The Human Rights Council is failing the Palestinian people; here is how to change that

by Marc Limon, Executive Director of the Universal Rights Group Human rights institutions and mechanisms

The Human Rights Council has long cast an outsized gaze at events in the Occupied Palestinian Territories (OPT), and especially at the serious human rights violations committed by Israel, the occupying power. As of the end of 2020, the Council had adopted 70 resolutions on the human rights situation in the OPT, and held seven Special Sessions – far more than any other situation (the next most scrutinised situation is Syria, with 30 resolutions and five Special Sessions). But has this heavy and sustained scrutiny made any difference on the ground? Has the Council been able to secure improvements in the lives, rights and dignity of Palestinians?

Any objective observer would have to conclude that the answer to both questions is ‘no.’

Why is that?

One important reason is that the Council’s work on the OPT, under its infamous agenda ‘item 7,’ has long been premised on scoring geopolitical points, rather than on promoting and protecting the rights of Palestinians. Item 7 has tended to be used by the Organisation of Islamic Cooperation (OIC) as a vehicle to attack Israel and its backers in the West, while Western powers such as the United States and United Kingdom, have long used the presence of item 7 (which they rightly criticise for focusing attention on one single situation – over and above all others) as an excuse – a kind of ‘get out of jail free card’ – for refusing to engage in substantive discussions about the gross and systematic violations committed by their Middle-Eastern ally.

As these geopolitical games have played out since the Council’s establishment in 2006, the Palestinian delegation in Geneva has increasingly taken on the aspect of a spectator – used by one side (the OIC) and paid lip service by the other (the West).

Linked with this point is the second broad reason for the Council’s inability to influence – let alone shape – events in Palestine and Israel: namely, that the UN’s primary human rights body tends to focus its energies, in the OPT as in all country situations, on fighting fires rather than preventing them from breaking out in the first place – on reacting to crises and conflict rather than addressing their root causes.

Elsewhere in the world, such a preventative approach means placing less emphasis on ‘naming and shaming’ and establishing post-facto accountability mechanisms, and instead working to build the human rights resilience of the country concerned, through capacity-building and support for the implementation of human rights obligations and commitments. In OPT, as in Crimea and the occupied regions of Georgia, such resilience-building is not possible because of Israel’s military occupation. What is necessary, instead, is for the Council to speak with one voice about the root causes of conflict – namely the appalling treatment of the Palestinian people, the systematic violation of their right to self-determination and basic democratic rights (of around 6.5 million Palestinians living under Israeli occupation – in a chilling echo of apartheid South Africa – only around 1.5 million have the right to vote in Israeli elections), the violation of their right to freely and safely access places of worship, and illegal Jewish settlement building in the West Bank and in the Jordan Valley, supported by the Israeli army (the governing Likud party recently pledged to settle a further two million Jews in the West Bank, adding to the more than 620,000 already there).

It is true that the Palestinian delegation in Geneva has regularly tabled resolutions on these and other ‘root cause’ issues at the Human Rights Council (e.g., on settlement building, and self-determination). However, such resolutions have fallen victim to the politicisation of the question of Palestine at the Council, with key Western States able to avoid debate on the substance of the violations because they are tabled under ‘item 7.’

A few years ago, conscious that item 7 was actually working against their national self-interest, the Palestinian delegation agreed, as a follow-up to a December 2017 conference on the future of the Human Rights Council, to work with the EU and the OIC to begin transferring item 7 texts to item 2, in return for a fairer hearing among Western States. Unfortunately, politics once against got in the way of common sense. First, the Palestinian delegation moved (in March 2019) the ‘wrong’ resolution (the EU had expected them to move the resolutions on settlements or self-determination, and instead the Palestinians moved a more contentious text on ensuring accountability and justice). Partly as a result, the EU was not able to secure a common position on the – now – item 2 text, and the final vote count was actually worse than it had been under item 7 (between 2017 and 2020, the number of ‘yes’ votes has declined from 30 to just 22, while the number of ‘no’ votes and abstentions has increased). This marked a significant failure of statecraft on all sides (though especially from the EU – the United States was not a member during this period), with the principal victims of that failure being, once again, the Palestinian people.

