22 March 2007 - Report of the CERD

The UN Committee on Elimination of Racial Discrimination (CERD) released its conclusions on Israel earlier this month. The report seemed to generate little media attention, which I took as a sign that it probably portrayed Israel in a positive light. After reading the report, it is clear that the committee found relatively little to condemn in Israel’s domestic practices, though it offered some important criticisms.

There are a few fundamental problems with the CERD report. One is that it takes certain conclusions about international law for granted, though these conclusions were guided by anti-Israel constituencies at the UN. The report urges Israel to adopt the International Criminal Court’s judgment on the “wall,” for example. It also rejects Israel’s stance that the occupied territories are disputed territory.

By far, however, the worst part of the CERD report is its recommendation that Israel implement a Palestinian “right of return,” on the basis that the current law is discriminatory. The issue is hardly so simple! The committee recognizes Israel’s right to establish the Jewish character of the state, but somehow does not seem to consider the effect that a Palestinian right of return would have on that character.

The CERD report also considers the human rights situation in the occupied territories, even though Israel argued that these were beyond the scope of CERD’s investigation into Israel itself. Some of the claims raised are valid; others, such as concerns about the effect of excavations near the Al-Aqsa mosque, have no basis in fact and show undue deference to the hysterical accusations of Israel’s enemies.

Finally, the report notes its concern about “the persistence of violence perpetuated by Jewish settlers, in particular in the Hebron area.” I know little about the Hebron situation, but today’s edition of Ha’aretz features an op-ed by Nadav Shragai that criticizes the way in which the settlers of Hebron are portrayed and points to some of the legal disabilities suffered by Jews who have chosen to live there.

There are always two sides to every story, though the two sides are not always equal and the midpoint between the two is not necessarily a neutral position. What I do know about Hebron leads me to believe that it is an example of Israeli occupation at its worst. At the same time, I believe that Jews should have a right to live there if they so choose, without fear, even under Palestinian sovereignty.

I recently received an e-mail announcing a competition for the best student international law paper on the legal aspects of the occupation of Hebron. The competition guidelines clearly indicate that the illegality of the Israeli presence in Hebron is a foregone conclusion; the suggested questions include such queries as “Israeli policy and actions in Hebron: Apartheid or Security?”

Without taking the side of the settlers, I feel instinctively that this approach to the issue exemplifies everything that is wrong about the approach of human rights activists to the Israeli-Palestinian conflict. The competition guidelines suggest that papers should only cover the past forty years, which leaves out the 1929 Hebron massacre, which was one of the events that shaped the conflict as we know it today.

It is my contention that while human rights abuses tend to arise in conflict situations, the context of that conflict has to be taken into account in evaluating the responsibility of each side for those abuses. We must investigate what Israel is doing to the Palestinians of Hebron that violates their human rights—but equally, we must ask whether Palestinians recognize the human rights of Jews in Hebron.

Let’s put it another way: human rights abuses occur, and the question of whether they have occurred and who is guilty of them is not open to creative interpretation. However, context is critical to the question of responsibility and punishment, and so we must allow the different sides to raise affirmative defenses, or to testify in mitigation of sentence (to borrow some criminal law terms I have picked up).

I must admit it is disappointing to see the list of organizations that are sponsoring the paper competition. The International Red Cross is perhaps no surprise, since it has a long history of anti-Israel bias; however, my own future employer, the Association for Civil Rights in Israel (ACRI), is among the sponsors. On the other hand, perhaps this is good, since in working for ACRI I’ll get a truly different perspective.

One thing the CERD report does not do is apply the term “apartheid” to Israel or its policies in the occupied territories. This is attributable to the fact that CERD is made up of a panel of independent experts, and not a bunch of political hacks specially selected by their home countries to pour invective on Israel. For that reason alone, the report deserves closer consideration by the Israeli government.