BDS IN THE PEWS
International Law, Human Rights, and NGOs Series
The exploitation of international legal rhetoric has become a major weapon in the political war to delegitimize Israeli responses to attacks on its civilian population. This strategy, adopted at the NGO Forum of the UN’s 2001 Durban Conference, distorts legal and human rights terminology, as well as international humanitarian law. By couching political attacks in legal terms, NGOs seek to create a veneer of credibility and expertise, thereby increasing international pressure against Israel and delegitimizing counter-terror measures. This approach also supports the BDS (boycotts, divestment, and sanctions) movement, exploitation of the courts, and similar tactics.
The most recent manifestation of this process accompanied the Gaza War. From the beginning of the combat on December 27, 2008, through the adoption of the Goldstone Report in November 2009, more than 50 NGOs claiming to promote human rights and humanitarian agendas issued over 500 statements on the fighting – mostly condemning Israel. Similar activity was seen during Israel’s conflict with Hezbollah in 2006, the construction of the security barrier in 2004, and Operation Defensive Shield in 2002. While these NGO publications ostensibly claimed to provide neutral and objective coverage, Professor Kenneth Anderson has shown that they are “essentially lawyers’ briefs that shape the facts and law” toward favored conclusions “without really presenting the full range of factual and legal objections.”
NGO Monitor’s “International Law, Human Rights & NGOs” series will address various aspects relating to international law raised in these NGO campaigns.
Issue 1: Self-defense
- Al Haq and PCHR falsely claim that Israel cannot invoke self-defense in response to attacks from non-state actors in occupied territory. In making this legally incoherent argument, these NGOs misinterpret key passages in international law.
- A second approach, taken by Human Rights Watch and B’Tselem, alleges, without evidence, that Israel’s exercise of self-defense is merely a pretext for punishing the Palestinians. There is no legal doctrine that establishes that an otherwise legal military action in self-defense becomes illegal simply because one of its alleged motives is to “punish” the aggressor.
- Other groups, including Oxfam and FIDH, pay lip service to Israeli self-defense, but reject every Israeli action as a “violation of international law.”
- These NGOs make no realistic suggestions of what would be considered lawful and effective measures, effectively nullifying the right to self-defense.
- PCHR, which is funded by the EU, Denmark, Norway, Ireland, Holland, and other governments, labels direct attacks on Israeli civilians as acts of “resistance,” another legal fiction.
Full analysis of The Right to Self-defense
Issue 2: NGO “Apartheid State” Campaign: Deliberately Immoral or Intellectually Lazy?
- Labeling Israel an apartheid state is part of a larger strategy of political warfare that includes NGO boycott, divestment, and sanctions (BDS) campaigns and “lawfare” cases against Israelis. It is the latest manifestation of the 1975 UN “Zionism is racism” resolution and the 2001 Durban Conference NGO Forum declaration.
- The only internationally recognized case of apartheid was in South Africa. Customary law is based therefore on those practices that were unique in apartheid South Africa. Since Israel does not share these practices, it cannot be defined as an apartheid state under international law.
- Many NGO claims and legal arguments equating Israel with apartheid South Africa originate with the PLO’s Negotiations Affairs Department and were developed for propaganda purposes.
- Many NGOs falsely portray the Arab-Israeli conflict as a dispute motivated by alleged Jewish race-hatred of Arabs, rather than one based on competing national and territorial claims.
- A significant portion of the organizations involved in apartheid based demonization receive substantial funds from the European Union, European governments, New Israel Fund (NIF), Ford Foundation, and George Soros’ Open Society Institute.
- NIF’s funding of such organizations is entirely inconsistent with a March 2010 statement by CEO Daniel Sokatch, that “apartheid” is “a historically inaccurate and inflammatory term that serves only to demonize Israel and alienate a majority of Jews around the world.”
- NGOs charging “apartheid” omit the context of terrorism in order to falsely frame counter-terror measures. International law specifically allows for rights restrictions as necessary to balance security needs and humanitarian considerations.
- Under international law, countries have the right to set citizenship and entry criteria. Such conditions are enacted by every state in the world and are not the equivalent of apartheid.
- A 2009 publication by Adalah (NIF- and European-funded) and Al Haq (European-funded), entitled “Occupation, Colonialism, Apartheid?: A re-assessment of Israel´s practices in the occupied Palestinian territories under international law” declares Israel guilty of “colonialism” and “apartheid,” and of placing Palestinians in “reserves and ghettoes.” The report is premised on an expansive distortion of international law.
