by Michal Navoth
Institute for Contemporary Affairs, founded jointly with the Wechsler Family Foundation
No. 601 May-June 2014
In June 2007, within one year of the time frame allotted in the aforementioned resolution,6 the HRC adopted resolution A/HCR/RES/5/1 entitled “Institution-building of the United Nations Human Rights Council.”7 This resolution, which provides comprehensive guidelines for the future work of the Council, refers to the UPR as one of its key elements. The Annex to resolution A/HCR/RES/5/1 (Annex) stipulates that a review be conducted in one working group (WG), chaired by the president of the Council and consisting of the 47 member states of the Council. Any UN member state can participate in the discussion with the state under review (SuR) at this point, whereas other relevant stakeholders, such as nongovernmental organizations (NGOs), may only attend the discussion without taking the floor.8
The WG is assisted by a group of three rapporteurs, known as the troika, which is responsible for facilitating the review. The selection of the troika for each review is done prior to each WG session via a lottery among members of the HRC and from different regional groups. Every SuR will have a different troika.9
The mechanism of the UPR was further refined during the review process through Resolution 16/2110 and decision 17/119.11 These two documents provided the required modifications of modalities for the review in the second and subsequent cycles.12 According to paragraph B(2) of Resolution 16/21,13 the second cycle of the review shall begin in June 2012.14 Its consecutive paragraph B(3) stipulates that the periodicity of the review for the second and subsequent cycles will be four and a half years, whereas there will be three sessions of the WG per year.15
Following Israel’s decision of March 201216 to sever all contact with the HRC, Israel did not attend the original session of the second UPR cycle17 when its review was scheduled for January 29, 2013. More recently, Israel did participate in its UPR, which was rescheduled for October 29, 2013. The purpose of this survey is to examine Israel’s attitude to the UPR as a reflection of its complex relations vis-a-vis the HRC and the inevitable question: Is there hope for change?
Although purported to be the top UN human rights body, the HRC, since its establishment, has been characterized by its obsessive bias, selectivity, discriminative attitude, and double standards. Like its discredited predecessor, the UN Commission on Human Rights, where member states did not seek to strengthen human rights but rather to protect themselves against criticism or to criticize others,18 electability to the HRC does not indicate respect for human rights by many of its members. In fact, its composition is indicative of the converse. Out of the 47 members, countries like Angola, China, Cuba, and Saudi Arabia – to name a few – have the world’s worst human rights records.19
The GA elects the 47 member states from five regional groups,20 an unofficial grouping system within the confines of the UN. With the exception of one group, the Western European and Other Group (WEOG), it is based on geographical breakdown. Sharing Western democratic values is a common denominator for members of the WEOG. Members of both the Asian and African regional groups form the majority of HRC members.21 Arab states in the Asian group rejected Israel’s admission to that group, Israel’s natural geographic regional group. The only option left available was the WEOG.
For decades, Israel was the only country excluded from a regional grouping. That anomaly began to change in May 2000. At that time, Israel became a full member, on a temporary basis (subject to renewal), of the WEOG in New York. Its membership in this body was granted permanent renewal in May 2004, but until recently that was in New York only.22 The WEOG barred Israel’s admission to its meetings in Geneva. As a result, Israel could not participate in the WEOG meetings prior to the HRC sessions that always take place in Geneva. That institutional flaw, which existed for far too long, meant that Israel did not have the same rights granted to the other 192 UN members, and contributed to the discriminatory attitude of the HRC. Under those circumstances, it was difficult for Israel to garner support in the political arena and to exert some influence on the HRC.23
Moreover, the state members, among them those governed by Islamic regimes and dictatorships, become the world’s judges of human rights, and the result is unavoidable. The decisions of the HRC are prone to politicization as demonstrated by the following examples pertaining to Israel. The HRC signals out the Jewish state routinely.
The HRC has adopted more resolutions condemning Israel than it has on the rest of the 192 states combined. While speaking at the end of May 2013,24 Israeli Deputy Foreign Minister Ze’ev Elkin said that 43 of the 103 HCR resolutions against individual countries were issued against Israel.25 Similarly, in its session of March 2013, the HRC adopted six resolutions against Israel and only four against all other countries.26 The HRC has had 19 regular sessions on human rights issues worldwide and six special sessions to condemn Israel.27
The HRC has a standing agenda that includes ten items.28 One of these items, Item 7, entitled “Human rights situation in Palestine and other occupied Arab territories,”29 is always, at every meeting, reserved specifically for condemning and criticizing Israel. Consequently, Israel is subject to an open-ended discussion of alleged violations against Palestinians. Former UN Secretary-General Kofi Annan, though a proponent of the HRC, referred to the obsession with the Israeli-Palestinian issue shortly after the inauguration of the HRC in 2006. The following quotation, attributed to Mr. Annan, can serve as Exhibit A:
As for the rest of the world, Item 4, entitled “Human rights
situations that require the Council’s attention,” is for all the other
192 states, should the situation in any of them be considered.31
Since 2006 and immediately following its inception, the HRC has sponsored several investigative bodies targeting Israel, including the Lebanon War (2006), Beit Hanoun (2008), the Gaza Conflict (2009), the Gaza Flotilla (2010), and Israeli Settlements (2012).32 The Fact-Finding Mission on Israeli Settlements was the last straw for Israel.
On March 22, 2012, by a vote of 36 in favor, 1 against (United States), and 10 abstentions, the HRC adopted Resolution 19/17 entitled “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan.”33 According to its paragraph 9, the HRC decided “to dispatch an independent international fact-finding mission, to be appointed by the President of the Human Rights Council, to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.”34
To protest that resolution, in March 2012, Israel decided to sever its ties with the HRC,35 or in the words of Ambassador Eviatar Manor, Permanent Representative of Israel to the United Nations in Geneva: “In March 2012, we said – ‘enough.’”36 As a result, Israel did not attend its review of the second cycle of the UPR scheduled for January 29, 2013.
At its organizational meeting, held on the same date (January 29, 2013), the HRC adopted without a vote its Decision OM/7/1, entitled “Non-cooperation of a State under review with the universal periodic review mechanism,” which states in Paragraph 5 that the HRC “decides to reschedule the universal periodic review of Israel, with a view to conducting it in 2013, for the seventeenth session of the Working Group on the Universal Periodic Review at the latest”37 [emphasis in the original]. Then, in his report pursuant to Decision OM/7/1, the President of the HRC specified the exact date of Israel’s participation: October 29, 2013.38 The President’s report referred to measures taken by him to urge Israel to resume its cooperation with the UPR and enumerated the letters he exchanged with Ambassador Manor.39
In June 2013, the Israeli ambassador wrote to the President of the HRC to re-affirm his intention to pursue “a diplomatic engagement with a view to positively resolve all outstanding issues in Israel’s complex relationship with the Human Rights Council.”40
In the weeks prior to the end of October 2013, negotiations between Israel and a group of friendly Western states took place regarding an outlined plan that would allow Israel to resume cooperation with the HCR. Israel did the right thing when it took advantage of the situation and conditioned the resumption of its engagement with the HRC. Israel announced two conditions for attending its UPR process41 which, if passed, would advance Israel’s interests and be considered a significant diplomatic victory.42 The first is joining, as a full member, the HRC’s WEOG.43 Second, Israel seeks to limit the use of HRC’s Item 7.44
The Western European states have agreed to remain silent during discussions convened under Item 7 for the coming sessions. Such a measure would, in effect, make the discussions meaningless. A unanimous vote would be required to reverse that limitation, which will prove very difficult to achieve. However, in regard to Israel’s joining the WEOG, a step that would require the unanimous approval of the group’s members, the European states gave only a promise rather than a binding commitment.45
Spain currently holds the presidency of the WEOG. On October 24, 2013, its ambassador to the HRC announced that Israel’s application to join the regional group would be at the top of its agenda when it convened early in November 2013.46 Immediately after the announcement, a meeting was held between Ambassador Manor and his counterparts from Britain, Canada, France, Germany, and the United States. They clarified to Manor that they would not go beyond issuing a positive statement until and unless Israel attended its review a few days later on October 29, 2013.47
In the same vein, German Foreign Minister Guido Westerwelle wrote in a personal letter to Israeli Prime Minister Benjamin Netanyahu on October 25, 2013, “Israel’s participation in the review will create the best conditions for its being accepted into the Western European and Others Group.”48 Westerwelle acknowledged Israel’s difficult position in the HRC and emphasized Germany’s efforts to keep Israel from being unfairly singled out in that body, but he also warned of severe consequences in the event that Israel refuses to attend its review.49 The UPR can only function if it is truly universal. Thus, a boycott of its review process in October 2013 could have exposed Israel to international criticism as well as blame for creating a precedent that human rights abusers such as Iran, Syria, and North Korea might follow. Finally, on October 27, 2013, Prime Minister Netanyahu decided that Israel would resume its cooperation and attend its rescheduled review.50
The review itself is divided into three stages. First, there is an interactive dialogue between the SuR and other UN member states. This takes place in the WG during the two-week sessions and from the second cycle it lasts for three and a half hours. It is at this stage that any UN member state can make comments and/or recommendations and pose questions to the SuR. The troika may collate issues or questions to be transmitted to the SuR to ensure that dialogue is conducted in an orderly fashion.