30th Council Special Session

On 6 May 2021, Palestinians in East Jerusalem began to protest in anticipation of an Israeli supreme court decision on the eviction of six Palestinian families to make way for Jewish settlers. According to media reports, some of the protesters threw stones at Israeli police, who then stormed the compound of the Al-Aqsa Mosque. The violence occurred ahead of a planned march by far-right Jewish nationalists (later cancelled). On 10 May, Hamas gave Israel an ultimatum to withdraw its security forces from the Temple Mount complex. When that ultimatum expired, Hamas launched rockets against Israeli civilian areas. In retaliation, Israel began a campaign of airstrikes against Gaza. As a result of the violence, 242 Palestinians, including 63 children, and ten Israelis, including two children, were killed.

On 27 May, against a backdrop of inaction at the Security Council (due to the United States’ support for Israel’s ‘right to self-defence’), the Human Rights Council met in a Special Session to consider ‘the grave human rights situation in the Occupied Palestinian Territory, including East Jerusalem.’

In addition to the usual – and entirely appropriate – condemnation of police brutality, indiscriminate missile attacks, and Israeli bombing of civilian areas, promisingly, the session also revealed a keen awareness, on the part of UN leaders, States and NGOs, that the Council should focus more attention and energy on addressing the root causes of the conflict.

Opening the debate, the High Commissioner for Human Rights, Michelle Bachelet, argued that while Israel has the right to defend its citizens and residents, ‘Palestinians have rights too – the same rights.’ ‘They too have the right to live safely and freely in their homes, with adequate and essential services and opportunities, and with respect for their right to life and physical integrity. The lived reality of the occupation, however, is that they are systematically deprived of [these] fundamental rights.’

To her credit, the High Commissioner focused much of her statement on the root causes of the recent fighting. ‘Two main issues led to the rise in tensions,’ she said. First, ‘the imminent evictions of Palestinian families and their forced displacement in the neighbourhood of Sheikh Jarrah in occupied East Jerusalem, to make way for settlers,’ and second, the deployment of Israeli security forces’ at the Al Aqsa compound, ‘restricting access to thousands of worshippers during the last days of Ramadan.’ On several occasions, she reported, the security forces ‘used force against peaceful protesters and worshippers.’

The High Commissioner ended by welcoming the recently declared ceasefire, while making it clear that ‘unless the root causes of this violence are addressed, it will sadly be [only] a matter of time until the next round of violence commences, with further pain and suffering for civilians on all sides.’ ‘There must be,’ she continued, ‘a genuine and inclusive peace process to address these root causes and bring the occupation to an end. In any such processes and for any resulting agreements, the respect and protection of human rights must be fundamental, including accountability for past human rights violations and abuses. Only when human rights are fully respected and protected can trust start to be built between the various communities and a durable, lasting and just peace be achieved.’

Bachelet’s message was repeated by the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, speaking on behalf of the Special Procedures system. Lynk described repeated confrontations over the exercise of religious rights, and the sustained campaign of settler groups to evict Palestinian families from their homes, as being akin to ‘embers that have been smouldering for years and which ignited the latest violence.’

The Special Rapporteur recalled the UN’s repeated demands that Israel comply with its international obligations as the occupying power and cease all settlement activity, arguing that the occupation ‘has become indistinguishable from annexation.’

A former member of the Knesset (Israel’s parliament), and Chairman of the Arab Higher Committee in Israel, Mohammad Barakeh, also drew attention to long-term systematic human rights violations against Palestinians as being the root cause of the latest conflict. He recounted a history of violations and abuses of Palestinian rights, including different forms of discrimination, confiscation of land, restrictions on job opportunities, and arbitrary arrests. In particular, his intervention focused on the adoption, in 2018, of the ‘Nation State Bill,’ which, he said, seeks to deny Palestinian their right to self-determination, and serves to institutionalise Israeli State discrimination against the Palestinian people.

Such calls to urgently address the root causes of the conflict, within the framework of a two State solution and an end to the occupation, were repeated by many States, including Pakistan on behalf of the OIC, South Africa on behalf of the African Group, and Sweden on behalf of the Nordic States.

Civil society also urged the international community to look beyond the recent fighting and come to grips with the ‘upstream’ human rights violations that lie at the root of the crisis.

