Holding court

Exclusive: Human rights lawyer Irwin Cotler plays prosecutor, defense and devil's advocate for Israel.

By HILARY LEILA KRIEGER
July 11, 2006 04:45
Holding court

irwin cotler 88.298. (photo credit: )

 
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Irwin Cotler is perched on a comfy couch alongside a low-lying coffee table at the Inbal Hotel in Jerusalem, but for the moment he has entered his own private courtroom. In his hands are reams of documents recording every government decision and High Court ruling on the issue of the Falash Mura, all evidence in his prosecution of the state, which he accuses of impeding Ethiopian Jewry's right to aliya. Though Cotler is technically speaking to a reporter, it wouldn't be accurate to call his discourse on the subject part of an interview; his 10 points detailing the government's broken pledge to bring the population to Israel immediately are rather an opening - or closing - argument made to the public. "Three-and-a-half years later we have a standing breach of the decision to bring the [remaining] Ethiopians pursuant to a government decision, number one," he begins. The remainder of the list is poured out in such rapid-fire succession that even the agile-minded advocate seems to have trouble keeping up with the flow of his thoughts. It includes a charge of lack of "equality before the law" - given the quotas applied to Ethiopians but not other immigrant groups - and lack of due process, for instance, since the review of their applications has been stalled for years. Perhaps he's so quick with his assertions now in an attempt to make up for lost time. Cotler, an international human rights lawyer who has worked on the issue of Ethiopian Jewry for three decades, took a two-year-plus hiatus from the issue to serve as Justice Minister and attorney-general of Canada under premier Paul Martin. His term ended this February, and now, he declares: "I'm back on all fronts." And this time, it seems, it's personal. "One of the disturbing things is [that] I left the issue back in 2003 when I was appointed Minister of Justice - pleased that finally the government in 2003 had taken all these decisions - and come back to it now in June 2006 to find that that whole set of decisions of February 2003, made with undertakings to the court in response to our petitions, is breached in every particular," he relates, describing himself as "breaking my silence." Cotler, a staunch defender of Israel who pleads before the High Court in Hebrew, doesn't make his criticisms in this case lightly. And he's more circumspect when it comes to castigating Israel on its behavior towards the Palestinians. Having created another multi-point index to calculate the overall protection of human rights - including whether there's a universal franchise and a democratically elected parliament - he finds that Israel "measures up comparatively well." Cotler should know, though he has been criticized by some Canadian elements for being an Israel apologist. The McGill University law professor, who directed the school's "Human Rights Programme" until he took a leave to run for office, has championed human rights in courts around the world. He has been decorated with the Order of Canada and was the first recipient of the Martin Luther King Jr. Humanitarian Award. His roster of celebrity clients includes Nelson Mandela, Natan Sharansky and Egyptian democracy activist Saad Edin Ibrahim. The cases which have been met with success lead the slightly disheveled, amiable 66-year-old to call himself an optimist. So he presses on. The Liberal Party member, first elected in 1999 with the highest percentage of the vote - 92% - in a Canadian national election in the last century, now serves as the chairman of the Save Darfur parliamentary coalition, continues to liaise with Middle East jurists to push for more justice, and, of course, presses for Israel to quickly absorb the Falash Mura. Why do you believe the government has, as you say, "breached" its commitments to bring the thousands of Falash Mura in Ethiopia to Israel as quickly as possible? There are those who have said that this is racism on the part of the government. It's an argument that can be made, but it's not an argument that I like to make. I argue this thing on legal, moral and humanitarian grounds. On the basis of principles of the rule of the law alone - and I prefer to use legal language - the Ethiopian Jews have been denied equality before the law, have been denied equal protection and equal treatment of the law. And if I were to speculate as to why, the most charitable thing I could say is that has not been a priority for the government. It has not been on the radar screen. I can demonstrate this by showing that the government's decision, or the decision to convene a committee to make a decision, is almost always correlated to a petition before the court, which serves as a wake-up call ... otherwise one could not discern that it was a priority on the government agenda, that it was on the radar screen of the government, so the government has been basically reacting to court orders and then breaching their own undertakings made in response to those court orders. Another rights issue currently in the news concerns Palestinian civilian deaths in Gaza. How concerned are you from a human rights perspective by the action Israel has taken there? In the words of Voltaire, if you take something out of context, you can hang anybody. Therefore, the context has to be appreciated. That context begins with a government in the Palestinian Authority that by its own covenant is engaged in a state-sanctioned culture of anti-Semitism [and violence]. The second thing - and this is something that is not always appreciated - is that after Israel withdrew entirely from Gaza, and after the Palestinian Authority had full control of Gaza, to use the territory from which Israel vacated to launch rockets intentionally targeting Israeli civilians in pre-1967 territory has absolutely no measure of justification