The format of the outcome of the review is a report, which is adopted at the second stage. Half an hour is allocated for the adoption of the report, and this takes place within the first two weeks of the review, but no earlier than forty-eight hours after the state is reviewed. The troika, with the involvement of the SuR and assistance from the Office of the High Commissioner for Human Rights (OHCHR), prepares the outcome report. It is an actual summary of the proceedings of the review process composed of the questions, comments, and recommendations made by states to the SuR, as well as the latter’s responses. It also contains conclusions and/or recommendations. Lastly, at the third stage, the outcome report is adopted by the plenary session of the HRC.55
The WG on the UPR held its seventeenth session from October 21 to November 1, 2013. The review of Israel was held at the 14th meeting on October 29, 2013. Ambassador Manor headed the Israeli delegation. At its 19th meeting held on November 1, 2013, the WG adopted the report on Israel.56
What can be inferred from the last passage is that Israel does not
seek to be above the law and is cooperating with the human rights
mechanisms with a view to foster and advance human rights in its own
country. As such, it does not mean that Israel, like any other state,
should not be held responsible for any violations of human rights.
However, what it does mean is that when applying human rights standards
to Israel, they must apply equally.58
The national report is based on a wide range of consultations of government ministries and agencies and addresses recommendations that Israel has agreed to adopt or take upon itself since its first UPR in 2008, as well as many others.59 Israel referred to its first UPR because, as a follow-up, when the time comes for the second review, the state is required to provide information regarding its implementation of the recommendations received at the preceding review.60
Israel’s national report is structured around three chapters.61 The first chapter relates to normative and institutional developments. Most notably is the ratification by Israel in 2012 of the UN Convention on the Rights of Persons with Disabilities (CRPD). The ratification also signifies a milestone in the promotion of a disability rights agenda in Israel during the last decade. It should be noted that since the submission of Israel’s previous national report in 2008, it has enacted an additional 9 sets of regulations mandating accessibility to all existing and new public buildings and services.62
The second chapter displays progress and best practices in the promotion and protection of human rights by Israel. The chapter enumerates a long list of rights and the respective achievements. Among others, it mentions gender-based equality; minority rights; combating racism, discrimination and anti-Semitism; ensuring the rights of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community; the fight against trafficking in persons; protection of persons subjected to detention; developments in the protection of children’s rights; religious freedoms; the right to an adequate standard of living; the right to education; the right to family life; and the right to health.63
The third chapter presents challenges, constraints, and opportunities. Inter alia, it reiterates that since its establishment, Israel had to balance a difficult security situation with democratic traditions and respect for human rights; i.e., to strike a delicate balance between the security needs of Israeli civilians and the human rights of those suspected of participating in terrorist activities. Israel is committed to precedents set by the Supreme Court which determined that the war on terrorism should not be waged outside the law but within the framework of the law, using means that the law affords to the security forces.64
Article 100 of the national report further expounds that matter while referring to current legislative work on the Fight against Terrorism Bill 5771-2011. The draft bill includes comprehensive consideration of many core legal issues in the fight against terrorism. Its goal is to offer law enforcement authorities effective tools in thwarting terrorist organizations and terrorism in general, but in a balanced manner that will protect human rights and due process.65
Article 102 refers to the Turkel Commission of Inquiry’s Second Report submitted in February 2013 as a “reflection of Israel’s continuing commitment to advancing the rule of law in the fight against terrorism.”66 On June 14, 2010, the government of Israel established a public Commission of Inquiry that was mandated, among other responsibilities, to assess whether the mechanisms for investigating complaints raised in relation to violations of the laws of armed conflict conforms with Israel’s obligations under the rules of international law. The Commission’s report concluded that Israel’s mechanisms for examining claims of violations of the rules of the law of armed conflict generally comply with its obligations under international law. The Prime Minister decided to establish a professional team to study the recommendations of the report to suggest specific modes of action.67
The national report refers in this chapter to the issue of combating illegal immigration. In recent years, and in growing numbers since 2008, the influx of people moving through the Israeli-Egyptian border poses challenges for Israel’s society and economy. The problem of Israel is much more complicated than that of other developed countries, not only because of the unique geostrategic location of the country and the current political instability surrounding its frontiers, but also due to the history of the Jewish people. During the Holocaust, many Jews were asylum seekers. Consequently, Israel is highly sensitive to this humanitarian problem. Israel was among the first countries to adopt and ratify the 1951 Refugee Convention. Israel applies the convention, as well as all other human rights instruments to which it is a party, to ensure that no person is returned to a country where he might face serious threats to his life. This undertaking is derived from Israel’s obligations under international law and from the commitment of the government of Israel to protect the human rights of these individuals.
Again, a delicate balance is required and this time between the human rights of migrants and the national interests of the state of Israel, as illustrated by a recent decision rendered by the Israel Supreme Court, sitting as the High Court of Justice (HCJ) (HCJ 7146/12 Naget Serg Adam et. al. v. The Knesset et. al. [16.9.2013]). The ruling pertained to a petition that was filed by several NGOs concerning the constitutionality of the Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment no. 3) 5772-2012. The amendment entered into force in January 2012, as a temporary provision. Under Section 30A of the Law, as amended, a person that enters Israel illegally can be held in detention, subject to certain exceptions, for a period of up to three years. An extended panel of nine judges ruled that holding persons for such a long period constitutes a material violation of their rights such as those enshrined in Basic Law: Human Dignity and Liberty, and is thus unconstitutional. The Court therefore annulled Section 30A.68
The last part of this chapter is dedicated to the main challenge Israel is facing, i.e., its relations with the Palestinians. While referring to the resumption of the direct negotiations for peace, initiated by U.S. Secretary of State John Kerry, as “a welcome step,” the national report concludes: “Israel is willing to make painful compromises towards peace and will act to achieve this through negotiations conducted on the basis of mutual recognition, signed agreements and cessation of violence.”69
Once more,77 in the present review, the issue of major concern to some delegations was administrative detention. It should be noted that Denmark, while remaining concerned about the practice, recognized an overall decline in the use of administrative detention.78 Responding to questions from several countries concerning the matter, a member of the Israeli delegation, Shai Nitzan, then Deputy Attorney General (Special Affairs), said that administrative detention was a lawful security measure under international law. It was used as a preventive measure against persons posing serious threats to the security of the West Bank and Israel and its population.79 Israel also noted that it had given consideration to the recommendations from its first UPR, and as part of the on-going review of the criminal law framework applicable in the West Bank, it shortened the detention periods and raised the age of majority.80
Another issue that had been raised by several delegations related to claims of torture by the Israel Security Agency (ISA). Israel responded that the ISA was responsible by law for the safeguarding of Israel’s security from terrorist threats, espionage, and other threats. The ISA operated in accordance with the ruling of the HCJ, and especially with a judgment rendered in 1999 forbidding the use of physical force during interrogations.81 Although an offense including a prohibition of torture had not yet been legislated in Israel, acts and behaviors defined as torture under Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) constituted offenses under the Israeli penal law.82
On another matter, regarding the Palestinians, in response to an advance question by Norway, it was noted that Israel took significant steps to promote the standard of living of Palestinians and cooperated with the Palestinian Authority. The United Nations Development Program (UNDP) development index demonstrates that the Palestinian Authority is above the regional average. Israel was also working to improve the movement of people and goods in the West Bank. As of today, only a few checkpoints exist in place, which are normally open.83
Nitzan responded to comments made by Denmark, France, Italy, and others, noting the price tag offenses aimed at Palestinians. He referred to law enforcement efforts undertaken against such violence and mentioned that in September 2012, the Minister of Public Security had announced the establishment of a new police unit intended to combat nationalist crimes. Similarly, effort is being made to prevent criminal activity.84
Again,85 various aspects of the situation in the Gaza Strip were raised. Addressing comments on that issue, the head of the delegation indicated that the Gaza Strip had not been under Israeli control since 2005. Consequently, as had also been affirmed in 2007 by the Israeli HCJ, Israel does not have a general duty to ensure the welfare of the population in Gaza. Hamas had violently seized control over the Gaza Strip and turned it into a terrorist entity. Israel’s obligations towards the Gaza Strip emanate from the continuing state of armed conflict with the Hamas terrorist organization. Israel added that due to the security situation, and in light of the obligations under international law, it had imposed a legal naval blockade to prevent weapons transfer to Hamas. Through the land passages that were open, the policy of Israel was that all goods could enter the Gaza Strip freely, except those that could endanger Israel’s security. Moreover, Israel had allowed entry into its territory for humanitarian purposes such as urgent medical care and was active in facilitating projects funded and implemented by the international community.
