Activists “should try to portray Israel as an inherent undemocratic state” and use that as part of campaigning internationally.”[1]
– Hassan Jabareen, Adalah[2]

“I have sufficient confidence in Israel’s legal system to conduct [] investigation[s].”
– Richard Goldstone[3]

Summary

  • 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.”
  • At a 2008 conference funded by the Swedish government, Hassan 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.”
  • 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.

Introduction

As a vibrant parliamentary democracy, located in a hostile region and confronted with asymmetric war directed at its citizens, Israel faces many challenges, including the need to balance competing rights and legal claims.  Despite this complex difficulty, Israel is subjected to many disproportionate and indiscriminate attacks on its good faith efforts to uphold human rights while protecting citizens against on-going terror and military strikes.  NGOs claiming to promote human rights and humanitarian objectives have led these attacks.  As part of their campaigns, these NGOs have developed a strategy to discredit the Israeli justice system and to paint Israel as a rogue state.  A key component of this approach involves portraying Israel as anti-democratic and lacking in rule of law and due process, as reflected in the quote by Hassan Jabareen of the Israeli NGO Adalah.  These manufactured charges are disseminated in international frameworks where they are prominently featured, such as in the 2009 Goldstone Report and at the International Criminal Court.  They are also used to bolster boycott, divestment and sanction campaigns (BDS) and initiatives exploiting universal jurisdiction statutes in Europe and North America.  

This paper provides a detailed analysis of this NGO strategy.  It begins with a brief overview of rule of law and due process.  It then highlights several examples of NGO campaigning including:  misrepresentation of Israel as nondemocratic; maligning the Israeli Supreme Court; impugning Israeli investigations; lobbying before the International Criminal Court; and portraying NGO activists linked to terror organizations as political martyrs.  In turn, these same organizations routinely flout the principles of due process by proclaiming Israeli officials guilty of “war crimes” and other violations without evidence and before any investigation has taken place.  In addition, these groups fail to adhere to moral and ethical standards in their own work.  These examples are not exhaustive but are representative of hundreds of NGO statements documented by NGO Monitor.

Background:  What is Rule of Law and Due Process?

Rule of law and due process are the cornerstones of a free and open democratic society.  Rule of law means that no one, including the highest government officials, may “act arbitrarily or unilaterally outside the law.”[4]   It also mandates that governments exercise their power “in accordance with well- established and clearly written rules, regulations, and legal principles.”[5]   Due Process is a necessary companion to the rule of law, requiring “fairness in all legal matters, both civil and criminal, especially in the courts.”[6]

The concepts of rule of law and due process comprise many substantive aspects.  According to the International Bar Association, these include, “an independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law.”[7]

Tel Aviv University Professor Daphne Barak-Erez and Columbia Law School Professor Matthew Waxman note that due process finds its “roots in the concept of ‘natural justice’” and has several components: “that an individual be given a proper opportunity to be heard,” that there is “due notice of the hearing as well as adequate notice of the evidence against him,” and that “the decision maker be disinterested and unbiased.”[8]

International human rights instruments offer similar guidance.  Article 2.3 of the International Covenant on Civil and Political Rights (ICCPR) mandates that State parties must “ensure [that] any person whose rights or freedoms as herein recognized are violated shall have an effective remedy” and that anyone claiming “such a remedy shall have his right determined by competent judicial, administrative or legislative authorities.”[9]   Article 9 describes protections in arrest and detention, and Article 14 asserts that “everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal.”[10]

Articles 5-7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms dictate similar protections, including a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[11]

These concepts are codified in Israel’s Basic Laws, as well as its Penal Code.[12]   The Israeli civil justice and military justice systems are among the most developed in the world, in particular regarding the application of international humanitarian and human rights law.[13]   There are means for civil, criminal, administrative, and disciplinary hearings should such laws be violated.  These systems “provide victims with effective remedies” in the event that there are findings of wrongdoing, and necessary measures are taken “to prevent a recurrence of violations.”[14]

Myths of Due Process and Rule of Law Violations

Due process does not guarantee the right to win a case or to be acquitted of a crime: Just because one does not receive a favorable outcome in court, does not mean that there was an absence of rule of law or that one’s due process rights have been violated.  

Due process does not inoculate perpetrators from arrest or trial or jail time, when one engages in violence or otherwise violates the law.  

Due process and rule of law do not mandate uniformity of legal interpretations.  The law is “malleable” and subject to interpretation: For instance, if a court in Canada differs in its interpretation of law from a US court, it does not mean that the Canadian court has violated the litigant’s “due process” rights or that Canada lacks rule of law.  Disagreeing with the prudence, wisdom, and benefit of certain laws does not indicate an absence of the rule of law or a lack of due process.

Finally, due process and rule of law do not make a nonbinding legal opinion issued in one jurisdiction enforceable elsewhere.  And the refusal of one court to apply the nonbinding decision of another court does not mean there were violations of rule of law or due process.

While these principles may seem axiomatic, the NGOs highlighted in this report continually promote these legal fallacies in order to advance a distorted view of rule of law, due process, and human rights, in order to delegitimize the Israeli justice system.  They also reflect a profound ignorance of legal principles and international law. 

The NGO Campaign Maligning Israel as an “inherently undemocratic state”

In 2008, Hassan Jabareen, Executive Director of the NIF- and EU-funded NGO Adalah, presented at a conference in Brussels entitled, “Palestine/Israel:  Making Monitoring Work:  (Re)Enforcing International Law in Europe.” The conference, paid for by the Swedish government and organized by Swedish NGO Diakonia and the Ramallah-based Al Haq, echoed the themes and conclusions of the NGO Forum of the 2001 Durban Conference (the “Durban strategy”).   The organizers claimed the meeting would examine the “need to bring perpetrators from Israel/Palestine, as well as their accomplices in Europe, to justice in European courts.”[15]   In practice, however, the focus of the conference was solely on alleged Israeli violations, and on developing tactics to internationally isolate Israel and to specifically target Israelis.  One of those strategies was articulated by Jabareen, who advised that the assembled activists “should try to portray Israel as an inherent undemocratic state” and “use that as part of campaigning internationally.”

