Why Israel Fears the Facts: Reporting on Israel’s Human Rights Violations in the Occupied Palestinian Territory for the UN

[This is a review essay of Richard Falk, John Dugard, and Michael Lynk (with a foreword by Francesca Albanese), Protecting Human Rights in Occupied Palestine: Working Through the United Nations (Atlanta: Clarity Press, 2022).]

In early 2017, I received an invitation to speak at an event in Stockholm organized by the Swedish Institute for International Affairs (SIIA) to mark the fiftieth anniversary of Israel’s occupation of the West Bank and Gaza Strip. Or so I thought. But when the publicity materials were circulated a few months later, the event was billed as an analysis of the fiftieth anniversary of the 1967 Arab-Israeli War, with no mention in the title or abstract of Israel’s occupation, contrary to earlier exchanges with the organizers. When I questioned and challenged this, I was told by a senior researcher at SIIA that no one was disputing Israel’s occupation but this was the title and abstract for the event. If no one was disputing it then why, I asked, was SIIA deliberately trying to avoid using the term? I threatened to pull out of the event if the title and abstract were not changed to reflect the international consensus on the status of Palestinian lands occupied by Israel since 1967. I refused to participate in a discussion that shied away from using the term “occupation” which would imply that this (nearly) universally agreed international legal definition was in dispute and up for debate. Unfortunately, I was not successful in this endeavor; my concerns were brushed aside, the event was canceled, and no explanation (or apology) was offered.

The reason why I start this book review with this personal anecdote is to highlight that terms, definitions, and framings matter because they shape our understanding of the world and context for action. To me, there is something fishy going on when respectable research institutes such as the SIIA choose to “dilute” the title and abstract of an event by ignoring international law, UN resolutions, and even the foreign policy position of its own government, Sweden. Imagine an event in years to come on the anniversary of Russia’s invasion and occupation of Ukraine that did something similar. You can’t? No, neither can I.   

This is just one example, of which there are many, of how certain institutions and individuals deliberately avoid using terms and definitions that Israel does not approve of and loudly protests about. Whether these omissions are driven by ignorance, cowardice, or complicity, the outcome is the same: it helps to muddy the waters over the causes of the Israel-Palestine “conflict”. I deliberately use scare quotes around the word “conflict” because the situation is better understood as a struggle for Palestinian rights and self-determination against the settler colonial state of Israel which is employing brutal practices of counterinsurgency, military occupation, and apartheid policies to control, suppress and dispossess Palestinians. This understanding has recently been endorsed by human rights organizations such as Amnesty International, B’Tselem, and Human Rights Watch, as well as individual human rights experts, including the authors of this important book. Palestinians, including one of their most prominent human rights organizations, Al-Haq, have long understood their situation in this way; they are still waiting for the rest of the world to catch up with them.

 Israel’s occupation of the West Bank and Gaza Strip (including its illegal annexation of East Jerusalem) is one of the longest-running military occupations in modern history even though the right of Palestinians to self-determination is indisputably enshrined in international law and continually endorsed at the UN. Israel is the sole sovereign state in control over the whole territory from the Jordan River to the Mediterranean Sea; the existence of the Palestinian Authority established after the Oslo Accords (now rebranded as the State of Palestine, but still with no sovereign rights) does not change this basic fact. And yet, current geopolitical alliances, particularly the extensive Western support that Israel enjoys,[1] have blocked decolonization and have condemned and confined Palestinians into Bantustans subject to Israeli settler and army violence, repression, and de-development. And every year the situation gets worse. The UN (and its various bodies) is one of the few forums where Palestinian rights are recognized and supported while Israel is condemned for its violation of these rights, although little attempt is made to hold it accountable. This has turned various UN bodies into battlegrounds of bitter dispute particularly because Global South states consistently raise their voices and vote in support of Palestinian rights, while Western states vote against or abstain and the United States shelters Israel via its veto in the UN Security Council. It’s the same old story: the powerless supporting each other, while the powerful defend their own; birds of a feather flock together.