Israel had hoped that its disengagement from Gaza would lead to a reduction in terrorist attacks and ultimately to a comprehensive peace agreement with the Palestinians. Regrettably, attacks on Israeli civilians were still frequent.86
It is noteworthy that whereas in the previous report, Germany, while acknowledging the humanitarian situation resulting from border closures, was the only country to mention and condemn the missile attacks from Gaza against Israel;87 none of the countries referring to Gaza in the present report mentioned that Israel was a target of terrorist attacks. Speaking generally, during the interactive dialogue, with the exception of Sweden, all the states failed to refer to the clashing interests that Israel has faced throughout its existence, i.e., human rights and the struggle against terrorism. In its recommendation,88 Sweden recommended that Israel minimize the use of administrative detention and fully respect human rights while countering terrorism.89 In fact, Sweden’s reference only implies an awareness of the complicated reality Israel is facing. Thus, no delegates actually commended Israel for its efforts to protect human rights in light of a difficult security situation. Two out of the few delegates that mentioned the issue in the previous UPR appreciated Israel for coping with that challenge.90
The main recommendations are as follows:
Ratification of Treaties. Like in the previous UPR,92 it was recommended that Israel ratify the Optional Protocol (OP) to CAT, and also ratify the Rome Statute of the International Criminal Court (ICC). Several delegations recommended that Israel would not only ratify the Rome Statute, but also fully align its national legislation with all of the obligations under the Statute. It was also recommended that Israel ratify/adhere to the Additional Protocols I and II to the Geneva Conventions of 12 August 1949 [sic].93 Related to the last recommendation is the following recommendation, also made in the previous report.94
Fulfillment of Israel’s Obligations under International Humanitarian Law. Recommendations under this section call on Israel to abide by the provisions of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.95
Administrative detention. This issue was also included in the present UPR.96 While some delegations recommended to end the practice of administrative detention and to release all the administrative detainees, the approach of Denmark and France was more realistic when it recommended that Israel ensure that administrative detention complies with the latter’s international commitments.97
HRC and human rights mechanisms. A few delegations recommended that Israel fully cooperate with the HRC, including implementation of its resolutions, as well as with other human rights mechanisms.98
Promotion of equality and non-discrimination. Some delegations recommended providing equal rights to all citizens of Israel, allowing them equal access to health, employment, education, justice, property, and housing rights. It seems that Canada was aware of the progress accomplished by Israel and recommended that it consider additional measures to improve the status of women in the various communities with a view to promote equality in law and practice.99
The West Bank and Gaza Strip. In a similar manner to the first UPR,100 some delegations of Arab countries, along with delegations from other countries, recommended that Israel end the occupation of the Palestinian territories under Israeli control since 1967.101 Similarly, some delegations recommended that Israel end all settlement activity.102 A few delegations referred to the advisory opinion of the International Court of Justice (ICJ) on the West Bank security barrier. Some delegations recommended that Israel accept and fully implement it, while others recommended that Israel demolish the barrier.103 A few delegations, including that of Egypt, recommended that Israel lift the blockade on the Gaza Strip. Egypt also added in its recommendation to stop any Israeli attacks on the Gaza Strip.104 Under the circumstances mentioned above, Egypt’s recommendation is utterly misleading.105 Other delegations recommended that Israel guarantee the freedom of movement of goods and persons into and out of the Gaza Strip.106
Palestinians’ Rights. Recommendations included in this section refer to the right of the Palestinian people to self-determination.107 Whereas in the previous UPR, only Egypt and Sudan recommended that Israel respect the Palestinians’ right to self-determination and the establishment of their own independent state with Jerusalem as its capital, in the second UPR, in addition to those two states, other delegates mentioned Jerusalem in this context.108 In so doing, all those delegates referred to the ultimate political goals of the Palestinians. Some delegates recommended that Israel take practical measures to protect and respect the rights of Palestinian refugees. All of them referred to the latter’s right of return and a few also added that Israel should adequately compensate the refugees.109
The concluding recommendation includes a comment that the recommendations listed under that paragraph do not enjoy Israel’s support because they contain the term “State of Palestine.” Israel considers that the term “State of Palestine” was adopted as a result of General Assembly resolution 67/19110 and at the request of the PLO delegation to the UN. Israel reiterates that the term does not imply the existence of a sovereign State of Palestine, nor recognition as such. Israel further elaborated, noting that the issue of statehood, as well as all other permanent status issues, would be determined between the parties only as part of a process of direct bilateral negotiations.111
To sum up Israel’s participation at its second UPR, it is worthwhile to cite Israel’s delegation member Nitzan: “Israel is open to constructive criticism and looked forward to working within the framework of the UPR mechanism, conducted on the basis of universality, impartiality and professionalism, so that the shared goal of promoting and enhancing human rights can be fully achieved.”112
After completing its diplomatic effort waged for several months,116 the Israel Ministry of Foreign Affairs could not ignore the symbolic meaning of the date, November 29, in the UN’s involvement with Israel. In its website it referred both to November 29, 1947, when the GA adopted Resolution 181 calling for the establishment of two states in Palestine (the Jewish state became the State of Israel), and the recent event of November 29, 2013. In the latter, the UN corrected a historical injustice. After decades of discriminatory exclusion, Israel became, as of January 1, 2014, a member of the WEOG in Geneva. This long overdue decision brought Geneva in line with a decision made in 2000 to admit Israel into the WEOG in New York.117
Beyond the fact that Israel’s exclusion was contrary to the UN’s own ideals as enshrined in the preamble of its Charter – “equal rights…of nations large and small”118 – and thus Israel’s admission upholds the equality principle guaranteed under the UN Charter, it is significant to underline the implications of Israel’s membership in the WEOG in Geneva. It is more than a formality. Elections to UN bodies happen through a nation’s participation in regional groupings.119 That move is critical for Israel’s continued involvement in the HRC and can be marked as a milestone toward the normalization of Israel’s treatment in the UN system. This does not mean, however, that the bias against Israel is over and particularly not within the HRC in the immediate future.
When being admitted to the WEOG in Geneva, Israel won the support of Western democratic countries, but it still has to face the hatred of the Arab and Muslim members. However, it will be more difficult for them to isolate and condemn Israel due to the latter’s membership in the WEOG and the limitation on the use of Item 7. These steps, coupled with Israel’s ability to speak out, will gradually mitigate the politicization of the HRC with its goal to make Israel culpable. Israel will confront the remaining injustices and it will do so as a full member of a regional group, the one to which it is best suited. Such a status will enable Israel to participate in shaping policies, and more importantly, it will enable the Israeli voice to be heard. Israel will be able not only to defend its position, but also to obtain support for its diplomatic endeavors. Thus, for the long run, the change is expected not only within the HRC, but also from Israel’s fellow states at the UN and its bodies.
To be sure, Israel’s admission to the WEOG was made possible after Israel agreed to attend its rescheduled UPR and thus to resume ties with the HRC. When presenting its national report, Ambassador Manor said: “The delegation hoped that Israel’s appearance before the universal periodic review would go a long way to restore equality and fairness regarding Israel in Geneva.”120 The challenge of changing the attitude towards Israel should be faced not only by the UPR mechanism or the HRC, but also by the UN system in its entirety.
No. 601 May-June 2014
- Although purported to be the top UN human rights body, the Human Rights Council (HRC), since its establishment, has been characterized by its obsessive bias, selectivity, discriminative attitude, and double standards. The HRC singles out Israel routinely.
- The Universal Periodic Review (UPR) is an innovative mechanism under the auspices of the HRC. It involves a review of the human rights records of all 193 UN member states once every four and a half years.
- Following Israel’s decision of March 2012 to sever all contact with the HRC, Israel did not attend the original session of the second UPR cycle.
- Israel came to its second UPR, rescheduled for October 2013, with strong reservations regarding the HRC, but with respect for the UPR process, belief in the importance of its universality, with great pride in its achievements, and openness to constructive criticism.
- After decades of discriminatory exclusion, Israel became, as of January 1, 2014, a member of the Western European and Others Group (WEOG) in Geneva. Although this move is critical for Israel’s continued involvement in the HRC, it does not mean that the bias against Israel is over and particularly not in the immediate future.