For example, the Cairo Institute for Human Rights said that the root causes of the violence can no longer be ignored, and highlighted that Palestinians have been forcefully displaced, strategically fragmented, and placed into a system of racial and ethnic domination amounting to apartheid. For its part, Human Rights Watch remarked that ‘we have been here before, and tragically, we will be here again, unless three things change,’ including an increased focus on root causes. In that regard, Human Rights Watch quoted UN Secretary-General Antonio Guterres, who said: ‘these horrific events did not arise in isolation. They must be viewed in the context of decades of military occupation […] and a failure to address the core issues at the heart of the conflict.’

The outcome resolution – politics as usual

Unfortunately, the resolution adopted at the end of the special session (tabled by Pakistan on behalf of the OIC, and Palestine), in line with calls made by the Minister of Foreign Affairs of Palestine, Riad Malki, as well as Egypt on behalf of the group of Arab States, focused solely on the need to investigate violations in the context of the most recent conflict, and to hold those responsible to account. In that regard, the Council decided, with resolution S.30/L.1, ‘to urgently establish an ongoing independent, international commission of inquiry […] to investigate […] all alleged violations of international humanitarian law and all alleged violations and abuses of international human rights law leading up to and since 13 April 2021.’

Operative paragraph one of the resolution does also call on the commission of inquiry to investigate the ‘underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.’ However, the rest of the resolution (including the specific mandate of the commission, set out in operative paragraph 2) fails to make any mention of root causes or what the international community might do to address them, suggesting that the reference in paragraph one was something of an after-thought.

As a consequence of this imbalance, the final resolution represents another missed opportunity for the Palestinian people, amongst a long history of missed opportunities.

Although Pakistan, speaking on behalf of the OIC during the debate, had ‘called on the Council to speak with one voice to ensure respect for basic human rights and dignity of the Palestinian people,’ the tactics the OIC employed in securing the resolution, and the content of the draft they tabled and negotiated (including the absence of any condemnation of Hamas’ rocket attacks, and the inclusion of a stipulation that the work of the commission of inquiry will be ‘ongoing,’ i.e., permanent), meant that any such unity of purpose became impossible. The resolution was eventually adopted with 24 in favour, 9 against and 14 abstentions.

Pragmatism and concern for human rights had once against been trumped by geopolitics and point-scoring. Western States, especially the US, which is expected to re-join the Council in 2022, had once again been given every excuse to dismiss the resolution and disengage from the Council’s work on the situation of human rights in the OPT.

What next?

The President of the Human Rights Council, Ambassador Nazhat Shameem Khan, will now move to appoint the members of the commission of inquiry. Irrespective of her choice, however, it is highly doubtful that the new mechanism will have any more impact, in terms of securing accountability for violations or securing justice for the Palestinian people, than did the nine previous commissions of inquiry/fact-finding missions on the OPT established since 2000 (one by the Commission on Human Rights and eight by the Council), or than has the Special Rapporteur on the situation in the OPT, which has been in permanent operation since 1993!

As the High Commissioner warned during the special session debate: ‘unless the root causes of this violence are addressed, it will sadly [only] be a matter of time until the next round of violence commences, with further pain and suffering for civilians on all sides.’ This, then, should be the Council’s focus. Addressing such ‘root cause’ human rights violations is, inter alia, what the Council was established to do, is mandated to do, and has the powers to accomplish. To fulfil that role, and thereby help promote and protect the rights of Palestinians in a meaningful way, States should, as soon as possible (before any further outbreak of violence, and before the Council loses further credibility), set aside political point-scoring and work together to produce strong consensus-based resolutions, to be tabled under items 2 or 4, that address things that all members of the Council can agree on, such as the inalienable right of the Palestinian people to self-determination, the importance of respecting and protecting holy sites and people’s freedom of religion or belief, and the fact that Israeli’s military occupation and the construction of Jewish settlements on Palestinian land represent a gross and systematic violation of the human rights of the Palestinian people – and push hopes for a two State solution, with Palestine and Israel living together, side-by-side and at peace, further and further away.

Featured image: Human Rights Council Special Session on Occupied Palestinian Territory, Palais des Nations. 27 May 2021. UN Photo by Violaine Martin

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