So it is hardly surprising to learn that there are few UN positions that provoke as much scrutiny and criticism as the UN Special Rapporteur on the situation for human rights in the Palestinian territories occupied since 1967 (hereafter UNSR PHR). Israel and its supporters greet every report and comment from these human rights experts with accusations of anti-Israel bias and of being motivated by anti-Semitism (even from those who are Jewish, such as Richard Falk). Protecting Human Rights in Occupied Palestine: Working Through the United Nations is therefore an illuminating book, written by three out of the past four UNSR PHR since 2001: John Dugard (2001-2008), Richard Falk (2008-2014), and Michael Lynk (2016-2022), with a foreword by the current postholder, Francesca Albanese (2022- )­—the first woman to hold the position. It provides a sobering cumulative account of Israel’s violation of Palestinian human rights over the past 22 years as documented in the reports to the UN Human Rights Council (UNHRC) written by Dugard, Falk, and Lynk, as well as eye-popping self-reflections on the obstructions and attacks they experienced, from within the UN system as well as from Israel and its allies. One among many memorable reminiscences in the book is where Falk recalls being called a “fruitcake” by John Bolton, a senior US ambassador to the UN (p.30)—a term of abuse that is surely more appropriate for a neoconservative hawk like him.

The book is divided into three main parts. Part one is made up of individual essays written by Dugard, Falk, and Lynk that summarize their experiences during their respective tenures. Part two consists of excerpts from their reports to the UNHRC, which highlight the most significant aspects of Israel’s violation of Palestinian human rights. The evidence meticulously documented and presented in these reports serves as a valuable record that many journalists, politicians, diplomats, and researchers (me included) rely on for information. Part three completes the book with individual essays by Dugard, Falk, and Lynk evaluating what they felt was accomplished during their mandates as well as reflecting on disappointments. Their joint concluding statement makes the argument that this prominent role has become an important vehicle for “normalizing previously taboo formulations” such as “settler colonialism” and “apartheid” to describe Israel and its regime of control over Palestinians (p.372). In her first report as UNSR PHR, Albanese broke another taboo by insisting: “In the occupied Palestinian territory, the term ‘colonies’ is more accurate than the term ‘settlements’, as the latter neutralizes their illegal character.”[2] I asked Albanese about Israel’s response to this and she told me: “There has been no specific reaction, but Israeli support groups have generally responded negatively, accusing me – as they have been doing against my predecessors and other reputable human rights monitors – of bias. It’s important to emphasize that using precise and accurate terminology is crucial for a well-informed discussion that can lead to a positive shift in the debate and contribute to the pursuit of justice and peace in the region.”[3]

Language is powerful because it (re)shapes our reality. Of course, these descriptions have been used for decades by Palestinians, foreign activists and academics. But when these terms are used by prominent international human rights experts with the UN stamp of approval, they have more of an impact and are symbolically significant because they reach a wider audience, can help to influence public opinion, and deepen the case for political and legal action against Israel. Albanese agrees: “I believe my mandate holds a significant role in challenging prevailing taboos and advancing a needed human-rights-inspired discourse.”[4] Therein lies the reason for Israel’s attacks on the expertise and objectivity of these postholders, as well as the UN mandate itself. 

The UN Special Rapporteur System and the Palestine Mandate

The mandate of the UNSR PHR was established in 1993 by the UN Commission on Human Rights (UNCHR), the precursor of the UNHRC. The UNHRC is a subsidiary body of the UN General Assembly and works closely with the UN Office of the High Commissioner for Human Rights (OHCHR). The UN General Assembly elects the 47 seats of the UNHRC, which are distributed among the UN’s five geopolitical regional groups: thirteen for Africa, thirteen for Asia, six for Eastern Europe, eight for Latin America and the Caribbean, and seven for the Western European and Others Group. This membership distribution means that this forum is one of the few places where the West and its allies are in the minority; it is important to bear this in mind when considering accusations that the UNHRC is biased against Israel.