whatsoever. But some argue that the PA doesn't have full control, since they lack sovereignty over Gaza airspace and seaports and can't control the borders to allow in vital goods. They're not sovereign by virtue of the fact that the basic approach of the Palestinian leadership - and this is not only Hamas, but Arafat as well, as shown by the evidence - has been a policy and practice of double rejectionism. In other words, you can go back to the partition resolutions of 1947 and fast-forward to 2006: the Palestinian leadership was prepared to forgo the establishment of an independent and sovereign democratic Palestinian state if that meant having to countenance the existence of a Jewish state in any boundaries. So long as you have this policy of double-rejectionism, you can't reproach the other side if you don't yet have your full independent authority. The second point is, not only do you have a philosophy and practice of double rejectionism but the undertaking of terrorist activity in order to implement this policy, which itself is utterly unacceptable. The position I take is that terrorism, from whatever quarter, for whatever purpose, is utterly prohibited under international humanitarian law, so even if you want to say that there is residual occupation by way of ports and airspace, acts of terrorism are utterly prohibited, and in particular when the terrorism seeks to target Israeli citizens within Israeli territory. Israel nonetheless in its response has to abide by norms of international humanitarian law, which include in particular the principle of proportionality. That is to say that the response has to be proportional to the threat and to the right to protect those citizens from the threat and its effects. Here you have two things that compound the situation. One is that the Palestinians not only launch their terrorist attacks against Israeli civilians, but they launch it from their own civilian enclaves. The result being that tragically the Palestinians themselves are being held as human shields for the Israeli response to the indiscriminate rocket attacks. Nonetheless, under international law there's a principle of distinction [by which] you must always distinguish between combatants and non-combatants. You have to take special care to ensure that even if a response is proportional, it does not harm civilians. And do you think Israel's response has adequately applied the principles of proportionality of use of force and distinction between civilians and militants? If you look at it from the time that Israel withdrew - with not only the hope, but really with the Palestinians under the responsibility not to launch these attacks - I think for a period of time Israel's response as perceived by the public was restrained and proportional in the light of daily attacks targeting its civilians. When you get to the events of the last two weeks, then you have a situation where Palestinian civilians have been killed under circumstances which I think demonstrate, pursuant to the Israeli inquiries in that regard, that there was no intentionality on the part of Israel to target or harm civilians, unlike what Hamas is doing. But the question still remains whether the principles of proportionality and distinction ended up being respected in all its particulars. And the answer? The reviews are being undertaken now by the Israeli authorities in that regard, and they will have a better appreciation of whether that's been the case. But I think what is clear is that the intention to respect the principles of proportionality and distinction was there, and in international law that is fundamental. Whether measures have to be taken to ensure that the guidelines under which the responses take place are as carefully crafted and implemented as they should be so as to protect against harm to civilians, that is something that I would expect the Israelis would make their own determinations about, as respect to their own enquiries in that regard. The new United Nations Human Rights Council has criticized Israel's current incursion into Gaza, a move criticized by many pro-Israel groups as one-sided. What do you make of the new council, which replaces the much-maligned UN Human Rights Commission, in part because of its singling out Israel. There is finally and belatedly an acknowledgement that the entire UN Human Rights Commission - a body set up to protect human rights - was itself violating human rights in three main respects: that it singled out one member of the international community, namely Israel, for discriminatory and differential treatment; that it was giving the major human rights violators exculpatory immunity and not holding them to account; and that Israel was the only country that was not part of any regional grouping [so] it was not entitled to be elected a member of the commission or even to participate in discussions regarding resolutions in which it was the object of indictment. You had here a kind of apartheid in the UN Human Rights Commission, but Israel was the only victim of that apartheid because it was the only member state not a member of a regional group. And I can go on. Now we come to the new human rights council. It was supposed to address these matters. Number one, election to the UN human rights council was to be by secret ballot, and you had to have a majority in order to get on the council. Number two, all the countries on the council were going to have their human rights records scrutinized. Number three, the conduct of the council was to be such that no country would be singled out for purposes of hearings and discussions and the like. These things represented an improvement. However, we still had a situation in which the major human rights violators have been elected to this new human rights council. So, to use the old adage that the fox is amongst the chickens: There may be fewer foxes, but the chickens are still there. In other words, vulnerability for Israel and the presence of major human human rights violators are still there. It