20 August 2007 - Judges in Jerusalem

The International Commission of Jurists (ICJ) has been sending an “Eminent Jurists Panel” around the world to study the human rights impact of counter-terrorism measures employed after 9/11. I had the opportunity today to hear the presentations of a number of Israeli human rights NGOs to the two visiting judges who are in Israel and the Palestinian territories to wind up the ICJ investigation.

I had the opportunity to review some of the ICJ documentation beforehand. In 2004, the ICJ issued the Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism. The Berlin Declaration spells out some noble ideals, but it seems to me that it sets the bar unrealistically high. How, for example, can states be expected not to discriminate somewhat on the basis of national origin when they may be facing the threat of terror groups from an enemy nation?

The list of jurists on the panel also concerned me. At least two of the seven have no place on a panel weighing human rights against counter-terrorism, in my view, because they enforce the law in countries (Egypt and Pakistan) that are not even slightly democratic and do not honor the civil and political rights of their citizens.

The presentations by the Israeli NGOs presented a number of accusations which were not probed by the judges, nor met with any evidence to the contrary. While the visiting judges are scheduled to meet with state attorneys, legal officers from the IDF and senior Israeli judges, the failure to honor the principle of audi alteram partem in today’s presentation created a skewed and superficial picture, in my view.

The issues that were discussed included Israel’s temporary law preventing “family reunification” by Arab citizens of Israel with Palestinian spouses living in the occupied territories; restrictions on Palestinian movement within and across the boundaries of the West Bank and Gaza; Israeli military accountability for the deaths of Palestinians and Arab citizens of Israelis; interrogation techniques used by Israelis on Palestinians in detention; procedural problems in Israeli military courts in the occupied territories; the continued responsibility of Israel for conditions in Gaza; the reduction in the number of permits granted to Gazans to travel to Israel for medical treatment; and the use of traffic violations to restrict the movement of Palestinians—many of whom merely wish to work—into Israel.

All of these issues, I felt, were important—but none of them could be considered without considering the context. Given the mandate of the panel, there was surprisingly little discussion of terrorism and counter-terrorism. I listened to one Palestinian rights advocate speak at length about Israeli violations in Gaza without once mentioning the ongoing bombardment of Israeli civilians with Qassam rockets.

To at least one of the presenters, such actions by Palestinians were not even illegitimate. “We are talking about people who are carrying out, in their own way, self-defense against the occupation,” she said. Another claimed that if Israel were allowed to kill terrorists in their homes, half of Israel’s population would be legitimate military targets, since most adult males serve in the IDF reserves.

In a similar vein, one group reported that half of all Palestinians killed by the IDF since the start of the second intifada had not been involved in fighting at the time they were killed. But what does that mean—and if they are part of a terror group, what difference does it make? When asked about targeting an armed person, one presenter actually said: “I don’t think taking a rifle is a reason to be targeted.”

Not every presentation was quite so slanted, and the problems raised are serious. However, there was little way to determine the truth of some of the allegations, and the discussion never complex explored moral and legal questions, except for the exchange about targeted killings. I wasn’t really sure how much preparation the judges had done, either, since at times their questions were pretty basic.

I was asked to take notes for the entire group, which I did, and a staffer from the ICJ specifically asked me to get quotes that would paint a picture or tell a story. I wasn’t sure what he meant, but I had the feeling he wanted the plaintive, earnest outrage of the human rights activists to come through. And what about the stories of victims of terror? Or the relief of millions of Israelis protected by the IDF?

Not once today did the discussion address the effectiveness of Israeli counter-terrorism tactics in protecting civilians on both sides. Nor did there seems much room for a strategic assessment of the positive gains of the Gaza disengagement. Some presenters acknowledged improvements in Israeli policies in response to human rights complaints but others claimed things had only gotten worse.

At various times, people used ideologically-charged language like “apartheid,” or accused Israel of using counter-terrorism policies for nefarious purposes like altering Israel’s internal demographic balance. Rarely did any human rights representative challenge the bizarre statements of some of their colleagues—though disagreement broke out over the precise structure of Israeli military courts.

I left the panel feeling rather dejected, knowing that my notes would be used to prepare a report that would likely be unfair to Israel and offer decontextualized, one-sided judgements. And I felt worried about the cumulative effect of such reports on Israelis’ regard for human rights themselves. Why, I wondered, was there no NGO in Israel that tried to offer an alternative perspective at these kinds of events?