The Universal Periodic Review (UPR) and the Human Rights Council (HRC)
The Universal Periodic Review (UPR) is a process under the auspices of the Human Rights Council (HRC). It was created through the UN General Assembly (GA) on March 15, 2006, by resolution A/RES/60/251, which established the HRC itself.1 It is a mechanism that involves a review of the human rights records of all 193 UN member states2 once every four and a half years.3 The UPR provides an opportunity for each state to declare what actions have been taken to improve the human rights situations in their countries and to fulfill their human rights obligations. The ultimate goal of this evolving process is to improve human rights conditions around the globe and to address human rights violations wherever they occur.4 It is an innovative process that has no parallel.5In June 2007, within one year of the time frame allotted in the aforementioned resolution,6 the HRC adopted resolution A/HCR/RES/5/1 entitled “Institution-building of the United Nations Human Rights Council.”7 This resolution, which provides comprehensive guidelines for the future work of the Council, refers to the UPR as one of its key elements. The Annex to resolution A/HCR/RES/5/1 (Annex) stipulates that a review be conducted in one working group (WG), chaired by the president of the Council and consisting of the 47 member states of the Council. Any UN member state can participate in the discussion with the state under review (SuR) at this point, whereas other relevant stakeholders, such as nongovernmental organizations (NGOs), may only attend the discussion without taking the floor.8
The WG is assisted by a group of three rapporteurs, known as the troika, which is responsible for facilitating the review. The selection of the troika for each review is done prior to each WG session via a lottery among members of the HRC and from different regional groups. Every SuR will have a different troika.9
The mechanism of the UPR was further refined during the review process through Resolution 16/2110 and decision 17/119.11 These two documents provided the required modifications of modalities for the review in the second and subsequent cycles.12 According to paragraph B(2) of Resolution 16/21,13 the second cycle of the review shall begin in June 2012.14 Its consecutive paragraph B(3) stipulates that the periodicity of the review for the second and subsequent cycles will be four and a half years, whereas there will be three sessions of the WG per year.15
Following Israel’s decision of March 201216 to sever all contact with the HRC, Israel did not attend the original session of the second UPR cycle17 when its review was scheduled for January 29, 2013. More recently, Israel did participate in its UPR, which was rescheduled for October 29, 2013. The purpose of this survey is to examine Israel’s attitude to the UPR as a reflection of its complex relations vis-a-vis the HRC and the inevitable question: Is there hope for change?
Although purported to be the top UN human rights body, the HRC, since its establishment, has been characterized by its obsessive bias, selectivity, discriminative attitude, and double standards. Like its discredited predecessor, the UN Commission on Human Rights, where member states did not seek to strengthen human rights but rather to protect themselves against criticism or to criticize others,18 electability to the HRC does not indicate respect for human rights by many of its members. In fact, its composition is indicative of the converse. Out of the 47 members, countries like Angola, China, Cuba, and Saudi Arabia – to name a few – have the world’s worst human rights records.19
The GA elects the 47 member states from five regional groups,20 an unofficial grouping system within the confines of the UN. With the exception of one group, the Western European and Other Group (WEOG), it is based on geographical breakdown. Sharing Western democratic values is a common denominator for members of the WEOG. Members of both the Asian and African regional groups form the majority of HRC members.21 Arab states in the Asian group rejected Israel’s admission to that group, Israel’s natural geographic regional group. The only option left available was the WEOG.
For decades, Israel was the only country excluded from a regional grouping. That anomaly began to change in May 2000. At that time, Israel became a full member, on a temporary basis (subject to renewal), of the WEOG in New York. Its membership in this body was granted permanent renewal in May 2004, but until recently that was in New York only.22 The WEOG barred Israel’s admission to its meetings in Geneva. As a result, Israel could not participate in the WEOG meetings prior to the HRC sessions that always take place in Geneva. That institutional flaw, which existed for far too long, meant that Israel did not have the same rights granted to the other 192 UN members, and contributed to the discriminatory attitude of the HRC. Under those circumstances, it was difficult for Israel to garner support in the political arena and to exert some influence on the HRC.23
Moreover, the state members, among them those governed by Islamic regimes and dictatorships, become the world’s judges of human rights, and the result is unavoidable. The decisions of the HRC are prone to politicization as demonstrated by the following examples pertaining to Israel. The HRC signals out the Jewish state routinely.
The HRC has adopted more resolutions condemning Israel than it has on the rest of the 192 states combined. While speaking at the end of May 2013,24 Israeli Deputy Foreign Minister Ze’ev Elkin said that 43 of the 103 HCR resolutions against individual countries were issued against Israel.25 Similarly, in its session of March 2013, the HRC adopted six resolutions against Israel and only four against all other countries.26 The HRC has had 19 regular sessions on human rights issues worldwide and six special sessions to condemn Israel.27
The HRC has a standing agenda that includes ten items.28 One of these items, Item 7, entitled “Human rights situation in Palestine and other occupied Arab territories,”29 is always, at every meeting, reserved specifically for condemning and criticizing Israel. Consequently, Israel is subject to an open-ended discussion of alleged violations against Palestinians. Former UN Secretary-General Kofi Annan, though a proponent of the HRC, referred to the obsession with the Israeli-Palestinian issue shortly after the inauguration of the HRC in 2006. The following quotation, attributed to Mr. Annan, can serve as Exhibit A:
Whether their meetings coincided with the
Lebanese war, or not, they have tended to focus on the Palestinian
issue, and of course, when you focus on the Palestinian-Israeli issue,
without even discussing Darfur and other issues, some wonder what is
this Council doing? Do they not have a sense of fair play? Why should
they ignore other situations and focus on one area?30
Since 2006 and immediately following its inception, the HRC has sponsored several investigative bodies targeting Israel, including the Lebanon War (2006), Beit Hanoun (2008), the Gaza Conflict (2009), the Gaza Flotilla (2010), and Israeli Settlements (2012).32 The Fact-Finding Mission on Israeli Settlements was the last straw for Israel.
On March 22, 2012, by a vote of 36 in favor, 1 against (United States), and 10 abstentions, the HRC adopted Resolution 19/17 entitled “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan.”33 According to its paragraph 9, the HRC decided “to dispatch an independent international fact-finding mission, to be appointed by the President of the Human Rights Council, to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.”34
To protest that resolution, in March 2012, Israel decided to sever its ties with the HRC,35 or in the words of Ambassador Eviatar Manor, Permanent Representative of Israel to the United Nations in Geneva: “In March 2012, we said – ‘enough.’”36 As a result, Israel did not attend its review of the second cycle of the UPR scheduled for January 29, 2013.
At its organizational meeting, held on the same date (January 29, 2013), the HRC adopted without a vote its Decision OM/7/1, entitled “Non-cooperation of a State under review with the universal periodic review mechanism,” which states in Paragraph 5 that the HRC “decides to reschedule the universal periodic review of Israel, with a view to conducting it in 2013, for the seventeenth session of the Working Group on the Universal Periodic Review at the latest”37 [emphasis in the original]. Then, in his report pursuant to Decision OM/7/1, the President of the HRC specified the exact date of Israel’s participation: October 29, 2013.38 The President’s report referred to measures taken by him to urge Israel to resume its cooperation with the UPR and enumerated the letters he exchanged with Ambassador Manor.39
In June 2013, the Israeli ambassador wrote to the President of the HRC to re-affirm his intention to pursue “a diplomatic engagement with a view to positively resolve all outstanding issues in Israel’s complex relationship with the Human Rights Council.”40
In the weeks prior to the end of October 2013, negotiations between Israel and a group of friendly Western states took place regarding an outlined plan that would allow Israel to resume cooperation with the HCR. Israel did the right thing when it took advantage of the situation and conditioned the resumption of its engagement with the HRC. Israel announced two conditions for attending its UPR process41 which, if passed, would advance Israel’s interests and be considered a significant diplomatic victory.42 The first is joining, as a full member, the HRC’s WEOG.43 Second, Israel seeks to limit the use of HRC’s Item 7.44
The Western European states have agreed to remain silent during discussions convened under Item 7 for the coming sessions. Such a measure would, in effect, make the discussions meaningless. A unanimous vote would be required to reverse that limitation, which will prove very difficult to achieve. However, in regard to Israel’s joining the WEOG, a step that would require the unanimous approval of the group’s members, the European states gave only a promise rather than a binding commitment.45
Spain currently holds the presidency of the WEOG. On October 24, 2013, its ambassador to the HRC announced that Israel’s application to join the regional group would be at the top of its agenda when it convened early in November 2013.46 Immediately after the announcement, a meeting was held between Ambassador Manor and his counterparts from Britain, Canada, France, Germany, and the United States. They clarified to Manor that they would not go beyond issuing a positive statement until and unless Israel attended its review a few days later on October 29, 2013.47
In the same vein, German Foreign Minister Guido Westerwelle wrote in a personal letter to Israeli Prime Minister Benjamin Netanyahu on October 25, 2013, “Israel’s participation in the review will create the best conditions for its being accepted into the Western European and Others Group.”48 Westerwelle acknowledged Israel’s difficult position in the HRC and emphasized Germany’s efforts to keep Israel from being unfairly singled out in that body, but he also warned of severe consequences in the event that Israel refuses to attend its review.49 The UPR can only function if it is truly universal. Thus, a boycott of its review process in October 2013 could have exposed Israel to international criticism as well as blame for creating a precedent that human rights abusers such as Iran, Syria, and North Korea might follow. Finally, on October 27, 2013, Prime Minister Netanyahu decided that Israel would resume its cooperation and attend its rescheduled review.50
Israel’s Participation at its UPR Process
According to paragraph 15 of the Annex to resolution 5/151 and paragraph 5 of the Annex to resolution 16/21,52 documents were issued for the review of Israel.53 For the purpose of our analysis, we will focus only on the first source on which the review is based: the national report submitted by Israel (national report).54The review itself is divided into three stages. First, there is an interactive dialogue between the SuR and other UN member states. This takes place in the WG during the two-week sessions and from the second cycle it lasts for three and a half hours. It is at this stage that any UN member state can make comments and/or recommendations and pose questions to the SuR. The troika may collate issues or questions to be transmitted to the SuR to ensure that dialogue is conducted in an orderly fashion.