Since then, NGOs have implemented inflammatory campaigns attacking the Israeli justice system, most notably against the Israeli Supreme Court, and the Israeli military justice system.  

These attacks are central components of lobbying efforts by these organizations in UN frameworks, such as the notorious Human Rights Council and the International Criminal Court.  Much of the funding for this incitement comes directly from the EU, European governments, and prominent foundations like the Ford Foundation, George Soros’ Open Society Institute, and the New Israel Fund.[16

Attacks & Sabotage on the Israeli Supreme Court

The Israeli Supreme Court (HCJ – High Court of Justice) is a primary target for NGO campaigning.  NGOs active in this effort include Human Rights Watch (HRW), Adalah, Al Haq, the Palestinian Center for Human Rights (PCHR), Yesh Din, FIDH (France), Public Committee Against Torture in Israel (PCATI), and Amnesty International.  Some of these campaigns have gone so far as to advocate sabotaging the HCJ.  Al Haq (headed by a suspected senior activist for the PFLP terror organization), for instance, has called for “an advocacy campaign against the Court,” proposing that “the legal community flood[] the Court with petitions in the hope of obstructing its functioning and resources” (emphasis added) – an illegal measure aimed at incapacitating the Israeli court system.[17]

Examples:[18]
Adalah (Funded by: New Israel Fund, European Union, Switzerland, Sweden, Netherlands, Denmark, Ford Foundation, Oxfam-Novib, Christian Aid)

  • As mentioned, in 2008, Adalah Director Hassan Jabareen appeared at the Al Haq- and Diakonia-sponsored conference, “Palestine/Israel:  Making Monitoring Work:  (Re-)Enforcing International Law in Europe.”  In addition to his suggestion for portraying Israel as “inherently undemocratic,” he also claimed that the HCJ, “is not amenable to hearing [] cases that deal with acts amounting to potential war crimes.”[19]
  • Jabareen filed an “expert” opinion on behalf of Palestinian Center for Human Rights (PCHR), in a lawsuit filed by the group in Spain.  The case sought the arrest and imprisonment of seven Israeli officials for alleged “war crimes” arising out of the killing of a senior Hamas terrorist, Salah Shehade.  Shehade was responsible for the murder and wounding of hundreds of Israelis, and was planning an imminent attack at the time of the operation.  
    •  Jabareen’s opinion claimed that the HCJ had engaged in “misuse of the judicial process” in reviewing the Shehade operation.  It also alleged that, following Israel’s 2005 disengagement from Gaza, there was a “lack of impartiality of the Israeli legal system towards Palestinians and the lack of an effective remedy before Israeli courts for Palestinians in Gaza.”  Adalah also claimed that the Israeli “Supreme Court ha[s] defined all Palestinians as enemies who present an inherent threat to all citizens of Israel.”[20]
    •  Jabareen and PCHR developed the opinion at an EU-funded conference held in Madrid from January 29 – February 1, 2009.  Jabareen was invited “in anticipation of Israel’s retaliation to the 29 January decision of the Spanish Court, particularly as this related to the exhaustion of national jurisdiction vis-à-vis Israel’s military investigation.”[21]
  • Although Adalah alleges that it has no recourse in Israeli courts, this organization files dozens of cases each year, and many are successful.  In fact, Jabareen’s CV, annexed to the Adalah opinion filed with the Spanish courts, described several cases where Adalah had secured relief for Palestinian litigants in Israeli courts.

Al Haq (Funded by: Sweden, Ireland, Switzerland, Netherlands, Denmark, Norway, Ford Foundation, Christian Aid, and George Soros’ Open Society Institute)

  • Al Haq is a Ramallah-based Palestinian advocacy organization that compares Israel to apartheid South Africa, is active in BDS, and refers to terror attacks on Israelis as “legitimate resistance.”  Its executive director, Shawan Jabarin, is linked to the PFLP terror organization and was appointed to HRW’s Middle East Advisory Board in February 2011.  Al Haq is a leader in the “lawfare” movement, filing several cases in North America and Europe in attempts to “judicially enforce” the widely criticized and non-binding International Court of Justice advisory opinion on Israel’s security barrier.  Al Haq also filed for an arrest warrant of Israeli Defense Minister and former Prime Minister Ehud Barak in the UK for the Gaza War.  Al Haq plays a prominent role at the Human Rights Council and other UN frameworks, as well as heavily lobbying the International Criminal Court for “war crimes” prosecutions of Israelis.
  • As part of its UN campaigning and legal strategies, Al Haq routinely asserts that the HCJ is unwilling to rule on issues affecting the rights of Palestinians.  To bolster these efforts, Al Haq has issued several publications leveling highly inflammatory accusations against the Court. Its November 2010 paper entitled,   “Legitimising the Illegitimate? The Israeli High Court of Justice and the Occupied Palestinian Territory,”[22]  makes several claims,[23]  including:
    • “HCJ jurisprudence has become the ultimate rubber stamp for Israeli policies in the OPT [Occupied Palestinian Territories], legitimizing Israel’s illegal actions through the veneer of ‘legal’ judgments.”
    • “Studies analyses and commentaries have consistently exposed the HCJ’s often perverse application of international legal standards... masquerading behind a superficial façade of humanitarian and human rights.”
    • “In this sense the question of justiciability is indicative of the HCJ’s role in the OPT: by imposing limits on itself through a narrow conception of its own ability to judicially review government actions, the Court is rendered ineffective and incapable of providing any real remedies for Palestinians.”
    • Al Haq calls the HCJ opinion on the Security Barrier, Beit Sourik, a “legal perversion,” simply because the decision differed from the discredited and procedurally compromised non-unanimous ICJ advisory opinion on the barrier.[24]
  • At the end of the report, Al Haq proposes several strategies including:
    • “an advocacy campaign against the Court”
    • “The legal community flooding the Court with petitions in the hope of obstructing its functioning and resources.” (emphasis added)