doesn't sound too promising. The initial changes in the normative framework were somewhat encouraging, but the initial actual operations of the un human rights council have not been encouraging. Israel becomes a canary in the UN system of human rights. Can you talk about Canada's subtle shift at the UN to a position more supportive of Israel, voting, as it did, against some of the anti-Israel resolutions presented at the General Assembly? I think there was a recognition that there was this prejudicial treatment of Israel, but we didn't take it to the next step - that the issue wasn't only Israel being prejudiced, but that because these decisions were being taken in the name of the United Nations, because they were allegedly being taken under international humanitarian law, the integrity of the UN was being undermined. Therefore, coming from a country that takes the UN seriously and cares about the integrity of the UN, my position always was that - forget about Israel - if we care about the integrity of the UN, if we care about the integrity of international law, then we should not countenance a process and a procedure which undermines that integrity and international law. [But] there was a shift in Canada's voting records on some seven votes out of 19 at the United Nations General Assembly during the time that I was a minister, and it may well be that the new government will not only continue that trend but in fact improve upon it. At the same time, Canada has just become the most recent addition to the list of countries in which groups have passed boycott resolutions against Israel. First it was the Ontario chapter of the Canadian Union of Public Employees (CUPE) and then the United Church of Canada. How concerned are you by this trend? I tracked that issue very carefully, and the decision taken by CUPE is a pernicious one, not only prejudicial where Israel's right to self-determination is concerned, but uninformed, misinformed, and prejudicial to the peace process as a whole. Having said that, I watched the reaction to the decision, and there was such a uniform condemnation. The letters to the editor ran something like 50 against and three in favor ... I think the decision is blatantly wrong, but more importantly it was seen to be wrong by the Canadian public. While I was discouraged by the decision, I was encouraged by the critique of it. Does this say anything about the climate towards Jews generally in Canada? Judging by editorial commentary and the like, Israel has been getting a fair hearing in the court of public opinion. The understanding of Israel's case and cause - and no less important, an understanding of the pursuit of peace in the Middle East - is better now than it was. There's been a consensus [among] governments and people alike that as long as you have a Palestinian Authority that not only denies Israel's right to exist, but by its own covenant seeks to destroy Israel; that is not only not prepared to forsake violence but actively condones acts of terror; that does not only not abide by previous agreements but actively breaches those agreements; that not only does not put an end to incitement but has a charter that is a standing invitation to incitement to hatred not only against Israel but against Jews ... the informed public in Canada can understand that as long as the PA takes these positions, it has no case. Overall, how would you asses Israel's human rights record? I have critiqued Israel's human rights record over the years, with regard to illegal settlements or occasional disproportionate response. But given the context in which it exists - a state in a hostile neighborhood, among states of belligerency - on the whole its human rights record measures up comparatively well. Particularly because of the right to petition the government and the courts to redress grievance. I don't know of any country in the world in which the issues that have been held to be justiciable here, such as the route of the [security] fence, would have ever come before the courts. [And] there is not only the right to petition the government for redress of grievances with the widest principles of standing and justiciability anywhere in the world, but you can go directly to the Supreme Court and not have to go through layers of appellate review in order to gain relief. There's that singular framework for the protection of rights and remedies which almost has no parallel anywhere else. Another point is that there is very intense media coverage in this country, so that things that in other countries might not be exposed are under constant scrutiny in Israel. The old adage says that sunshine is the best disinfectant, and there is this ongoing, immediate sunshine. Some people feel there's too much media involvement in scrutinizing Israel, but within Israel this has to be seen as a very important remedy for human rights protection. Another point is the parliamentary process, in which there is not only an extremely large number of parties for a particular political culture, but the very engagement of the parties, the use of private members' bills that not only showcase rights-violation issues but then are enacted for the protection of those rights, is yet another dimension of important rights protections. Another is the NGO community. Just as there's a double-barrelled media scrutiny - Israeli and foreign - you've got the same thing with NGOs. I've just identified four basic rights-protecting dynamics, which almost distinguish Israel in the incidence and intensity of their use. This doesn't mean that human rights violations will not occur, or that when they do occur they might not be redressed, as occurs in every society ... There will be people who will say that the court, when it comes to matters of national security, has not been as protective of human rights as it could or should be. And I'm saying if you look at this entire thing in comparative perspective, and the context in which these things arise, and the role of all the other actors - media, NGOs, parliament