The format of the outcome of the review is a report, which is adopted at the second stage. Half an hour is allocated for the adoption of the report, and this takes place within the first two weeks of the review, but no earlier than forty-eight hours after the state is reviewed. The troika, with the involvement of the SuR and assistance from the Office of the High Commissioner for Human Rights (OHCHR), prepares the outcome report. It is an actual summary of the proceedings of the review process composed of the questions, comments, and recommendations made by states to the SuR, as well as the latter’s responses. It also contains conclusions and/or recommendations. Lastly, at the third stage, the outcome report is adopted by the plenary session of the HRC.55
The WG on the UPR held its seventeenth session from October 21 to November 1, 2013. The review of Israel was held at the 14th meeting on October 29, 2013. Ambassador Manor headed the Israeli delegation. At its 19th meeting held on November 1, 2013, the WG adopted the report on Israel.56
A Summary of the Proceedings
Presentation by Israel
The duality of Israel’s approach to the HRC is best illustrated in Ambassador Manor’s remarks introducing the national report. “The Israeli delegation comes to its second UPR with strong reservations regarding the Human Rights Council,” he said. “The discrimination against, and the unfair treatment of, Israel continues.” Manor continued, referring to Israel’s appearance on October 29 in the HRC undergoing its UPR:
It was not an easy decision to make.
Israel made its decision because we respect UN resolutions, human rights
in general and human rights mechanisms in particular. I will continue
my efforts to restore our relations with the Council and the Office of
the High Commissioner for Human Rights. But Israel’s unfair treatment
must come to an end….We come to the UPR with respect to the process,
belief in the importance of its universality and cooperative nature, and
with great pride in our achievements. We are certainly not perfect, and
we believe the UPR, as well as our periodic reports to the core human
rights treaty bodies, will result in further improvement in the
protection and promotion of human rights in Israel.57
The national report is based on a wide range of consultations of government ministries and agencies and addresses recommendations that Israel has agreed to adopt or take upon itself since its first UPR in 2008, as well as many others.59 Israel referred to its first UPR because, as a follow-up, when the time comes for the second review, the state is required to provide information regarding its implementation of the recommendations received at the preceding review.60
Israel’s national report is structured around three chapters.61 The first chapter relates to normative and institutional developments. Most notably is the ratification by Israel in 2012 of the UN Convention on the Rights of Persons with Disabilities (CRPD). The ratification also signifies a milestone in the promotion of a disability rights agenda in Israel during the last decade. It should be noted that since the submission of Israel’s previous national report in 2008, it has enacted an additional 9 sets of regulations mandating accessibility to all existing and new public buildings and services.62
The second chapter displays progress and best practices in the promotion and protection of human rights by Israel. The chapter enumerates a long list of rights and the respective achievements. Among others, it mentions gender-based equality; minority rights; combating racism, discrimination and anti-Semitism; ensuring the rights of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community; the fight against trafficking in persons; protection of persons subjected to detention; developments in the protection of children’s rights; religious freedoms; the right to an adequate standard of living; the right to education; the right to family life; and the right to health.63
The third chapter presents challenges, constraints, and opportunities. Inter alia, it reiterates that since its establishment, Israel had to balance a difficult security situation with democratic traditions and respect for human rights; i.e., to strike a delicate balance between the security needs of Israeli civilians and the human rights of those suspected of participating in terrorist activities. Israel is committed to precedents set by the Supreme Court which determined that the war on terrorism should not be waged outside the law but within the framework of the law, using means that the law affords to the security forces.64
Article 100 of the national report further expounds that matter while referring to current legislative work on the Fight against Terrorism Bill 5771-2011. The draft bill includes comprehensive consideration of many core legal issues in the fight against terrorism. Its goal is to offer law enforcement authorities effective tools in thwarting terrorist organizations and terrorism in general, but in a balanced manner that will protect human rights and due process.65
Article 102 refers to the Turkel Commission of Inquiry’s Second Report submitted in February 2013 as a “reflection of Israel’s continuing commitment to advancing the rule of law in the fight against terrorism.”66 On June 14, 2010, the government of Israel established a public Commission of Inquiry that was mandated, among other responsibilities, to assess whether the mechanisms for investigating complaints raised in relation to violations of the laws of armed conflict conforms with Israel’s obligations under the rules of international law. The Commission’s report concluded that Israel’s mechanisms for examining claims of violations of the rules of the law of armed conflict generally comply with its obligations under international law. The Prime Minister decided to establish a professional team to study the recommendations of the report to suggest specific modes of action.67
The national report refers in this chapter to the issue of combating illegal immigration. In recent years, and in growing numbers since 2008, the influx of people moving through the Israeli-Egyptian border poses challenges for Israel’s society and economy. The problem of Israel is much more complicated than that of other developed countries, not only because of the unique geostrategic location of the country and the current political instability surrounding its frontiers, but also due to the history of the Jewish people. During the Holocaust, many Jews were asylum seekers. Consequently, Israel is highly sensitive to this humanitarian problem. Israel was among the first countries to adopt and ratify the 1951 Refugee Convention. Israel applies the convention, as well as all other human rights instruments to which it is a party, to ensure that no person is returned to a country where he might face serious threats to his life. This undertaking is derived from Israel’s obligations under international law and from the commitment of the government of Israel to protect the human rights of these individuals.
Again, a delicate balance is required and this time between the human rights of migrants and the national interests of the state of Israel, as illustrated by a recent decision rendered by the Israel Supreme Court, sitting as the High Court of Justice (HCJ) (HCJ 7146/12 Naget Serg Adam et. al. v. The Knesset et. al. [16.9.2013]). The ruling pertained to a petition that was filed by several NGOs concerning the constitutionality of the Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment no. 3) 5772-2012. The amendment entered into force in January 2012, as a temporary provision. Under Section 30A of the Law, as amended, a person that enters Israel illegally can be held in detention, subject to certain exceptions, for a period of up to three years. An extended panel of nine judges ruled that holding persons for such a long period constitutes a material violation of their rights such as those enshrined in Basic Law: Human Dignity and Liberty, and is thus unconstitutional. The Court therefore annulled Section 30A.68
The last part of this chapter is dedicated to the main challenge Israel is facing, i.e., its relations with the Palestinians. While referring to the resumption of the direct negotiations for peace, initiated by U.S. Secretary of State John Kerry, as “a welcome step,” the national report concludes: “Israel is willing to make painful compromises towards peace and will act to achieve this through negotiations conducted on the basis of mutual recognition, signed agreements and cessation of violence.”69
Interactive Dialogue and Responses by Israel
Statements were made by 73 delegations during the interactive dialogue.70 Nine states mentioned Israel’s failure to cooperate with the HRC or with the UPR. It is interesting to note that most of these states do not have diplomatic relations with Israel, nor do they have a reputation for observing human rights, to say the least.71 Yet, six states, most of them friendly to Israel, welcomed the resumption of its relations with the HRC.72 Several delegations mentioned Israel’s positive achievements with regard to its institutions and efforts in upholding human rights;73 others, while commending Israel or noting its progress, also made some comments.74 One of the Israeli accomplishments that is praised multiple times is its judicial system. Whereas in the interactive dialogue in the previous review, Austria acknowledged the important role of the Supreme Court in developing the scope of human rights protection,75 in the interactive dialogue of the second cycle New Zealand welcomed Israel’s independent judiciary.76Once more,77 in the present review, the issue of major concern to some delegations was administrative detention. It should be noted that Denmark, while remaining concerned about the practice, recognized an overall decline in the use of administrative detention.78 Responding to questions from several countries concerning the matter, a member of the Israeli delegation, Shai Nitzan, then Deputy Attorney General (Special Affairs), said that administrative detention was a lawful security measure under international law. It was used as a preventive measure against persons posing serious threats to the security of the West Bank and Israel and its population.79 Israel also noted that it had given consideration to the recommendations from its first UPR, and as part of the on-going review of the criminal law framework applicable in the West Bank, it shortened the detention periods and raised the age of majority.80
Another issue that had been raised by several delegations related to claims of torture by the Israel Security Agency (ISA). Israel responded that the ISA was responsible by law for the safeguarding of Israel’s security from terrorist threats, espionage, and other threats. The ISA operated in accordance with the ruling of the HCJ, and especially with a judgment rendered in 1999 forbidding the use of physical force during interrogations.81 Although an offense including a prohibition of torture had not yet been legislated in Israel, acts and behaviors defined as torture under Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) constituted offenses under the Israeli penal law.82
On another matter, regarding the Palestinians, in response to an advance question by Norway, it was noted that Israel took significant steps to promote the standard of living of Palestinians and cooperated with the Palestinian Authority. The United Nations Development Program (UNDP) development index demonstrates that the Palestinian Authority is above the regional average. Israel was also working to improve the movement of people and goods in the West Bank. As of today, only a few checkpoints exist in place, which are normally open.83
Nitzan responded to comments made by Denmark, France, Italy, and others, noting the price tag offenses aimed at Palestinians. He referred to law enforcement efforts undertaken against such violence and mentioned that in September 2012, the Minister of Public Security had announced the establishment of a new police unit intended to combat nationalist crimes. Similarly, effort is being made to prevent criminal activity.84
Again,85 various aspects of the situation in the Gaza Strip were raised. Addressing comments on that issue, the head of the delegation indicated that the Gaza Strip had not been under Israeli control since 2005. Consequently, as had also been affirmed in 2007 by the Israeli HCJ, Israel does not have a general duty to ensure the welfare of the population in Gaza. Hamas had violently seized control over the Gaza Strip and turned it into a terrorist entity. Israel’s obligations towards the Gaza Strip emanate from the continuing state of armed conflict with the Hamas terrorist organization. Israel added that due to the security situation, and in light of the obligations under international law, it had imposed a legal naval blockade to prevent weapons transfer to Hamas. Through the land passages that were open, the policy of Israel was that all goods could enter the Gaza Strip freely, except those that could endanger Israel’s security. Moreover, Israel had allowed entry into its territory for humanitarian purposes such as urgent medical care and was active in facilitating projects funded and implemented by the international community.