Palestinian Center for Human Rights (PCHR) (Funded by: EU, Sweden, Netherlands, Switzerland, Denmark, Norway, Ireland, Spain, Trocaire, Oxfam NOVIB, Open Society Institute, Christian Aid (U.K.), Dan Church Aid-Denmark)

  • As part of its political campaigning, PCHR routinely attacks the Israeli judiciary.  It has filed many lawsuits to have Israeli officials arrested in Europe or civilly sued in the US.[25]   Several of these cases, filed in the UK, Spain, New Zealand, and the US, relate to the 2002 targeted killing of Hamas military leader Salah Shehade, as mentioned above, responsible for the murder and injury of hundreds of Israeli civilians. A central component of its case strategy is to malign the Israeli justice system.
  • In its court filings, PCHR has alleged that in the aftermath of the Shehade strike, the “Israeli judiciary was used as a legal cover for the perpetration of war crimes, and as a tool to deliberately hinder international jurisdiction under the pretext of a ‘fair’ national judicial system operating in Israel.”[26]
  • PCHR also issued a report in 2010 entitled, “Genuinely Unwilling,”[27]  making the following unfounded claims:
    • “Israel’s judicial system is also unable to investigate senior government and military officials, and assessing criminal responsibility for violations such as those outlined, inter alia, in the Goldstone Report.”
    •  “This study concludes that over a year and a half after the military operation no effective domestic investigations have been conducted into the events of Operation Cast Lead, and that such investigations cannot be conducted within the Israeli national system.”
    •  “The State of Israel actively seeks to avoid scrutiny of its military and security apparatuses; in this regard it is assisted by the HCJ. The net result – as detailed below – is a climate of pervasive impunity, one ‘legitimized’ by the judicial system.”
  • “Genuinely and Unwilling” also alleges that civilian supervision of the Israeli military justice system “exists in law but not in fact,” and falsely claims that “the scope of judicial review is extremely limited, negating the possibility of civilian oversight.”[28]   In support of these claims, PCHR cites a decision of the HCJ, referring to a lengthy translated quote supposedly from that case.[29]   The case, however, is grossly misrepresented. The cited decision relates to the discretion of the Attorney General on a limited evidentiary issue in a domestic rape case, and says nothing about, nor has any applicability to civilian judicial review of the military justice system.[30]   In fact, Israeli courts have reviewed such decisions on countless occasions.[31]  
  • The UN HRC Goldstone follow-up Committee, led by Judge Mary McGowan Davis, also rejected PCHR and Al Haq’s allegations regarding a lack of civilian oversight of military decisions: “Israel’s military justice system provides for mechanisms to ensure its independence, in particular the fact that the MAG is not hierarchically subordinate to the Chief of General Staff and that his decisions are subject to review by the Attorney General and by the Supreme Court. The Committee has not received any new evidence that challenges this finding.”[32]
  • Despite its claims that Palestinians are denied “access to justice” in Israeli courts, PCHR, avails itself of those courts.  In December 2010, PCHR filed a petition with the HCJ seeking compensation for the Gaza War claiming a two-year statute of limitations prevented their claims.  In fact, Israeli law allows for a three-year extension.  Due to the NGO’s misrepresentation of Israeli law, on April 28, 2011, the HCJ rejected PCHRs complaint and ordered the organization to pay $3000 in legal fees.[33]   Nevertheless, PCHR continues to misrepresent Israeli law regarding the statute of limitations.[34]
  • PCHR’s accusations against the HCJ relating to the Shehade targeted killing are similarly unfounded.  In fact, the HCJ has adjudicated several claims arising out of the Shehade killing in two high profile cases: Public Committee Against Torture in Israel v. State of Israel (HCJ 769/02)[35]  and Yoav Hess v. Chief Military Prosecutor (HCJ 8794/03).[36]   In the PCATI case, the court reviewed the legality of Israel’s targeted killing policy.  The Hess case addressed the Shehade operation specifically.  In addition to these cases, the Israeli government formed an independent commission to investigate the operation, and the HCJ granted the right to the Hess plaintiffs to petition the court for review of the committee’s work should they be dissatisfied with the results.[37]  
  • Some of the same plaintiffs in PCHR’s Spanish lawsuit (as well as in the other cases orchestrated abroad by PCHR) had also previously filed civil cases in Israel over the strike.  Plaintiffs in Matar v. State of Israel (7606/03) filed in Kfar Saba Magistrate’s court seeking monetary compensation.  In 2004, the HCJ informed those who had been injured in the operation that they could file individual petitions against the government in Israeli court, but they chose not to do so.  Additional claimants filed suit in August 2004 in the Hadera courts, but the plaintiffs’ own attorney asked for dismissal after he was unable to contact the plaintiffs’ attorney in Gaza for more information.  The court agreed to dismiss the case without prejudice, meaning the plaintiffs would be able to re-file their case at a later date.

