The report, published by NGO Monitor, is an unprecedented source that should however be read attentively with a critical eye towards its evidently biased perceptions of the situation in the region. Less fortunately, it is clear that the report puts greater weight on the underlying critique that it has endeavoured to submit against the activities of human rights NGO in the region. Nevertheless, it bases this critique on factually flawed appreciations that are vastly unfounded, unqualified and based on flawed logic.
Inter alia, the report submits that “though claiming to promote universal human rights, these same NGOs have not pursued cases against Palestinian, Hezbollah, Syrian, or Iranian officials involved in terror.” It further holds with disdain that “as in other politicized NGO campaigns, these activities consistently draw an immoral equivalence between anti-terror operations and mass scale atrocities, minimize or omit the context of terror, exploit international legal terminology and rhetoric, level condemnations without providing proper bases or reliable evidence, and use incomplete, distorted, or inconsistent legal definitions.” Indeed, some harsh statements that reflect nothing from the reality in the field, and exemplify very clearly the standpoint of those that endeavoured to write the report.
Its executive summary announces that “Instead of engaging in debate and making the difficult choices of nation-states, such as how to weigh sovereignty and security concerns with human rights, these NGOs advance their political agenda regardless of the wider impact of their actions.” The report claims that NGOs working in the field are ” invest[ing] vast budgets in their public relations campaigns in order to identify Israel as a pariah state whose justice system refuses to punish violators of the most serious crimes.”
The report speaks of the lawsuits that NGOs have submitted transnationally but does not make note of the fact that the reason this is done is in an attempt to remedy the lack of judicial accountability, and challenge the cooperation between the judicial and executive arms, which has turned the Israeli Supreme Court into the face of the occupation and its principal mechanism for self-justification. The Israeli Supreme Court is known to consistentantly side with the government and the security services who use vague secret evidence and general security considerations to systematically violate human rights and international humanitarian law with complete impunity. Its decisions are unreasoned and its use of international law selective and manipulative (to take note only of a few of such judicial instances see here, here, here and here).
I wish to probe further into your contention that the Supreme Court of Israel consistently sides with the Israeli government and security services. I confess initially that I have not had the opportunity to review the Court’s judgments in Hebrew, and have only considered those published in English. However, these judgments includee notably the so-called “targeted killings” case – Public Committee against Torture in Israel et al. v. Government of Israel et al. of November 2006. That case was noteworthy for its conflation of proportionality standards in international humanitarian law and international humanitarian law, but also for its emphasis on using both branches of law to restrict the use of the IDF’s “targeted killings” policy. I would welcome further debate on the Supreme Court of Israel’s approach to international human rights law, and to Israel’s own Basic Law, which contains elements of human rights protection. A simple characterisation of the Court’s jurisprudence as pro-government, pro-IDF and anti-human rights may not do justice to its legacy and its current work. I say this as a scholar in international human rights law who has serious concerns about IDF policies and practices, and welcomes judicial activism in this regard.
Ms. Azarov claims that my report, “NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict,” is “biased” and “contains harsh statements that reflect nothing from the reality in the field” because it documents how human rights NGOs working in the region use EU taxpayer funds to clog European and US courts with suits intended to harass Israeli officials for engaging in measures to protect Israel’s civilian population. And because my report further documents how these same self-proclaimed “defenders of human rights” have not pursued similar cases against Palestinian, Hezbollah, Syrian, or Iranian officials involved in terror specifically aimed at the Israeli civilian population. Indeed, she cannot offer one example of these NGOs bringing suit on behalf of Israeli victims of terror or to end Palestinian “impunity”. She further argues that there is a “lack of judicial accountability” in Israel and that the “Israeli Supreme Court [is] the face of the occupation and its principal mechanism for self-justification.” These false statements ignore that NGOs have direct standing to bring cases to the Court (an unprecedented example of NGO power) and use that power to bring tens of cases each year which get a full and fair hearing. Moreover, Ms. Azarov omits the many cases where the Court has done its utmost to balance security needs with human rights.
Rather than offering a substantive critique with which we can engage in a productive debate on whether NGOs are exacerbating the Arab-Israeli conflict, Ms. Azarov is unable to provide specific examples to back her claims, instead only offering blanket condemnations and sweeping generalities. How disappointing.
