passed by the council since it started work in 2006 have focused on Israel and its treatment of Palestinians, and Israel is the only country that is a standing item on the agenda for the council’s biannual meetings.
But two paragraphs later, the editors tells that "universal standards" in human rights are important!
Human rights reviews are an important tool for judging all countries by universal standards and nudging them to make positive changes. By opting out, Israel shows not only an unwillingness to undergo the same scrutiny as all other countries, but it deprives itself of an opportunity to defend against abuse charges. The decision could also undermine the entire review process by providing an excuse for states with terrible human rights records — like North Korea, Iran and Zimbabwe — to withdraw as well. It certainly will make it harder for Washington to argue for reviews when an ally rejects the process.
It would be one thing for the New York Times to acknowledge that the Human Rights Council is flawed and that Israel should submit to its authority, if the flaws were not relevant to Israel's standing. But one of the flaws that the Times itself acknowledged is the council's obsession with Israel, meaning that Israel will not be judged by the "universal standards" it claims to champion.

Israel Matzav outlines the degree to which the editorial downplays the rather substantial flaws of the Human Rights Council.
The Times' willful blindness to what the 'council' is and what it represents is beyond appalling. The 'council' has nothing to do with the protection of human rights (note - without the scare quotes this time) and everything to do with promoting the use of 'human rights' as a means of bashing Israel as was decided at the Durban I conference in 2001. That is why the 'council' has had nothing to say while 60,000 Syrians have been murdered by the Assad regime in the last two years, and that is why the 'council' had nothing to say about the green revolution in Iran in 2009 (behavior in which the Obama administration was unfortunately and shamefully complicit). 
There is no reason for countries like North Korea, Iran and Zimbabwe to skip their universal periodic reviews because, unlike Israel, which is the only democracy in the Middle East and the only place in the world in which Arab Christians and Muslims have human rights, countries like North Korea, Iran and Zimbabwe will benefit from the automatic pass of the Organization of Islamic Countries at the Council.
He also cites a recent article by Anne Bayefsky, telling how Syria fared at the Human Rights Council:
So here’s how the UPR rubber hit the road of crimes against humanity in Syria. On October 7, 2011, the Syrian vice-minister of foreign affairs and his entourage took their places in the Council chamber. And then the Cubans said: “the Syrian government is working for the human rights of its people.” The North Koreans said: “we commend Syria on its efforts taken to maintain security and stability.” The Iranians said: “we appreciate the efforts of the government of Syria to promote and protect human rights.” Ditto Sudan, Nicaragua, Venezuela, Algeria, Lebanon, China, Zimbabwe, Burma/Myanmar, and so on.  
Four days later, on behalf of the three countries charged with compiling recommendations, Mexico reported to the Council: “Syria received a total of 179 recommendations…It is a pleasure to inform you that 98 recommendations were accepted and 26 shall be considered.” 
Among the recommendations that "did not enjoy the support" of Syria were “immediately end attacks on peaceful protesters and bring violators to account,” “put an end to secret detentions” and “allow journalists to freely exercise their profession.” At the end of this stage of the UPR, the President of the Council turned to Syria and signed off with “I thank both you and your delegation for your participation in the UPR.” 
At the time, there were 2,600 dead Syrian citizens at the hands of their own government. And Assad got the message about the human rights bona fides of the UN.
In fact, just using the name "human rights" in an organization's title does nothing to ensure that it supports human rights. That appears to be the operating assumption of the New York Times.

Of course it's entirely possible that there's no reason to assume that the editors of the Times are naive. On successive days they've published an op-ed filled with bogus legal jargon written by a known anti-Israel activist and an editorial lacking in logical coherence. The only reason to publish both, short of editorial malfeasance, is that the New York Times is leading a campaign to "bash and demonize" Israel.

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