Public Committee Against Torture in Israel (PCATI) (Funded by: New Israel Fund, EU, UK, Norway, Netherlands, Sweden, Denmark, Switzerland, Ireland, Cordaid (Netherlands), ICCO (Netherlands), SIVMO (Netherlands), Trocaire (Ireland)

  • PCATI issued a publication, “When the exception becomes the rule” (December 28, 2010), denouncing the Israeli General Security Service (GSS – Shin Bet) for allegedly denying contact of some criminal detainees with their lawyers during interrogations. The publication also accuses the HCJ of enabling of the GSS’s claimed abuse.
  • In order to support its charges against the HCJ, PCATI alleges that, of the 80 appeals filed with the HCJ in 2005,[38]  half were dismissed and half were rejected by the court. PCATI does not mention, however, that the 40 dismissals occurred because a ruling was unnecessary: after the HCJ agreed to hear the petition, the GSS removed the restriction.   PCATI makes the sweeping claim that the HCJ does not interfere with the work of the GSS, a claim that overlooks many HCJ cases to the contrary, including 5100/94, Public Committee against Torture in Israel v. the Government of Israel and the General Security Service.  
  • PCATI has also joined Adalah, Al Haq, PCHR and FIDH in lobbying the Prosecutor of the International Criminal Court to open a case against Israeli officials – a notion premised on the alleged absence of due process in Israeli courts.

Israeli Courts, Human Rights, and International Law

NGO claims that Israel’s HCJ “is not amenable to hearing [] cases that deal with acts amounting to potential war crimes”[39] are simply false.

The HCJ is one of the most accessible courts in the world. There are few, if any, justiciability or standing limitations at the HCJ. Cases can be filed by anyone or any organization regardless of their connection to the facts or events at issue. The Court also takes a very broadminded view regarding the application of international humanitarian and human rights law.[40]   US Supreme Court Justice Elana Kagan has called former Israeli Supreme Court President Aharon Barak “my judicial hero” and “the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”[41]   Lord Woolf, former Lord Chief Justice of England and Wales, has stated that “the Israeli Supreme Court is one of the best courts he is aware of worldwide.”[42]

The HCJ has judged thousands of petitions (many of which were brought by the NGOs referred to in this paper) relating to Palestinian rights: examining the authority of the military commander according to the standards of proportionality; restrictions on place of residence; checkpoint positioning; human shields; harm to Palestinian property due to army operations; the safeguarding of freedom of worship and the right to access to holy places; the demolition of houses; the laying of siege; the powers of the army during combat pursuant to international humanitarian law; the rights of Palestinians to food, medicine, and similar needs during combat operations; the rights of Palestinians during the arrest of terrorists; and detention and interrogation procedures.  

In more than one hundred petitions, the HCJ “has examined the rights of [Palestinians] according to international humanitarian law as a result of the erection of the separation fence” and ordering a change in the route in some cases.[43]   The court has even reviewed military operations while they were underway and even while the Israeli government was in the midst of conducting political negotiations on the very issues brought before the court.[44]   In addition, the Court is empowered to review the appointment for the General Chief of Staff, Israel’s highest ranking army official.[45

Attacks on Israeli Investigations 

Coupled with inflammatory rhetoric against the Israeli Supreme Court, NGOs, most notably Human Rights Watch (HRW) and Amnesty International, have attacked the credibility and independence of Israeli investigations.  In most cases, these organizations reject such investigations prior to the review of any evidence or issuance of any reporting.[46]   They further dismiss the difficulty of conducting investigations in territory controlled by hostile entities and where most of the evidence has been compromised or is unavailable.  These campaigns routinely misrepresent the Israeli justice system, and include many false and unsourced claims.  

This strategy is used to support NGO efforts to have Israelis tried for war crimes in Europe and at the International Criminal Court.  Since the release of the Goldstone report and the Palestinian Authority declaration to the Prosecutor of the International Criminal Court (see below), NGOs have greatly increased this type of campaigning.  

Examples:
Amnesty International (Funding: Not transparent)
“Both Amnesty International and the Committee found that Israel’s investigations have lacked independence, appropriate expertise and transparency. More than 65 military probes have been closed without opening criminal investigations... Although some Israeli investigations are still ongoing, there is no indication that these investigations overseen by the Israeli military... will be impartial and transparent, or result in prosecutions for serious violations.”
“Amnesty International Launches International Justice Campaign for Gaza Conflict Victims” (January 20, 2011)

“Amnesty International has condemned the findings of an Israeli inquiry into last year’s raid on a Gaza-bound aid flotilla as a ‘whitewash’ which failed to account for the deaths of nine Turkish nationals.”
–“Israeli inquiry into Gaza flotilla deaths no more than a ‘whitewash’,” (January 28, 2011)[47

Human Rights Watch (HRW) (Funded by:  Trocaire [Ireland], Oxfam- NOVIB [Netherlands], Soros’ Open Society Institute, Ford Foundation)
“More than one year after the conflict, neither side has taken adequate measures to investigate serious violations or to punish the perpetrators of war crimes, leaving civilian victims without redress. Israel’s investigations have fallen far short of international standards for investigations.”
– “Turning a Blind Eye” (April 11, 2010)[48

Amnesty and HRW do not specify why Israeli investigations are not “impartial and transparent,” and they fail to offer concrete examples of how Israel has refused to take “adequate measures” in its investigations.  The Israeli government has already released three lengthy reports detailing its procedures in the aftermath of the Gaza War.[49]  