Israel had hoped that its disengagement from Gaza would lead to a reduction in terrorist attacks and ultimately to a comprehensive peace agreement with the Palestinians. Regrettably, attacks on Israeli civilians were still frequent.86
It is noteworthy that whereas in the previous report, Germany, while acknowledging the humanitarian situation resulting from border closures, was the only country to mention and condemn the missile attacks from Gaza against Israel;87 none of the countries referring to Gaza in the present report mentioned that Israel was a target of terrorist attacks. Speaking generally, during the interactive dialogue, with the exception of Sweden, all the states failed to refer to the clashing interests that Israel has faced throughout its existence, i.e., human rights and the struggle against terrorism. In its recommendation,88 Sweden recommended that Israel minimize the use of administrative detention and fully respect human rights while countering terrorism.89 In fact, Sweden’s reference only implies an awareness of the complicated reality Israel is facing. Thus, no delegates actually commended Israel for its efforts to protect human rights in light of a difficult security situation. Two out of the few delegates that mentioned the issue in the previous UPR appreciated Israel for coping with that challenge.90
Recommendations
During the interactive dialogue, delegations also made recommendations to Israel, which was to examine them and provide responses no later than the 25th session of the HRC in March 2014.91The main recommendations are as follows:
Ratification of Treaties. Like in the previous UPR,92 it was recommended that Israel ratify the Optional Protocol (OP) to CAT, and also ratify the Rome Statute of the International Criminal Court (ICC). Several delegations recommended that Israel would not only ratify the Rome Statute, but also fully align its national legislation with all of the obligations under the Statute. It was also recommended that Israel ratify/adhere to the Additional Protocols I and II to the Geneva Conventions of 12 August 1949 [sic].93 Related to the last recommendation is the following recommendation, also made in the previous report.94
Fulfillment of Israel’s Obligations under International Humanitarian Law. Recommendations under this section call on Israel to abide by the provisions of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.95
Administrative detention. This issue was also included in the present UPR.96 While some delegations recommended to end the practice of administrative detention and to release all the administrative detainees, the approach of Denmark and France was more realistic when it recommended that Israel ensure that administrative detention complies with the latter’s international commitments.97
HRC and human rights mechanisms. A few delegations recommended that Israel fully cooperate with the HRC, including implementation of its resolutions, as well as with other human rights mechanisms.98
Promotion of equality and non-discrimination. Some delegations recommended providing equal rights to all citizens of Israel, allowing them equal access to health, employment, education, justice, property, and housing rights. It seems that Canada was aware of the progress accomplished by Israel and recommended that it consider additional measures to improve the status of women in the various communities with a view to promote equality in law and practice.99
The West Bank and Gaza Strip. In a similar manner to the first UPR,100 some delegations of Arab countries, along with delegations from other countries, recommended that Israel end the occupation of the Palestinian territories under Israeli control since 1967.101 Similarly, some delegations recommended that Israel end all settlement activity.102 A few delegations referred to the advisory opinion of the International Court of Justice (ICJ) on the West Bank security barrier. Some delegations recommended that Israel accept and fully implement it, while others recommended that Israel demolish the barrier.103 A few delegations, including that of Egypt, recommended that Israel lift the blockade on the Gaza Strip. Egypt also added in its recommendation to stop any Israeli attacks on the Gaza Strip.104 Under the circumstances mentioned above, Egypt’s recommendation is utterly misleading.105 Other delegations recommended that Israel guarantee the freedom of movement of goods and persons into and out of the Gaza Strip.106
Palestinians’ Rights. Recommendations included in this section refer to the right of the Palestinian people to self-determination.107 Whereas in the previous UPR, only Egypt and Sudan recommended that Israel respect the Palestinians’ right to self-determination and the establishment of their own independent state with Jerusalem as its capital, in the second UPR, in addition to those two states, other delegates mentioned Jerusalem in this context.108 In so doing, all those delegates referred to the ultimate political goals of the Palestinians. Some delegates recommended that Israel take practical measures to protect and respect the rights of Palestinian refugees. All of them referred to the latter’s right of return and a few also added that Israel should adequately compensate the refugees.109
The concluding recommendation includes a comment that the recommendations listed under that paragraph do not enjoy Israel’s support because they contain the term “State of Palestine.” Israel considers that the term “State of Palestine” was adopted as a result of General Assembly resolution 67/19110 and at the request of the PLO delegation to the UN. Israel reiterates that the term does not imply the existence of a sovereign State of Palestine, nor recognition as such. Israel further elaborated, noting that the issue of statehood, as well as all other permanent status issues, would be determined between the parties only as part of a process of direct bilateral negotiations.111
To sum up Israel’s participation at its second UPR, it is worthwhile to cite Israel’s delegation member Nitzan: “Israel is open to constructive criticism and looked forward to working within the framework of the UPR mechanism, conducted on the basis of universality, impartiality and professionalism, so that the shared goal of promoting and enhancing human rights can be fully achieved.”112
Latest Developments and Conclusion
On November 6, 2013, ambassadors to Geneva of Australia, Canada, France, Germany, the United Kingdom, and the United States sent a letter to the UN’s institutions in Geneva and to the ambassador of Spain.113 In the letter, a copy of which was obtained by Ha’aretz, six ambassadors wrote that the time had come to bring Israel into the WEOG and emphasized that they supported Israel’s membership at the earliest opportunity.114 On November 29, 2013, Israel was invited to join the WEOG. The invitation was extended at the conclusion of a 48-hour silent procedure that allowed members of the WEOG to voice their reservations over Israel’s admission. No country objected.115After completing its diplomatic effort waged for several months,116 the Israel Ministry of Foreign Affairs could not ignore the symbolic meaning of the date, November 29, in the UN’s involvement with Israel. In its website it referred both to November 29, 1947, when the GA adopted Resolution 181 calling for the establishment of two states in Palestine (the Jewish state became the State of Israel), and the recent event of November 29, 2013. In the latter, the UN corrected a historical injustice. After decades of discriminatory exclusion, Israel became, as of January 1, 2014, a member of the WEOG in Geneva. This long overdue decision brought Geneva in line with a decision made in 2000 to admit Israel into the WEOG in New York.117
Beyond the fact that Israel’s exclusion was contrary to the UN’s own ideals as enshrined in the preamble of its Charter – “equal rights…of nations large and small”118 – and thus Israel’s admission upholds the equality principle guaranteed under the UN Charter, it is significant to underline the implications of Israel’s membership in the WEOG in Geneva. It is more than a formality. Elections to UN bodies happen through a nation’s participation in regional groupings.119 That move is critical for Israel’s continued involvement in the HRC and can be marked as a milestone toward the normalization of Israel’s treatment in the UN system. This does not mean, however, that the bias against Israel is over and particularly not within the HRC in the immediate future.
When being admitted to the WEOG in Geneva, Israel won the support of Western democratic countries, but it still has to face the hatred of the Arab and Muslim members. However, it will be more difficult for them to isolate and condemn Israel due to the latter’s membership in the WEOG and the limitation on the use of Item 7. These steps, coupled with Israel’s ability to speak out, will gradually mitigate the politicization of the HRC with its goal to make Israel culpable. Israel will confront the remaining injustices and it will do so as a full member of a regional group, the one to which it is best suited. Such a status will enable Israel to participate in shaping policies, and more importantly, it will enable the Israeli voice to be heard. Israel will be able not only to defend its position, but also to obtain support for its diplomatic endeavors. Thus, for the long run, the change is expected not only within the HRC, but also from Israel’s fellow states at the UN and its bodies.
To be sure, Israel’s admission to the WEOG was made possible after Israel agreed to attend its rescheduled UPR and thus to resume ties with the HRC. When presenting its national report, Ambassador Manor said: “The delegation hoped that Israel’s appearance before the universal periodic review would go a long way to restore equality and fairness regarding Israel in Geneva.”120 The challenge of changing the attitude towards Israel should be faced not only by the UPR mechanism or the HRC, but also by the UN system in its entirety.
