The UN human rights council investigation

Shurat HaDin fights back

 NITSANA DARSHAN-LEITNER has headed Shurat HaDin since 2003.  (photo credit: DOR PAZUELO)
NITSANA DARSHAN-LEITNER has headed Shurat HaDin since 2003.
(photo credit: DOR PAZUELO)

Shurat HaDin cannot ignore the accusations which are sure to be issued from the commission

Sitting in the Tel Aviv offices of Shurat HaDin - Israel Law Center on a sunny Sunday afternoon, Nitsana Darshan-Leitner outlines the challenges the State of Israel will be facing from the United Nations in the coming weeks.

Her calm, almost serene demeanor belies the fierce opposition that Israel is expected to face from the UN Human Rights Council and the three-member Commission of Inquiry [COI] that was tasked by the UN to “investigate in the Occupied Palestinian Territory, including East Jerusalem, and in Israel all alleged violations of international humanitarian law and all alleged violations and abuses of international human rights law leading up to and since April 13, 2021.”

While there have been aggressive UN investigations of Israel in the past, what differentiates the current one is that it has been conceived as a permanent and ongoing inquiry to probe Israel and the IDF. The commission was not assigned an end date for its term.

“The UN Human Rights Council investigation is not coming out of thin air,” explains Darshan-Leitner, who founded Shurat HaDin in 2003. “It is connected to the goings-on of the International Court of Justice in The Hague.”

The ICC was created by the Rome Statute in 1998, which established the court. The court has jurisdiction to prosecute individuals for crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.While Israel initially supported the idea of an international court, it was concerned that the court could become an instrument that could be used against it. Israel, the US and numerous other countries have neither signed nor ratified the statute and have no legal obligation to abide by the ICC’s decisions.

In March 2021, Fatou Bensouda, the ICC prosecutor at The Hague, announced that she would be opening a war crimes probe against Israel and Hamas.

A decision by the International Court against Israel could have significant ramifications. Most European and Scandinavian countries are members of the court and are legally obligated to honor the court’s rulings. If the ICC were to rule that IDF soldiers committed war crimes, any Israeli who served in various IDF military operations who would be traveling in countries that are members of the court – such as Canada, Australia and New Zealand – could be subject to arrest. Harsh economic sanctions could be leveled against the Jewish state and its banking sector.

Additionally, Israel might also face further risks such as sanctions, weapon embargoes and boycotts. For example, El Al or other Israeli carriers might not be permitted to operate in certain countries.

Bensouda’s term as prosecutor ended in June 2021, and she was replaced by British barrister Karim Khan. The new prosecutor inherited 14 investigations from Bensouda, of which eight were active investigations. To the dismay of the Palestinians, explains Darshan-Leitner, he categorized the items on his court’s docket as “in the planning stage” – a polite way of saying that the claims lacked the merit or urgency warranting the court’s time.

“This angered the Palestinian Authority,” says Darshan-Leitner. “They couldn’t understand how their tremendous efforts to get the prosecutor to open an investigation has stalled.”

In September 2021, the PA called for the establishment of a commission in the International Court of Justice to influence Karim Khan to change his mind and reactivate the ICC’s investigation against Israel.

Since then, says Darshan-Leitner, the PA has continued to accuse Israel of committing war crimes and apartheid. The Amnesty International report, released in early February, accused Israel of apartheid behavior within and beyond the Green Line. The report claimed that Israel “has established and maintained an institutionalized regime of oppression” against Palestinians and accused Israel of practicing racial separation of Palestinians since 1948.

Darshan-Leitner says that the Palestinian claims against Israel at the International Criminal Court have focused on two areas: IDF military operations and the issue of Israeli settlements, which they say constitute war crimes.

Karim Khan, the ICC prosecutor, is now being pushed by the Palestinians to prioritize the investigation of Israel under the “apartheid” accusation, a new claim, which was not one of those even investigated in the preliminary investigation that Bensouda pursued. Yet, “whatever gets this investigation going is legitimate in their eyes, and it does not matter what it is, or if it is true,” she says.

KARIM KHAN, new ICC prosecutor. (Credit: Michael Kooren/Reuters)KARIM KHAN, new ICC prosecutor. (Credit: Michael Kooren/Reuters)

The latest attempt by the Palestinians to convince the court at The Hague is the UN’s three-member commission of inquiry, headed by Navi Pillay, from South Africa, and which includes Miloon Kothari (India) and Chris Sidoti (Australia).