Similarly, the Turkel Commission, established to examine the May 2010 attack by members of the Gaza flotilla organized by the Turkish IHH terror organization, was monitored by two highly respected international observers, Lord David Trimble and Brigadier General (Ret.) Kenneth Watkin. Two leading legal experts in IHL and maritime law, Michael Schmitt and Prof. Wolff Heintschel Von Heinegg, advised the committee on the legal aspects.  The comprehensive report issued by the Commission is underpinned by a fully transparent investigatory process.[50]   In fact, even the Committee of Independent Experts, empanelled by the UN HRC to follow-up on recommendations made in the Goldstone report, noted “[a]n analysis of the transcripts of the public hearings demonstrates that the Commission members – with active participation from the international observers – thoroughly examined the controversial legal and political issues presented for their consideration.”[51]  

In an op-ed in the Washington Post on April 1, 2011, Richard Goldstone himself remarked that “our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis [head of the Committee of Independent Experts] has found that Israel has done this to a significant degree.”[52]

Moreover, contrary to the claims made by Amnesty, HRW, and other NGOs, recent legal scholarship has noted that Israel’s military justice system takes a “more extreme approach” in limiting the risk of undue influence and impartiality than other countries.[53]  As noted by Lindsy Alleman, “between the random selection of panel members, the statutory independence of judges and MAGs, and the great limitations placed on the already minimal disciplinary powers of the District Chiefs, the issue of unlawful command influence is moot in the Israeli military justice system.”[54

The Cox Commission, a special commission convened in 2001 to assess the military justice system of the United States, found that “in recent years, countries around the world have modernized their military justice systems, moving well beyond the framework created by the UCMJ fifty years ago. In contrast, military justice in the United States has stagnated, remaining insulated from external review and largely unchanged despite dramatic shifts in armed forces demographics, military missions, and disciplinary strategies.”  In making these assessments, the Commission specifically noted the influence of reform efforts in several foreign jurisdictions, including Canada and Israel.[55]

Decisions made by the three main bodies of Israel’s military justice system, the Military Advocate General’s Corps, the Military Police Criminal Investigation Division, and the Military Courts,[56]  are subject to review by civilian authorities.  The Israeli Attorney General may revisit decisions of the MAG regarding the opening of a criminal investigation and may order such an investigation to take place. NGOs or individual complainants may trigger this review simply by sending a letter to the Attorney General.[57]   Judgments from the Military Court of Appeals may be directly appealed to the HCJ.  The HCJ can also review and reverse decisions of the MAG, the military prosecution and/or the Attorney General whether to investigate or indict alleged misconduct.[58]  Furthermore, private individuals and NGOs may directly petition the court regarding the legality of IDF actions.

It is important to note that just because Amnesty International and HRW do not agree with the results of Israeli investigations, does not mean that credible investigations have not occurred or that due process has been violated.  Indeed, it is surprising that organizations which frequently demand strict adherence to the standards of due process, proclaim Israeli officials and soldiers guilty of “war crimes” and other criminal conduct simply prior to any investigation or judicial process.[59

Lobbying before the International Criminal Court

On January 21, 2009, the Palestinian Authority (PA) wrote to International Criminal Court Prosecutor Luis Moreno-Ocampo, ostensibly to accept the court’s jurisdiction so that the ICC could potentially prosecute Israelis for alleged “war crimes” committed during the Gaza War.   “Palestine” is not a recognized state and, as a result, is unable to become a party to the ICC.[60]   Nevertheless, Ocampo agreed to take the PA’s declaration under advisement.  Once it was clear Ocampo would not immediately reject the PA’s attempt to join the Rome Statute, NGOs began an intensive campaign to pressure the Prosecutor to rule in favor of the PA.  A key issue at the ICC should the Prosecutor agree to accept the PA’s submission and open an investigation against Israel, will be whether Israel has a credible justice system capable of adjudicating credible claims of suspected war crimes.  As a result, NGO lobbying of the Court has centered on attacking the legitimacy of Israel’s justice system.[61

Amnesty, HRW, and others have transmitted numerous communications to the Prosecutor.  On October 14, 2009, representatives of FIDH and PCHR met with Ocampo to discuss “ICC jurisdiction over the situation [in Palestine],” “the gravity of the crimes committed,” and “the willingness and capacity of national tribunals to conduct domestic proceedings for crimes under ICC jurisdiction.”  FIDH and PCHR, joined by Al Haq, Adalah, and PCATI, participated in a second series of meetings with ICC officials on November 2-3, 2009, to “explor[e] different avenues to bring justice to the victims of serious violations of international human rights and humanitarian law... including those committed by Israel and Palestinian armed groups during Israel’s military offensive on the Gaza Strip ‘Operation Cast Lead.’”[62]   In September 2010, PCHR and FIDH presented their own submission to the court aimed at disparaging the independence and due process of the Israeli justice system.[63]   Al Haq submitted a 22-page brief to Ocampo making similar claims.[64

Courts around the world reject NGO attacks on the Israeli legal system

Courts around the world have repeatedly and soundly rejected the NGO claims mentioned above, remarking on the high quality of Israeli due process.  For instance, in a decision issued on July 9, 2009, the Spanish Appeals Court wholly dismissed claims made by PCHR, stating that “the extensive and exhaustive documents submitted [by Israel] reveal the commencement of a series of criminal and civil proceedings well in advance of the presentation of the complaint in Spain.”  The court found that “it can be deduced that there has been genuine action, first on the part of the government and then on the part of the courts, to determine whether a crime may have been committed.”

The appellate judges further rejected PCHR’s claims that Israel’s investigations lacked credibility and that the plaintiffs were denied due process in Israel. Instead, the court found that PCHR’s allegations “do[] not tally with the court decisions that have been handed down in the proceedings in which the parties have intervened, among them many of the parties to the complaint brought in Spain, who have made use of the rights of allegation, proof and challenge provided for by law.”  Finally, the court noted that there was no “evidence of any malicious or unjustified procedural delay” by Israel, and that PCHR’s “disputing the impartiality and organic and functional separation” between the Israeli Military Advocate General, Israel’s Attorney General, and the government-appointed Investigation Commission, “involves ignoring [Israel’s] existence [as] a social and democratic state with rule of law.”