Special rapporteurs (SRs) are “special procedures” of the UNHRC and serve a three-year term of office, which can be renewed for a second three-year term. SRs are independent experts with mandates to report on human rights from a thematic or country-specific perspective: they undertake visits, convene expert consultations, write reports, and engage in advocacy. OHCHR in-country offices support their activities. The ways in which SRs are selected have changed over the years: now the procedure is that candidates apply, a shortlist is interviewed by a consultative group of ambassadors that make a recommendation to the president of the UNHRC, which is then subject to a vote by the whole membership of the UNHRC.

The first special procedure was an ad hoc working group of experts established in 1967 to investigate the situation of human rights in apartheid South Africa. There are now forty-four thematic SRs (e.g., human rights of migrants, human right to food) and twelve country SRs (e.g., Myanmar, Somalia); they report directly to the UNHRC and to the UN General Assembly. More crucially, and this is what makes them so independent, they are not UN staff members and do not receive a salary. This leaves the office holders able to offer an independent voice unshackled by the diplomatic language and horse-trading that plagues the UN system.

States are obliged to cooperate with special procedures as a condition of UN membership, and particularly to allow mission trips to gather information for the two comprehensive reports SRs must prepare annually. But there are no institutional means to act against states that refuse access. Dugard was the last UNSR PHR permitted by Israel to visit the Occupied Palestinian Territory (OPT), and in this book, he reflects on how important these trips were, particularly for visualizing the evisceration of the West Bank caused by Israel’s numerous restrictions on Palestinian movement and daily life, the route of the Wall, and Israel’s colonies. He was also able to observe the cumulative and devastating impact of Israel’s blockade on Gaza over the period of his mandate: “I visited Gaza every year from 2001 to 2007 and saw its transformation from a bustling coastal territory to a besieged land whose people lived in fear of another Israeli offensive” (p.26).

Israel has blocked access to all subsequent UNSR PHRs. Falk was detained and deported on his first mission trip in December 2008, although he was able to visit Gaza via Egypt in 2012 (a route that was closed after the 2013 Egyptian coup). Neither Lynk nor Makarim Wibisono (UNSR PHR 2014-16) were allowed to visit the OPT; indeed, Wibisono resigned after only eighteen months in frustration at Israel’s refusal to cooperate with the mandate, despite its promise to do so if he was elected. Israel has also so far refused entry to Albanese, although she lived in East Jerusalem for many years as an UNRWA employee during the 2010s and witnessed the situation up close. This lack of access has made the UNSR PHR more dependent on the OHCHR in-country office as well as other organizations (Palestinian, Israeli, and international) that catalog Israel’s violations of Palestinian human rights—their essential role is recognized and appreciated by the authors.

The mandate of the UNSR PHR is to document Israel’s violations of Palestinian human rights in the OPT; it does not cover human rights violations perpetrated by either of the Palestinian governing authorities in the West Bank and Gaza nor any of the Palestinian armed groups that operate in the OPT (nor violations inside “the green line” by any party). However, Dugard, Falk, and Lynk did, on occasion, criticise the Palestinian Authority and Palestinian armed groups for human rights violations, despite this falling outside their mandate. Israel and its supporters argue that this limited mandate is further proof that the UNHRC is biased against Israel.

It is difficult not to conclude that Israel is making this criticism in bad faith, because even when the UNHRC undertakes investigations that include both Israel and Palestinian groups, such as the 2009 report of the UN Fact-Finding Mission on the Gaza Conflict (known as the Goldstone Report), Israel still refused to cooperate (the investigation team had to gain access to Gaza through the Rafah Crossing with Egypt).[5] Israel also rejected the Goldstone Report’s conclusions, which accused both Israel and Hamas of war crimes and possible crimes against humanity. Pressure from Israel and the US ensured that the report’s recommendations were not implemented.

The fall-out from the Goldstone Report—including Richard Goldstone’s decision to disown it—was a particularly murky and damaging affair but also representative of what happens when attempts are made to hold Israel accountable, whether Palestinian groups are included or not. In 2010, the Reut Institute, a think-tank created to provide “decision-making support” to the Israeli government, argued that the Goldstone Report was a “significant milestone” in what it termed the “delegitimization campaign” against Israel.[6] Reports by respected human rights experts and published under the rubric of the UN are therefore taken very seriously by Israel and its supporters, and this is the reason why they are attacked so vociferously. 