- Some “Israeli apartheid” activists benefit from the open and democratic nature of Israeli society. Omar Barghouti of PCABI is a PhD student at Tel Aviv University. Adalah, which participated in an Israeli Apartheid Week event “on Apartheid as it is experienced by Palestinian citizens of Israel,” has direct and repeated access to Israeli courts and policy-makers through dozens of court petitions and regular appearances at Knesset hearings.
- NGOs routinely ignore practices in the Arab and Muslim world that more closely resemble the practices of apartheid South Africa, such as legally mandated gender and religious discrimination in Saudi Arabia.
Full analysis of NGO “Apartheid State” claims
Issue 3: Lost at Sea: NGO Legal Distortions in the Wake of the Flotilla Incident
After the violent clash between the Free Gaza flotilla and Israeli naval forces on May 31, 2010, numerous NGOs and “human rights groups” issued harsh and one-sided condemnations of Israel’s actions. Many of these statements were couched in the terminology of international law. However, as the following analysis demonstrates, these claims are legally incorrect or dubious. They represent the continued exploitation of international law for political ends.
Full analysis of NGO legal distortions about the Flotilla incident
Issue 4: Rule of Law and Due Process: NGO Campaigns to Discredit the Israeli Justice System
- As part of the NGO campaign to internationally isolate Israel, NGOs have developed a strategy to discredit the Israeli justice system and to falsely paint Israel as an anti-democratic state. This strategy is used to bolster BDS (boycott, divestment and sanction campaigns) and lawfare initiatives, as well as to promote the Goldstone Report.
- Many of the NGOs involved in this strategy receive significant funding from the European Union, European governments, and prominent foundations such as the New Israel Fund, the Ford Foundation, and George Soros’ Open Society Institute.
- The strategy has encompassed specifically targeting the Israeli Supreme Court. One NGO, Al Haq, advocates “flooding the Court with petitions in the hope of obstructing its functioning and resources.”
- Hasseen Jabareen, General Director of the NIF- and EU-funded Adalah, encouraged NGO activists “to portray Israel as an inherent undemocratic state” and “use that as part of campaigning internationally” at a 2008 conference funded by the Swedish government.
- European-funded NGOs such as Al Haq, Palestinian Center for Human Rights, FIDH (France), Badil, and DCI-PS have pursued this strategy at the UN and the International Criminal Court to force “war crimes” investigations of Israeli officials.
- Human Rights Watch and Amnesty International have joined these efforts, with allegations that Israeli investigations, in particular, the Turkel Commission on the May 2010 “Free Gaza” flotilla, lack independence and transparency. This is despite the UN Human Rights Council’s Goldstone Follow-up Committee reporting to the Human Rights Council that the Turkel commission had “active participation from the international observers” and “thoroughly examined the controversial legal and political issues presented for their consideration.”
- To date, courts around the world confronted with this NGO strategy have rejected these campaigns. In a case PCHR filed to challenge Israeli justice, the Spanish Appeals Court rebuked PCHR for “disputing the impartiality” of Israel’s justice system, which “involves ignoring [Israel’s] existence [as] a social and democratic state with rule of law.”
- While the NGOs discussed in this report allege that Israel fails to uphold due process, these same groups rarely adhere to these norms, such as the International Bar Association’s Lund-London Guidelines for fact-finding. Such failure highlights the immoral frameworks under which many of these organizations operate.
Full analysis of Rule of Law and Due Process
NGO Monitor Monograph Series - Relevant Titles
Precision-guided or Indiscriminate? NGO Reporting on Compliance with the Laws of Armed Conflict (June 2010)
The NGO Front in the Gaza War: The Durban Strategy Continues (February 2009)
NGO "Lawfare": Exploitation of Courts in the Arab-Israel Conflict (October 2008)
Articles of Interest
- Barry Feinstein, Gaza Flotilla: International Law Justifications for Israel's Actions, JURIST - Forum, December 8, 2010
- Daniel Byman, Kill or Be Killed?, Wall Street Journal, July 17, 2009
- Gabriella Blum Comments on the Role of the Judiciary in Israel in Counterterrorism, Opinio Juris, June 23, 2009
- One on One: Ruling out the wrong rhetoric, Ruthie Blum, Jerusalem Post, June 16, 2008
- Op-ed in The Jewish Press ('Gaza's Palestinian Civilians Are Not Israel's Responsibility’, Feb. 13, 2008, Michael Goldblatt and Daniel Mandel), criticizes claims, including by Human Rights Watch’s Joel Stork, that Israel’s policy towards Gaza constitutes “collective punishment”.