An April 13, 2010 ruling by the Spanish Supreme Court, found the appellate decision was a “well grounded and reasoned response.” The court also emphasized that Israel’s investigations are “substantive and genuine.”[65]

Al Haq’s attempts to impugn the Israeli justice system in foreign courts have also failed. In 2009, a Canadian court rejected a lawsuit filed by Al Haq, concluding that the plaintiffs were engaging in “inappropriate forum shopping.”[66]   The court highlighted that a “review of the evidence simply does not bear out [the] preconception” made by plaintiffs that the HCJ was “unwilling to adjudicate on a politically sensitive matter.”[67]   Moreover, the court found that the plaintiffs simply chose a Quebec forum to “avoid the necessity of... proving [their case] before the HCJ... thus ensuring for themselves a juridical advantage based on a merely superficial connection of the Action with Quebec.”[68]  An August 11, 2010, decision by the Canadian Court of Appeal affirmed the lower court’s dismissal, finding plaintiffs’ claims regarding Israel’s HCJ to be “devoid of merit.”[69]

In dismissing a 2009 lawsuit filed by Al Haq in the UK seeking a judicially imposed arms embargo on Israel and a declaration that Israel had committed violations of international law during the Gaza War, UK Justice Malcolm Pill stressed that “this is not a case in which the breach of international law is plain and acknowledged or where it is... clear to the court.”[70]   Pill criticized Al Haq’s citation to the International Court of Justice’s opinion on Israel’s Security Barrier as a legal precedent for judging Israeli actions in Gaza.[71]   He noted that, “the Wall Opinion considers different issues and there has been no authoritative judgment upon Operation Cast Lead.”[72]  Justice Cranston echoed Pill’s remarks, stating that “the [ICJ opinion] is not directly applicable to Gaza.”[73

US Courts have also discarded claims attacking Israel’s legal system.  In a 2005 case filed by the New York-based Center for Constitutional Rights[74]  regarding an Israeli military operation in Lebanon, the US DC Circuit Court of Appeals, affirming the dismissal of a lower court, found that the plaintiffs could point to “no case where similar high-level decisions on military tactics and strategy during a modern military operation have been held to constitute torture or extrajudicial killing under international law.”[75]   The Southern District Court of New York has similarly found that there was no evidence “to support that mass indictment of [Israel’s] judicial system... Indeed, readers of newspapers are aware of the fact that Israeli courts are entirely capable of making judgments displeasing to those in high civil or military authority.”[76]  The European Court of Human Rights also frequently relies on Israeli precedent in its case law. [77]  

False Allegations of Due Process Violations:  Bil’in Demonstrators, Ameer Makhoul, Shawan Jabarin

Many NGOs make false accusations of due process violations in order to advance their political agendas.  They provide no specific evidence to back their charges, and often omit or ignore vital facts from the cases, misrepresenting events.  The Bil’in demonstrators, Ameer Makhoul, and Shawan Jabarin are just three high profile examples of this type of campaigning.

Bil’in Demonstrations
Violent demonstrations by internationals, Israeli anarchists, and Palestinians at the security barrier in Bil’in and elsewhere are a frequent topic of NGO condemnations of Israel.  These include inflammatory rhetoric and claim that Israel is violating due process rights in order to “punish peaceful protest.”  

Despite NGO characterizations, the Bil’in protests are hardly “peaceful.”  There is extensive documentation of Bil’in demonstrators harassing Israeli soldiers and police, instigating violent confrontations, and engaging in vandalism and other forms of destruction.[78]   Demonstrators use slingshots, Molotov cocktails, rods, and other weaponry to attack soldiers.[79]   Hundreds of Israeli security officials have been injured, some seriously.[80]   This is not protected activity under any system of law, be it local Israeli laws, human rights treaties, international humanitarian law, or otherwise.  Moreover, it has been documented that terror groups like the PFLP play an active role in these demonstrations.[81]   Flags and other paraphernalia of the terror organization are routinely distributed.

Leaders of the Bil’in movement have also tried to cover up the attempted rape of a foreign female activist by a Palestinian man in April 2010 “to avoid tainting the image of the popular protest.”[82]   Several “protest committees” have discussed other incidents of Palestinian sexual assaults on foreign activists.  The International Solidarity Movement (ISM) has included a “sexual assault and harassment” section in its training program for volunteers, stating “we have heard about a lot of sexual harassment and assault specifically towards women in the West Bank.”  Ha’aretz reported that “leaders of the Palestinian popular protests in villages such as Bil'in, Na'alim, Umm Salmuna, have been trying to keep [this] story away from both public knowledge and the media’s eye.”

Not only do the NGOs referenced in this paper suppress information regarding violence, intimidation, and involvement of terror groups at these demonstrations, but HRW, Amnesty, Al Haq, B’Tselem and other NGOs did not report on these incidents of sexual assault.  NGO Monitor contacted several B’Tselem officials on two occasions, seeking information regarding any investigation the organization might be conducting regarding these very serious charges. B’Tselem did not respond.