I am glad that this post has drawn some further attention, as well as from those who undertook to concoct the report. I hope that in this brief address I am able to respond to some of the concerns (those of a purely legal character) that have been brought up so far. I would be happy to discuss matters, answer any further queries or clarify misunderstandings that are presented to me in the future.
First, I will begin by noting that the Israeli High Court of Justice (HCJ) translates only a very miniscule fragment of its decisions, and it has further been proven empirically (without needing to refer to any kind of conspiracy in this regard) that only the most adequate and appropriate, if you will, judgments are translated. The “Targeted Killings” judgment has been recalled, and I would agree that this is indeed some of the Court’s more welcomed work as far as the use and application of international legal norms is concerned. Nevertheless, it is with great misfortune that I acknowledge the present reality in which the vast majority of the Court’s judgments are of an inadmissibly laconic nature whereby the government’s position is confirmed and the violation of the most fundamental rights is offhandedly dismissed, often with no mention at all of the relevant human rights provisions (whether those found in the international legal instruments that it has ratified or the one’s grounded in its own Basic Law).
To note only one of many problems presented by the structure and content of Israel’s Basic Law, would be to shed light on its inherently discriminatory nature and the fact that there are no provisions guaranteeing the basic prohibition on discrimination. Further, the Court has upheld on various occasions that these guarantees apply only to Israeli nationals who can be enlisted for national service in the IDF, i.e. only the Jews. In any case, this should not be of any relevance to the situation at hand, as Israel´s human rights obligations are clearly defined in the provisions of the International Covenant on Civil and Political Rights as well as customary international law.
In sum, it would indeed be reckless to say that the Court is anti-human rights or even pro-IDF. However, its jurisprudential practice brings about various tenuous conclusions with regards to its judicial independence, the legal validity of its decisions and puts its ability to ensure that those accountable for the grave violations of international humanitarian law and human rights procured under the occupation regime in the Palestinian Territories are brought to justice under a very alarming question mark. To present you with only one of many examples, whilst soldiers continue to recklessly shoot and kill children across the West Bank, incidents that recur on a weekly basis, the Military Police refuses to open investigations, and when it does so the ineffectiveness and ineffeciency thereof is systematically short of the most basic international human rights law obligation to investigate, prosecute and compensate.
Whilst one could still wonder whether any type of welcomed judicial activism can be deduced from the Court’s work, many Israeli academics and scholars of the highest ranks have long acknowledged and openly declared that the Court’s current position has de facto contributed to the aggravations in human rights and humanitarian law violations in the occupied Palestinian territories. More over, since ex-President of the HCJ Justice Aaron Barak is no longer on the bench, the protection of human rights and the enforcement of the state’s obligations towards the occupied population has become in many cases a lost struggle.
One of the boldest examples of this condition can be witnessed, inter alia, in the case work of Physicians for Human Rights, who work primarily with medical patients from the Gaza Strip in dire need of urgent, life saving, medical treatment and are often left to die at the Erez Crossing between Gaza and Israel. To say the very least, the closure upheld by the Israeli occupying forces in the Gaza Strip has brought the whole population of the Strip to a state of complete and utter humanitarian dispair, generating the gravest violations of international humanitarian law and human rights.
The underlying problem with the report that has initiated some of these discussions, is that it may profess to conduct a legal assessment of the nature of certain NGO work, but what it really does is present a politicised perspective on the purely legal work of some NGO. Conceding that the landscape also holds other which work under a more political mandate, to say that the pure legal work of those NGO that very simply use international human rights and humanitarian law to advocate for the protection of the occupied population and uphold the obligations that Israel has as a Belligerent Occupant under the international law of occupation is political goes a very long way.
Incredulously, Ms Azarov appears to be claiming that the Israeli Supreme Court does not address human rights because it only translates a “miniscule” amount of its opinions into English and that its opinions are invalid because they are only issued in Hebrew. This argument, if it is her intent, is silly at best, if not shocking. Regardless of whether its opinions are translated into English, Israel’s Supreme Court has issued HUNDREDS of opinions addressing issues of IHL and provide Palestinians with far greater access to the courts than probably any other Western democracy. For more information, please see the following report: http://www.ngo-monitor.org/article/ngos_propogandize_at_un_periodic_review_of_israel
One last point: Ms Azarov claims that our work presents a “politicized perspective”. Yet, the choice of language and level of hyperbole in her review and subsequent comments surely reveal her “politicized perspective” as well. I invite readers to this website to look at NGO Monitor’s material and draw their own conclusions.