* * *
1. G.A. Res. 60/251, U.N. Doc. A/RES/60/251 (March 15, 2006) available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/502/66/PDF/N0550266.pdf?OpenElement.
The resolution was adopted by a vote of 170 in favor, with 4 against: the United States, Israel, the Marshall Islands and Palau. Venezuela, Iran and Belarus abstained. See Draft resolution A/60/L.48 U.N.GAOR, 60th Sess., U.N. Doc. A/60/PV.72 (March 15, 2006), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/60/PV.72
2. South Sudan was granted membership of the United Nations on July 14, 2011, and subsequently added to the calendar by decision of the HRC Bureau. See Human Rights Council Universal Periodic Review (Second Cycle) http://www2.ohchr.org/SPdocs/UPR/UPR-FullCycleCalendar_2nd.doc
The calendar marked the 15th session (2013). This was the original schedule before it was rescheduled.
3. See infra note 15 and accompanying text.
4. http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx
5. http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx
6. Supra note 1, para. 5(e).
7. HRC Res. 5/1, U.N. Doc. A/HRC/RES/5/1 (June 18, 2007). See
http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_5_1.doc
8. Ibid., para. 18(a)–(c).
9. Ibid., paras.18(d)–19. See also, Basic facts about the UPR, http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx, UPR Process, http://www.upr-info.
org/-UPR-Process-.html.
10. U.N. Doc. A/HRC/RES/16/21 (April 12, 2011), available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.RES.16.21_en.pdf.
11. U.N. Doc. A/HRC/DEC/17/119 (July 19, 2011), available athttp://www.upr-info.org/IMG/pdf/a_hrc_dec_17_119_e.pdf. This decision is a “Follow-up to the Human Rights Council resolution 16/21 with regard to the universal periodic review.” See id.
12. Supra note 5.
13. Supra note 10.
14. Officially it started in May 2012 with the 13th session of the UPR Working Group. For the second cycle, see supra note 2. The first cycle of the UPR process was launched on April 2008 and was concluded in October 2011. For calendar of reviews for first cycle, see http://www.ohchr.org/EN/HRBodies/UPR/Documents/uprlist.pdf
15. Supra note 10. There were only two sessions in 2012. See supra note 2; http://www.upr-info.org/IMG/pdf/new_upr_modalities_second_cycle.pdf. See also paras 1-4 decision 17/119, supra note 11.
16. See infra note 35 and accompanying text.
17. In the first cycle Israel’s review took place on December 4, 2008. See also Michal Navoth, A State under Review: Israel and the Universal Periodic Review of the Human Rights Council, 3 The Israel Journal of Foreign Affairs 117 (2009).
18. Michal Navoth, From a UN Commission on Human Rights to a Human Rights Council: A Structural Change or Human Rights Reform? 1 The Jerusalem Review A Journal of Foreign Affairs 112, 116 (2006-2007).
19. Anne Bayefsky, The Goldstone Report and its UN Fatherland, 48 justice 15 (2011). For current membership of the HRC, see http://www.ohchr.org/EN/HRBodies/HRC/Pages/CurrentMembers.aspx. While mentioning the Commission on Human Rights, it should be noted that some observers contended upon the establishment of the HRC that the new Council might be even worse than the discredited Commission that it replaced. See Lisa Schlein, UN Human Rights Council Criticized For Politicization, Voice of America, November 26, 2006 available at http://www.unwatch.org/site/apps/nl/content2.asp?c=bdKKISNqEmG&b=1319279&ct=3268373
20. http://www.ohchr.org/EN/HRBodies/HRC/Pages/Membership.aspx
21. Bayefsky, supra note 19, at 15.
22. http://www.un.org/depts/DGACM/RegionalGroups.shtml. For further developments see infra note 117 and accompanying text.
23. Tovah Lazaroff , Israel hopes to reengage with UNHRC, Jerusalem Post, June 7, 2013, available at http://www.jpost.com/Diplomacy-and-Politics/Israel-hopes-to-reengage-with-UNHRC-following-2012-break-315794; Barak Ravid, Europeans discuss terms for Israel’s return to UN human rights council, Haaretz, October 24, 2013, available at http://www.haaretz.com/news/diplomacy-defense/.premium-1.554088
24. Lazaroff , supra note 23.
25. Approximately, half a year later, at the beginning of November 2013, according to information provided to the author of this survey by UN Watch, around 50% of the resolutions were against Israel; See also Bayefsky, supra note 19.
26. Irwin Cotler, Israel and the United Nations, Jerusalem Post, August 15, 2013, available at
http://www.jpost.com/Opinion/Op-Ed-Contributors/Israel-and-the-United-Nations-323252
27. http://www.ohchr.org/EN/HRBodies/HRC/Pages/Sessions.aspx
28. Under Ch. V(B) of resolution A/HCR/RES/5/1. Ch V is entitled: “AGENDA AND FRAMEWORK FOR THE PROGRAMME OF WORK.” See supra note 7.
29. Id.
30. Schlein, supra note 19; see also Bayefsky, supra note 19, at 15; Cotler, supra note 26.
31. See supra note 7.
32. The investigative bodies were as follows: Commission of Inquiry on Lebanon pursuant to
Human Rights Council resolution S-2/1, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/150/97/PDF/G0615097.pdf?OpenElement; High-Level Fact-Finding Mission to Beit Hanoun established under Council resolution S-3/1, available at http://www.refworld.org/docid/48cfa3a22.html; Committee of Independent Experts to monitor
compliance with the Goldstone Report (HRC Resolution13/9 Follow-up to the report of the United Nations Independent International Fact-Finding Mission on the Gaza Conflict, A/HRC/RES/13/9 (25 March 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.RES.13.9_AEV.pdf; fact-finding mission to investigate violations of international law resulting from the Israeli attacks on the flotilla that aimed to terminate Israel’s naval blockade of Gaza (HRC Resolution 14/1 The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy, A/HRC/RES/14/1 (2 June 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/RES.14.1_AEV.pdf .
See also Bayefsky, supra note 19, at 15; Anne Herzberg, Israel, stay away from the UN Human Rights Council farce, Haaretz, October 27, 2013, available at http://www.haaretz.com/opinion/.premium-1.554652 ; Anne Herzberg, NGO Monitor Submission to the UN Human Rights Council Independent International Fact-Finding Mission on the Israeli Settlements in the Occupied Palestinian Territory including East Jerusalem Pursuant to HRC Resolution 19/7, NGO Monitor, October 30, 2012, http://www.ngo-monitor.org/data/images/File/NGO_Monitor-Submission_to_the_Settlements_Fact_Finding_Committee.pdf
33. UN HRC Res. 19/17 U.N. Doc. A/HRC/RES/19/17 (April 10, 2012), available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_res_19_17.pdf
34. Id. As predicted, when almost a year later, on January 31, 2013, the fact-finding mission published its report, its findings turned out to be one-sided and demonstrated blatant bias. See: “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem” A/HR/C/22/63 (February 7 2013), available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-63_en.pdf. For an analysis of the report, see Alan Baker, Biased, Prejudiced, and Unprofessional: The UN Human Rights Council Fact- Finding Mission Report on Israeli Settlements, March 17, 2013, available at
http://jcpa.org/article/biased-prejudiced-and-unprofessional-the-un-human-rights-council-fact-finding-mission-report-on-israeli-settlements/
35. Cotler, supra note 26; Lazaroff , supra note 23. By letter dated May 14, 2012, the Government of Israel informed the President of the HRC of its decision to suspend its relationship with the Council, as well as with the Office of the High Commissioner for Human Rights. See http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A.HRC.20.13_AUV.pdf
36. Those words were part of Ambassador Manor’s statement when he headed the Israeli delegation to Israel’s UPR at the HRC on October 29, 2013, available at http://embassies.gov.il/UnGeneva/NewsAndEvents/Pages/Ambassador-Manor’s-statement—Review-of-Israel’s-Report-at-HRC.aspx; See infra
37. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/127/14/PDF/G1312714.pdf?OpenElement. Para. 6 of Decision OM/7/101 further stipulates that the HRC: “decides to consider the above approach a precedent to be applied to all similar circumstances of non-cooperation in the future.” [emphasis in the original]. See id. The question is whether or not this constituted “persistent non-cooperation” within the meaning of para. 38 of Resolution 5/1. See supra note 7.
38. Presentation of the report of the President of Human Rights Council submitted in accordance with Council decision OM/7/1 of 29 January 2013, available at http://www.ohchr.org/EN/HRBodies/HRC/Pages/Presentation.aspx
39. Id.
40. See supra note 36; see also infra note 57.
41. Barak Ravid, Germany to Netanyahu: Boycotting UN [human-M.N] rights council review will hurt Israel, Haaretz, October 27, 2013, available at http://www.haaretz.com/news/diplomacy-defense/.premium-1.554549.