Similarly, NGOs make claims of due process violations against arrested demonstrators, alleging political persecution and omitting critical information.  Jonathan Pollak, a frequent participant in these demonstrations and subject of NGO publications, was sentenced in December 2010 to a three month term in jail.  NGOs claimed he was being “punished” for political activism. Pollak, however, was not sentenced because of alleged “selective enforcement of criminal laws in order to punish peaceful protest,” as claimed by HRW, but rather because he violated the terms of his probation from a 2004 arrest.[83] At his hearing in 2010, Pollak was presented with the option of paying a fine or performing community service in lieu of jail time, but he rejected those offers, preferring to portray himself as a political martyr.  In February 2011, the Israeli prison service also agreed to reduce his sentence by one-third.  Like Pollak, another demonstrator championed by NGOs, Abdallah Abu Rahma, received an extended prison sentence because he too violated the terms of his parole from a previous arrest, not because he was “voicing [his] opposition to the construction of the fence/wall.”[84]

Disturbingly, rather than advancing human rights and rule of law, these NGO campaigns appear to be promoting vigilantism and anarchy – advocating a supposed right to break the law, defy court orders, engage in violence and destruction of property in order to advance personal political causes.[85]

Examples:
HRW
“An Israeli military appeals court's decision on January 11, 2011, to increase the prison sentence of a Palestinian man who protested Israel's construction of a separation barrier in the West Bank compounds the grave due process concerns raised by his conviction, Human Rights Watch said today.”[86]

"Abdallah Abu Rahme, an advocate of nonviolent protests against Israel's de facto confiscation of land from the West Bank village of Bil'in.”

“In another case involving a peaceful protester, Jonathan Pollak began serving a three-month sentence on January 11. This case appears to involve the selective enforcement of criminal laws in order to punish peaceful protest, Human Rights Watch said today.”
–“Israel/West Bank:  Jail for Peaceful Protestors” (January 11, 2011)

B’Tselem (Funded by: EU, UK, Sweden, Switzerland, Denmark, Netherlands, Norway, NIF, Christian Aid [UK], Trocaire [Ireland], Ford Foundation, DanChurchAid [Denmark], Diakonia [Sweden], EED [Germany], ICCO [Netherlands] SIVMO [Netherlands])
“Abu Rahma's conviction should be viewed in the context of the army's recent efforts to quell demonstrations against the Separation Barrier in the West Bank. As part of this attempt, security forces have arrested many demonstration organizers, have used violence to disperse demonstrations, and have deported several foreign activists.”
–“Dark shadow hangs over conviction of Bil'in anti-barrier protest leader” (October 10, 2010)

Amnesty
“By extending Abdallah Abu Rahma's sentence the Israeli authorities appear to be seeking not only to punish him further in a case where the prosecution’s evidence was questionable to begin with, but to deter others from participating in legitimate protests”

“The arrests of Abdallah Abu Rahma and other prominent activists against the fence/wall in 2010 have been part of a crackdown on those voicing their opposition to the construction of the fence/wall.”
–“Israeli Military Court Extends Jail Term for Palestinian Anti-Wall Activist” (January 11, 2011)

Yesh Din (Funding:  EU, Ireland, Netherlands, Germany, Denmark, Switzerland, Sweden, Norway, UK, OSI, NIF, Oxfam-Novib)
“Bassem Abu Rahmeh, [] was killed in a non-violent protest in Bil'in on April 17th, 2009. The Israeli MilitaryAdvocate-General (MAG) decided to open an investigation into the killing only after rights groups Yesh Din and B'tselem threatened to file a petition to the High Court of Justice. It has been six months since, but so far there are no signs an investigation is underway.”[87]
–“Lack of Investigations Assures More Deaths” (January 1, 2011)

Ameer Makhoul
On January 30, 2011, a Haifa District court sentenced Ameer Makhoul, the director of Israeli- Arab NGO Ittijah, to nine years in prison for spying and contact with a foreign agent from the Hezbollah terror organization.  Makhoul admitted to installing an encryption device on his computer received from a Hezbollah agent in Denmark and transmitting at least ten coded messages.  In addition, he provided to Hezbollah the names of six potential spies in Israel.  He was arrested in May 2010, shortly after attempting to meet with the Hezbollah agent in Jordan.  

Makhoul, as head of Ittijah, had a history of anti-Israel activities characterized by demonization and antisemitic rhetoric. Ittijah played a prominent role at the 2001 UN Durban Conference and initiated a campaign to “boycott Israel, to impose sanctions and to label it as a colonial racist state under the Motto: Zionism is Racism – Israel is an Apartheid State,” in preparation for the April 2009 Durban Review Conference.  During the Gaza war, an Ittijah email claimed that “the IDF is turning Gaza into kind of an extermination camp, in the full sense of the word and with the full historical relativity.”[88]  

Despite the serious charges against Makhoul and his admission of working with Hezbollah, NGOs defended him and attempted[89]  to portray the Israeli justice system as illegitimate, targeting Makhoul for allegedly being a “human rights defender.”  None of these organizations pointed to specific or concrete evidence that Makhoul’s rights had been violated or that he was treated unfairly during the criminal process.[90]   Instead, they resorted to vague and unfounded political charges:

Amnesty International
"[Makhoul’s] arrest and continued detention smacks of pure harassment, designed to hinder his human rights work.”
–“Israel Must Stop Harassment of Human Rights Defender” (May 10, 2010)[91]

“Ameer Makhoul's jailing is a very disturbing development and we will be studying the details of the sentencing as soon as we can... Ameer Makhoul is well known for his human rights activism on behalf of Palestinians in Israel and those living under Israeli occupation. We fear that this may be the underlying reason for his imprisonment.”
–“Palestinian Human Rights Activist Jailed in Israel” (January 30, 2011)

Adalah
“It is Adalah’s view that the conduct of the Israeli security services is arbitrary and political, and violates the basic principles of fair procedures and standards of human rights. Furthermore, inflating the charges made against Mr. Ameer Makhoul... is aimed at... silencing the voice of public protest...”