- Robert C. Blitt, "Who Will Watch the Watchdogs? Human Rights NGOs and the Case for Regulation", Buffalo Human Rights Law Review, vol.10, 2004.
- 'David Frum on the Winograd Report, Hezbollah and Media Bias: Misinformation warfare', National Post (Canada), Feb. 2, 2008.
- Eric Posner, "What the Cold War Taught Us", Wall Street Journal, April 21, 2007
"The tension between promoting democracy and promoting human rights, when newly enfranchised peoples turn out not to subscribe to the ideals of the Enlightenment, is the dirty secret of the human rights movement. As the expanding franchise continues to expose the fissure between the two ideals, human rights advocates are finally going to have to choose between them."
- Amos N. Guiora, "Where are Terrorists to Be Tried -- A Comparative Analysis of Rights Granted to Suspected Terrorists," Case Legal Studies Research Paper No. 07-13, Catholic University Law Review, Volume 56, No. 2 (Spring 2007). This article compares the American, Israeli, Russian, Indian, and Spanish approaches to trying terrorists and details the extensive due process rights afforded to suspected terrorists in Israel. The author is Professor of Law and Director, Institute for Global Security Law and Policy, Case Western Reserve University School of Law. He was the former Legal Advisor to the Gaza Strip and Commander of the IDF School of Military Law.
- Don A. Habibi, "Human Rights and Politicized Human Rights: A Utilitarian Critique," Journal of Human Rights (Volume 6, Issue 1),January 2007 , pages 3 - 35 (Full text available to subscribers only)
- Dr. Avi Bell, How Should Israel Respond to War Crimes Accusations from the War in Lebanon? Jerusalem Issue Brief (Vol. 6 No. 13), November 9, 2006
- "Supreme Court rejects Public Committee Against Torture's claim that targeted killings are illegal". Israel Supreme Court, December 14, 2006
- Roger W. Barnett, "Favoring Terrorists – Law, rules on war must be rewritten," The Providence Journal, November 19, 2006
- "Judgments of the Israel Supreme Court: Fighting Terrorism within the Law." 210 pp. Israel Supreme Court, Jerusalem, 2005. (Vol. 2 in production).
- Joseph M. Lipner, "Israel should probe accusations of war crimes," Jewish Journal, September 29, 2006. So subjective is the relevant standard that a war crimes accusation is almost inevitable when an army fights a militia like Hezbollah, entrenched deep within the civilian population. Strikes against Hezbollah will tragically and inevitably lead to civilian deaths.
- "Behind the Headlines: Legal and operational aspects of the use of cluster bombs," Israel Ministry of Foreign Affairs, September 5, 2006.
- Joshua Brook, "Human Rights Advocates Embarrass Themselves: Out of Proportion," TNR Online, July 28, 2006.
- "Responding to Hizbullah attacks from Lebanon: Issues of proportionality," Israel Ministry of Foreign Affairs, July 25, 2006.
- Dr. Robbie Sabel, "Hezbollah, Israel, Lebanon and the Law of Armed Conflict," Jurist, July 25, 2006. Dr. Robbie Sabel says that many of the international law issues in the current conflict between Israel and Hezbollah come down to matters of common sense.
- Dr. Avi Bell, "Human Rights Watch's Q&A on Lebanon War: Selective and Distorted Application of International Law," July 23, 2006. Dr. Bell is from the Faculty of Law at Bar Ilan University and is Visiting Professor at Fordham University Law School
- Michael Walzer, "The Ethics of Battle: War Fair," The New Republic Online, July 19, 2006.
- Amos N. Guiora, "Teaching Morality in Armed Combat -- The Israel Defence Forces Model," Case Legal Studies Research Paper No. 05-24 (August 2005). "The IDF Model . . . is the most advanced and developed model around."
- Joseph Lelyveld, "Interrogating Ourselves," New York Times, 12 June 2005.
- Michael Walzer, "Excusing Terror: The Politics of Ideological Apology," October 22, 2001.