and civic engagement - then there has been a singularly comprehensive protective framework, with some imperfections. This analysis includes Israel's treatment of the Palestinians? Israel holds up well even when it comes to the Palestinians. I think it would hold up a lot better if we could bring about a two-state solution - two independent, secure and democratic states, Israel and Palestine, side by side. [Now] one side not only denies and refuses to recognize the existence of the other, but takes active measures to put an end to that other state. This then provokes Israeli retaliatory conduct that then may violate human rights. If we look at the human rights framework that does exist for remedial purposes, Israel does stand up well. Where it may not stand up as well is with the situation of Israeli Arabs. That's a case where there have been shortcomings in terms of equality before the law and ensuring that Israeli Arabs have equality of access to human needs, rights, and resources ... A Jewish and democratic state must respect the rights of its non-Jewish minorities to equality before the law. Isn't there an inherent contradiction between a Jewish state and universal human rights? There isn't an inherent contradiction if you don't look at "Jewish" in a sectarian or religious sense. If you look at it in a peoplehood sense - in the same way that Israel is Jewish and France is French or the United Kingdom is English - it is the defining character of the people. This is where the Jewish people can give its expression to its right to aboriginal self-determination, in terms of its language, laws, culture, history and heritage. There has to be one place in the world where this aboriginal Jewish people can give expression to its self-determination, and that one place happens to be its aboriginal homeland. But isn't that negated by the fact that a religious process - in this case conversion to Judaism - can confer citizenship? I see it as "terms of entry" to the aboriginal people. We have set out a normative framework to the terms of entry to the aboriginal people, which goes back to the nature of the aboriginal covenant and the means of determination of eligibility in that people, which is open to those who may not have originally been part of the aboriginal community but who chose to become part of it. How does this Jewish aboriginal concept work vis-a-vis the Palestinians? I'm not saying the Palestinians aren't also an aboriginal people. I don't deny their claims. But I talk about this Jewish aboriginal concept with them, so that they won't see the Jewish people as being a colonialist interloper. I tell them it might change their relationship to Jews and the Jewish homeland if they see us as an aboriginal people. So you are urging Jews to use this aboriginal language. Do you see it as a way to strengthen Israel's case in the eyes of the human rights community? It's important that we affirm who we are, that we're not just a group of disparate individuals who happened to come here to some post-Holocaust country, but we are an aboriginal people who came to our aboriginal homeland. If we begin to see ourselves this way, we will not only better understand who we are and where we are, but we might well find that others better understand who we are, where we are, and what it means to be a people ... That's the language of human rights. I think the international community will better understand the Jewish people's cause if they see us through the prism of human rights. We'll be seen as being a people, not just a religion or an ethnicity. Many of Israel's supports say that the human rights community, and NGOs in particular, have a fundamental bias against Israel, both in the way they view the conflict and the assessment they give. Do you agree? NGOs have emerged as very important actors. They are not only human rights actors, of course, but they might be ones with a political agenda. It's important that NGOs hold themselves, and are held by others, accountable to abide by the very norms they preach: the norms of universality, equality before the law, respect for fact-finding, respect for a hearing and due process. I happen to be a strong proponent of the NGO culture and the important role they play in human rights. But NGOs, like anyone else, have to abide by the very norms to which they subscribe. Do the major human rights groups, such as Human Rights Watch and Amnesty International, do so? I have worked with and have a lot of respect or both of these organizations. But sometimes they are part of the problem rather than part of the solution. They themselves have engaged in selective scrutiny or the selective singling out of Israel for heightened scrutiny. You've spent your career as part of the "human rights culture." Does observing how its instruments - NGOs, the UN, international law - are used in the case of Israel change your relation to those institutions? Does it make you question the possibility or integrity of a true international human rights agenda? I'm an optimist by nature. I remember when I was representing political prisoners and I was told they'd never get out, and I had meetings Natan Sharansky, who was in a Soviet prison, and others. My view was you just persevere, and in the end, justice will prevail. I believe that increasingly, though incrementally, the UN is beginning to appreciate that what's at stake here is its own credibility. Kofi Annan has at least acknowledged that the UN Human Rights Commission had lost credibility, that it was acting in a manner that breached the UN charter. The very thought that we created a new UN Human Rights Council to replace the UN Human Rights Commission was an acknowledgement of the failure of the commission. As somebody who has been involved in this thing for more than 30 years, I would have to say that the situation with respect to the United Nations represents an improvement. But we're still not where we should be with regard to human rights discourse.

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