42. Ravid, supra note 23.
43. Ravid, supra note 41. For discussion of the WEOG, see supra.
44. Ravid, supra note 41. For discussion of the Item 7, see supra.
45. Ravid, supra note 41; Ravid, supra note 23.
46. See infra.
47. Ravid, supra note 41.
48. The contents of the letter were obtained by Haaretz. See id.
49. Id.
50. Barak Ravid, Israel resuming cooperation with UN Human Rights Council, Haaretz, October 27, 2013, available at http://www.haaretz.com/news/diplomacy-defense/1.554711
51. See supra note 7.
52. See supra note 10.
53. In accordance with para. 15 of the Annex to resolution 5/1 and para.5 of the Annex to resolution 16/21, the following documents were issued for the review of Israel:
(a) A national report submitted/written presentation made in accordance with paragraph 15 (a) (A/HRC/WG.6/17/ISR/1); (b) A compilation prepared by the Office of the High Commissioner for Human Rights (OHCHR) in accordance with paragraph 15 (b) (A/HRC/WG.6/15/ISR/2, A/HRC/WG.6/17/ISR/2 and Corr. 1); (c) A summary prepared by OHCHR in accordance with paragraph 15 (c) (A/HRC/WG.6/15/ISR/3 and Corr.1 and A/HRC/WG.6/17/ISR/3). See infra note 56.
54. National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Israel [sic], U.N. Doc. A/HRC/WG.6/17/ISR/1 (October 28, 2013), available at http://lib.ohchr.org/HRBodies/UPR/Documents/Session15/IL/A_HRC_WG.6_17_ISR_1_Israel_E.doc
55. See supra note 7, paras. 21-26. See also supra note 5. On January 14, 2013, before the original date for its UPR, the HRC mandated the President to select the following group of rapporteurs (troika) to facilitate the review of Israel: Sierra Leone, Maldives, Venezuela (Bolivarian Republic of). See infra note 56.
56. Draft report of the Working Group on the Universal Periodic Review Israel, A/HRC/WG.6/17/L12 (November 1, 2013), available at http://www.upr-info.org/IMG/pdf/a_hrc_wg.6_17_l.13_israel.pdf
The final document will be issued under the symbol A/HRC/25/xx. See id.
57. Amb. Manor’s Statement – Israel’s UPR at the HRC available at http://embassies.gov.il/UnGeneva/NewsAndEvents/Pages/Ambassador-Manor’s-statement—Review-of-Israel’s-Report-at-HRC.aspx. The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. Currently there are ten human rights treaty bodies, see http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx. Israel is a party to the core human rights treaty bodies, and during the years 2009 to 2013 completed the examination by six treaty bodies, see Manor, supra note 57. Moreover, Israel hosted the Special Rapporteur on Freedom of Religion or Belief (January 2008); Special Representative for Children and Armed Conflict (February 2009); Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (November 2011); Special Rapporteur on Adequate Housing (February 2012); Program Officer in the Office of the Special Representative for the Secretary General for Children and Armed Conflict (January 2013). See also supra note 54, art. 9.
58. See also Cotler, supra note 26.
59. Supra note 54; Manor, supra note 57.
60. Supra note 7, para. 34.
61. Manor, supra note 57.
62. Supra note 54, arts. 2-8.
63. Supra note 54, arts. 21-91.
64. Manor, supra note 57; supra note 54, art. 99.
65. Supra note 54, art. 100.
66. Id., art. 102. The Commission was headed by former Israeli Supreme Court Justice Jacob Turkel. The exact title of the report: Public Commission to Examine the Maritime incident of
31 May 2010, Second Report Turkel Commission, available at http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website%20-%20hebrew.pdf
67. Supra note 56, art.19.
68. Supra note 54, 114-117.
69. Id., arts.118-119.
70. Supra note 56, art. 23.
71. Id., arts. 25, 33, 43, 48 (Tunisia), 56, 60, 77, 99, 108.
72. Id., arts. 31, 41, 42, 91, 112.
73. Id., arts. 34, 39, 53, 114.
74. Id., arts. 40, 57, 58, 76, 78, 82, 84, 86, 87, 90, 93, 95, 111, 113.
75. Navoth, supra note 17, n. 25 and accompanying text.
76. Supra note 56, art. 114.
77. Navoth, supra note 17, n. 32 and accompanying text.
78. Supra note 56, arts. 44, 52, 86, 92.
79. Id., art. 67.
80. Id., arts. 20, 75.
81. Id., art. 68.
82. Id., art. 69.
83. Id., arts. 62-63. The violations of Palestinian rights were raised by several delegations, see id. arts. 28, 36, 80.
84. Id., art. 130.
85. Navoth, supra note 17, n. 36, n. 38 and accompanying text.
86. Supra note 56, arts. 45, 47, 81, 122, 123, 125, 129.
87. Navoth, supra note 17, n. 37 and accompanying text.
88. See infra
89. Supra note 56, arts.137.133. In the previous UPR Sweden recommended that Israel intensify its efforts, and Mexico further recommended that Israel redouble its efforts to guarantee that human rights are respected in the struggle against terrorism. Navoth, supra note 17, at 127.
90. Navoth, supra note 17, at 122.
91. Supra note 56, art.137.
92. Navoth, supra note 17, at 125.
93. Supra note 56, arts.137.5-137.6, 137.8-137.12, 137.14-137.15.
94. Navoth, supra note 17, at 126.
95. Supra note 56, arts. 137.47-137.49, 137.161.
96. For the first UPR see Navoth, supra note 17, at 126-127.
97. Supra note 56, arts. 137.115-137.117, 137.119, 137.120, 137.123-137.125, 137.132.
98. Supra note 56, arts. 137.30-137.38, 137.40-137.45, 137.50, 137.51. For comparison with the first UPR see Navoth, supra note 17, at 127-128.
99. Supra note 56, arts. 137.53, 137.55, 137.58, 137.60, 137.85.
100. For the first UPR see Navoth, supra note 17, at 127.
101. Supra note 56, arts. 137.171-137.172, 137.175, 137.177, 137.180, 137.183, 137.186,
102. Id., arts. 137.151-137.154, 137.164, 137.170, 137.173-137.174, 137.179, 137.182, 137.184-137.185, 137.187, 137.190.
103. Id., arts. 137.148-137.151, 137.162.
104. Id., arts. 137.169, 137.176, 137.178, 137.181,
105. See supra notes 85-87 and accompanying text.
106. Supra note 56, arts. 137.214, 137.216, 137.217.
107. Id. arts. 137.206, 137.224, 137.225.
108. Id. arts. 137.167, 137.221-137.223. For the first UPR see Navoth, supra note 17, at 128.
109. Id. arts. 137.147, 137.155, 137.231-137.233.
110. G.A. Res. 67/19, U.N.Doc. A/RES/67/19 (December 4, 2012), available at http://unispal.un.org/UNISPAL.NSF/0/19862D03C564FA2C85257ACB004EE69B
111. Supra note 56, art.138.
112. Id., art. 22.
113. See supra notes 46-47 and accompanying text. The United States is not a member of any regional group, but attends meetings of the WEOG as an observer and is considered to be a member of that group for electoral purposes. See supra note 22.
114. Barak Ravid, Israel invited to join UN Human Rights Council’s Western nations group, Haaretz, November 29, 2013, available at http://www.haaretz.com/news/diplomacy-defense/1.560945
115. According to reports, in the preceding weeks of October and November 2013 most of the WEOG’s countries did not oppose Israel’s inclusion. Iceland, Ireland, Lichtenstein and Turkey were the only countries standing in the way of that initiative. See Anne Bayefsky, Europe, US pressuring Israel to endure discrimination at UN Human Rights Council, Jerusalem Post, October 27, 2013, available at http://www.jpost.com/Opinion/Op-Ed-Contributors/Europe-US-pressuring-Israel-to-endure-discrimination-at-UN-Human-Rights-Council-329832. See also Barak Ravid, Israel must be included in Western nations’ group on UN human rights council, allies say Haaretz, November 18, 2013, available at http://www.haaretz.com/news/diplomacy-defense/.premium-1.558730.
116. Ravid, supra note 41. Deputy Foreign Minister Ze’ev Elkin and Ambassador Aharon Leshno-Yaar, head of the Foreign Ministry’s international organizations department, led the negotiations for Israel. See supra note 50.
117. http://mfa.gov.il/MFA/InternatlOrgs/Issues/Pages/Israel-admitted-into-WEOG-at-HRC-29-Nov-2013.aspx.
118. https://www.un.org/en/documents/charter/preamble.shtml
119. Tovah Lazaroff, “Israel invited to join UN’s Western nations group in Geneva,” Jerusalem Post, December 1,2013, available at http://www.jpost.com/Diplomacy-and-Politics/Israel-invited-to-join-UNs-Western-nations-group-in-Geneva-333577
120. Supra note 56, art. 7.
Michal Navoth is an Israeli attorney. Among her fields of expertise is public international law. In this capacity she publishes in English and lectures in various local and international forums on subjects relating to legal aspects of the Arab Israeli Conflict, human rights and anti-Semitism and is a frequent commentator on events in Greece.
Source: http://jcpa.org/article/israels-relationship-un-human-rights-council/
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