Why Israel and Its Supporters Are Trying to “Shoot the Messenger”

In 2014, I interviewed Falk and officials within UN agencies in the OPT, human rights activists in the OPT and Israel, and Palestinian and Israeli officials in order to understand the UNSR PHR role itself and the experience of undertaking it. All the people I interviewed regarded the role to be a good and necessary one (apart from the Israeli official who repeated the allegation that Falk was anti-Semitic and was unfazed by my response that Falk is Jewish). The post’s independence was particularly valued because it allowed postholders to offer factual evaluations unhindered by the threat of losing their jobs because of diplomatic pressure. Many UN officials in the OPT told me about their experiences of being scrutinized and attacked in ways that did not occur in other posts, and this drove them towards self-censorship.[7]

Similar disclosures are made in this book. Dugard reveals that he regrets refraining from using the term “apartheid” until January 2007, “prompted by a fear” that his reports would not be taken seriously (p.28). Falk reflects on the private messages of encouragement he received from UN officials during attacks on him although many were unwilling to go public with their support (p.35). And Lynk describes how he observed at close hand how some senior UN officials were reluctant to engage with the issue given the “sturm und drang” (storm and stress) that greeted every attempt to discuss Israel’s occupation and abuse of Palestinian human rights (p.50). Revelations like these offer a rare and disturbing (albeit unsurprising) peek behind the UN curtains.

Israel and its supporters expend a huge amount of time and energy attacking the UNHRC and those holding the post of UNSR PHR. But the UNHRC has no power to act, and Israel enjoys near impunity due to the US veto at the UN Security Council. So, why bother?

For one simple reason: Israel fears a potential change in international public and elite opinion, which could intensify and popularize calls for boycott, divestment, and sanctions. It is therefore targeting four main sites to shore up support and intimidate critics. The first is the Palestinian Boycott, Divestment, and Sanctions movement (BDS), which was founded in 2005 by Palestinian civil society groups. The BDS movement is gaining support worldwide, particularly by harnessing popular culture to reach a wider audience, with some high-profile supporters such as rock star Roger Waters and author Sally Rooney. The second target is states and political elites; Israel is pretty much guaranteed Western support but lacks similar endorsement from the Global South, which tends to recognize colonialism and apartheid when it sees it and so supports Palestinian rights. The third target is human rights organizations and human rights experts who bear witness to Israel’s violations, cataloging an ever-expanding dossier of potential war crimes and crimes against humanity. And the fourth target is international organizations such as the UN, the International Criminal Court, and the International Court of Justice, which can provide legal rulings, recommend sanctions, and initiate prosecutions.

To shore up international support, Israel is trying to control what the outside world sees in the OPT and how it talks about it. Towards this end, it has been refusing to issue or renew visas for international staff working in UN agencies, especially the OHCHR and UNOCHA, and (as mentioned above) it blocks entry for UNSR PHRs. It has been militarily targeting news agency buildings and attacking journalists in the OPT, including the high-profile May 2022 killing of Al Jazeera’s Shireen Abu Akhleh. It has been expelling and banning human rights experts, such as Human Rights Watch Israel and Palestine Director, Omar Shakir, in November 2019. It has banned six Palestinian human rights organizations as “terrorist organizations”, including Al-Haq and Defense for Children International, which are crucial sources of information about Israel’s human rights abuses for UNSR reports. And it has been smearing critics by accusing them of being driven by anti-Semitism.