According to Darshan-Leitner, Pillay, Kothari and Sidoti are known for their biases against Israel.“All three have a proven history of actions and statements on the same topics they are called to ‘investigate,’” she says. “Pillay herself has already accused Israel of apartheid, and she was the living spirit behind the infamous antisemitic Durban conferences. The others are not far behind.”

The 49TH session of the UN Human Rights Council (HRC49) will be held at its office in Geneva from February 28 until April 1.

It is expected that the main attraction of the session will be the report that the commission of inquiry will release on Operation Guardian of the Walls, the Israeli operation in Gaza that took place in May 2021 in response to the missiles that Hamas launched at Israel. Israel is expected to be accused of war crimes, apartheid, and crimes against humanity during this session.

Darshan-Leitner says that while the State of Israel will not cooperate or become involved with the commission of inquiry, Shurat HaDin cannot sit back quietly and ignore the accusations that are sure to be issued from the commission.

“There are two main possible efforts to counter the Pillay committee,” explains Darshan-Leitner. “One is the material response – answering the accusations of apartheid. The other is the personal angle – focusing on the lack of impartiality of its members.”

Previous experience, she says, shows that it is unlikely that Shurat HaDin, or anyone else, for that matter, will be able to convince those who are already negatively disposed to Israel to change their minds.

Rather, she suggests, Shurat HaDin plans on illustrating that all the commission of inquiry members are biased against Israel and that the UN is willing to sacrifice its core values and any sense of fairness for the cause of delegitimizing Israel.

“We are going to launch a campaign that calls for the resignation of all the COI members,” says Darshan-Leitner. “We are going to organize mass petitions and take legal action against the COI, its members and anyone that helps this committee.”

In addition, Shurat HaDin will attempt to show that the PA, not the State of Israel, is the actual violator of human rights. “We are going to scan their legislation and pull out what we know – the discrimination against women, children, the LGBTQ community and their flawed legal system. Do you know that according to PA law, one is allowed to legally rape his own wife? Marital rape is not an offense under their ‘advanced human-rights-friendly’ legislation.

“This is just a small example of the ‘champions of human rights’ the UN is keen on helping. While they accuse Israel – a true democracy – of apartheid, they promote a tyranny, which has not held elections for 15 years, and which systematically abuses the human rights of its own people.”

Darshan-Leitner says that Shurat HaDin will also expose to the world how minorities are treated in the PA and Gaza.“The fate of Christians in the PA territories and Gaza is sealed,” she asserts. Their numbers are constantly decreasing. Islamic extremists that call to massacre ‘infidels,’ who are no better than ISIS figures, are on the rise.”

The Shurat HaDin leader feels that Israel made grave mistakes in its handling of an earlier UNHRC commission of inquiry headed by South African jurist Richard Goldstone in 2009. In that infamous episode, Jerusalem refused to cooperate with the Goldstone Commission, declaring it to be a biased body with a predetermined agenda that it would not legitimize with its cooperation. The fallout from the harshly critical final report, however, created a great deal of political tensions internationally for Israel.

“While I wholeheartedly agreed that Israel was correct in refusing to facilitate or cooperate with the hateful Goldstone witch hunt, I do not believe we played our cards well. It’s not enough just to ignore the UNHRC and declare them as prejudiced and haters. The government needed to supplement its decision with a well-organized and proactive campaign to disseminate its own narrative and to counterattack against the antisemitic UNHRC.“This is where an NGO like Shurat HaDin can play such a crucial role. We can act, speak out and utilize legal actions in instances where the government’s hands are essentially tied,” she says.

Darshan-Leitner seeks to fill this gap this time. She summarizes the current situation and says that, ultimately, the PA’s goal is to influence The Hague’s chief prosecutor. Therefore, “if I can uproot the foundation of the commission to show how misguided it is, how the claim of apartheid is wrong and is more suited to the PA, it will show that the commission is devoid of value.

“If we don’t do this, the results will be bad. The prosecutor may be influenced and may change his mind. If he does, it will be a tragedy and a game changer. We cannot let this happen.”

This article was written in cooperation with Shurat HaDin-Israel Law Center.