Being accused of anti-Semitism is an odious experience that most people are understandably keen to avoid. There is no doubt that anti-Semitism is deeply embedded in Western societies, and there is a clear and urgent need for a strong coordinated response to it, as well as to other forms of racism. But equating criticism of Israel, particularly by Palestinians, with anti-Semitism is politically wrong and morally repugnant, not to mention intellectually vacuous. Nevertheless, it is happening with increasing regularity, particularly in Western countries that have adopted the International Holocaust Remembrance Alliance Working Definition of Antisemitism (IHRA WDA) because seven of the eleven examples of anti-Semitism relate to criticism of Israel. Again, there is a north-south divide on this issue: of the states that have adopted the IHRA WDA, nearly all are from Europe, Eastern Europe, and North America; very few have adopted it in the Global South. The United Nations has become the most recent battleground over this issue, with Israel and its supporters urging its adoption, with opposition by over one hundred human rights organizations.[8] It would be disastrous if the IHRA WDA became UN policy because it would effectively outlaw criticism of Israel and deny Palestinians the right to narrate their experiences of colonial violence and apartheid.

Why the UN Has a Special Responsibility to Decolonize Palestine

My one grouch with this very revealing book is that its title is misleading. Human rights in occupied Palestine are not being protected. As the authors themselves critically reflect upon, it is the lack of protection, Israel’s violation of them, and its impunity to do so that is the problem. And we know the reasons why: the US veto in the UN Security Council shields Israel, and other Western states vote against or abstain on votes to hold Israel accountable while states that support Palestinian rights are powerless to enforce Israel’s compliance despite constituting the majority of UN members. This is why allegations that the United Nations is biased against Israel and obsessed with the situation in the OPT are so astonishingly unmoored from reality.

Dugard, Falk, and Lynk easily counteract this accusation by explaining why the UN has a special responsibility to find a peaceful and just solution. When Palestine was a League of Nations mandate under the control of Britain, Palestinian rights to self-determination were violated because of the Balfour Declaration.[9] This initial injustice was compounded because of the failure of the 1947 UN Partition Plan, endorsed in General Assembly Resolution 181, which was supposed to lead to two separate states and a corpus separatum for Jerusalem. What happened instead was the creation of the state of Israel, the Nakba, and the obliteration of Palestine from the map. Lynk quotes from former UN Secretary-General Kofi Annan’s memoir in which he notes that because the Arab-Israeli War coincided with the creation of the United Nations, it has remained a “painful and festering sore … felt in almost every intergovernmental organ and Secretariat body” (p.48). It is common, but shameful, that important figures, including UN and Western government officials, speak out on this issue only after they have retired from these positions. The UN has failed the Palestinian people at every important juncture—including not using any pressure or force to implement Security Council Resolution 242 in the aftermath of the 1967 war, which demands that Israel leave the Arab lands it occupied. This has provided a propitious environment for Israel to breach its obligations as an occupying power, violate international humanitarian law with impunity, and commit war crimes.

The authors also give short shrift to the accusation that they are not impartial, objective experts. Nobel Peace Prize-winning anti-apartheid and human rights activist Archbishop Desmond Tutu once famously stated: “If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.” Israel and its supporters are trying to muddy the waters by deliberately mixing up objectivity and impartiality with neutrality. Lynk refers to this as sterile “both-sideism” (p.342) and, like Dugard and Falk, makes the case that being a human rights defender and advocate means criticizing those contravening human rights and taking a stand against the violator, particularly in a clear case of imbalance.

There is no doubt that Israel is alarmed that the reports by these UNSR PHRs prove that there is no “two sides” equivalency in this situation; rather, there is a hierarchy of power with a settler colonial state and occupier on top, and a population being colonized, occupied, and suffering severe violations of their human rights on the bottom. Albanese insists: “One fundamental taboo that demands dismantling is the portrayal of the ‘Israeli-Palestinian conflict’ as the result of mutual animosity or sectarian differences. Instead, it’s essential to recognize it as rooted in an enduring settler-colonial plan.”[10] International investigation commissions, of which there have been many, have been rightly criticized for offering Palestinians “false hope.”[11] Nevertheless, the UNSR PHR is an important role: it catalogs Israel’s violation of Palestinian human rights, provides factual information for advocates and activists, and helps to keep Palestine firmly on the agenda at the UN. This is why Israel and its supporters continually attack the position and its postholders, and why we must defend it and those who undertake it.