“Adalah regards the charge of meeting a foreign agent as a loose charge that allows the GSS to criminalize almost any Arab who establishes legitimate relations with political and social activists in the Arab world.”[92]
–“The GSS is Attempting to Criminalize the Public Political and Social Activity of Arab Citizens” (May 10, 2010)

Shawan Jabarin
Another frequent cause for NGOs is that of Al Haq’s General Director Shawan Jabarin.  On several occasions, Jabarin has been denied travel visas by the Israeli government because of his links to the Popular Front for the Liberation of Palestine (PFLP) terror organization. In 1985, Jabarin was convicted for recruiting members on behalf of the PFLP.  Jabarin was also found guilty of arranging PFLP training outside Israel, and was sentenced by Israeli courts to 24 months imprisonment, of which he served nine.  In 1994, he again was arrested for continued involvement with the PFLP. For similar reasons, Jordan denied Jabarin entry in 2003.

At his many hearings regarding the travel restrictions, the HCJ noted that Jabarin “is among the senior activists of the terrorist organisation, The Popular Front for the Liberation of Palestine.”  It also stated:

[Jabarin] is apparently active as a Dr Jekyll and Mr Hyde, in part of his hours of activity he is the director of a human rights organisation, and in another part he is an activist in a terrorist organisation which does not shy away from acts of murder and attempted murder, which have nothing to do with rights, and, on the contrary, deny the most basic right of all, the most fundamental of fundamental rights, without which there are no other rights – the right to life.

A 2009 decision by the HCJ found that “material pointing to [Jabarin’s] involvement in the activity of terrorist entities is concrete and reliable.”  

HRW[93]
“The Israeli High Court's decision on March 10 to block travel outside the West Bank of the human rights defender Shawan Jabarin violates his rights to a fair hearing and freedom of movement, Human Rights Watch said today.”

“Based on secret evidence that neither Jabarin nor his lawyer were allowed to see, the court refused to lift a travel ban imposed on Jabarin by military order in 2006, shortly after he became the director of Al-Haq, a leading human rights organization in the Occupied Palestinian Territories.”
–“Israel Blocks Rights Defender’s Travel,” March 10, 2009

“Since March 23, 2006, Israeli security officials have refused Jabarin’s requests to travel abroad for professional purposes and in response to invitations from international nongovernmental organizations. Israeli authorities have not explained why the restrictions are in place, nor have they responded to a Human Rights Watch letter to Israeli Prime Minister Ehud Olmert on March 11, 2007 requesting that the Israeli government lift the travel ban against Jabarin.”
–“Israel Lift Travel Ban on Human Rights Activist,” May 5, 2007

FIDH
“The Observatory expresses its deepest concern about the ongoing travel restrictions against Mr. Shawan Jabarin, which seem to merely aim at sanctioning his human rights activities.”
–“Ongoing travel restrictions imposed on Mr Shawan Jabarin,” April 12, 2010

As demonstrated, NGO publications on Jabarin’s case misstate the facts and invariably omit or minimize his connections to the PFLP terror group.[94]   Instead, these groups claim that Jabarin is being harassed for being a “human rights defender.”  They claim he has been denied due process because “secret evidence” was used at the numerous HCJ hearings on his case.  

The fact that classified information was utilized in camera in a judicial process does not invalidate that process and is used by many countries including the US and the UK.  As noted by legal scholars Barak-Erez and Waxman,

The main analytic challenge is to transcend the simplistic divide between those who oppose the use of secret evidence under all circumstances and those who would justify non‐disclosure in the name of national security in a sweeping manner.[95]

In order to provide a balance between national security concerns and due process rights, the Israeli Supreme Court “has developed an activist approach in its review role of the nondisclosed evidence” and that this “reflects a priority on accuracy.”[96]  The court imposes a “special and enhanced duty” where it applies a “judicial management approach emphasizing robust court scrutiny of secret evidence,” acting “almost as the detainee’s advocate.”[97

Claims that Jabarin is being persecuted by Israel for his affiliation with Al Haq are similarly absurd.  Despite the inflammatory and demonizing content of Al Haq and Jabarin’s publications and speeches,[98]  Al Haq freely operates out of Ramallah.  Its website is not subject to any Israeli censorship, and the organization and its representatives routinely promote their anti-Israel campaigns in UN frameworks and international conferences abroad, including the Human Rights Council and the International Criminal Court.  Jabarin himself also appears at events via video conference, including the Goldstone hearings in Geneva in July 2009.

NGO ignore due process in their own campaigns

Although NGOs frequently attack the supposed lack of Israeli “due process,” these same organizations show little respect for the norms they seek to impose on Israel.  One example of such inconsistency involves the principle of the presumption of innocence.  Article 14(2) of the International Covenant on Civil and Political Rights states that, “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”  The UN Human Rights Committee elaborates that: 

The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. (emphasis added)

Despite this fundamental human right, NGOs routinely and immediately declare Israeli officials and military personnel guilty of crimes without any concrete evidence and prior to any investigation or judicial process.[99]   In several cases, these publications are based on false reports of events and are not retracted when NGO claims turn out to be unfounded.  This is in contrast to their campaigns on behalf of Hamas members, Palestinian prisoners, and convicted criminals such as Hezbollah spy Ameer Makhoul (described above), giving them the benefit of the doubt.

Examples:
B’Tselem
On whether to classify Hamas police as civilians or combatants:

“An additional 248 [Hamas] police officers were killed in police stations, most of them on the first day of the operation. As is clearly stated on our website, B’Tselem has placed them in a separate category since it does not have sufficient information on the functions of the Palestinian Police and its connection with organized armed groups in Gaza. Therefore, it cannot be stated with certainty whether the police officers were legitimate targets or not.” (emphasis added)
Letter to the Editor, Jerusalem Post, January 11, 2011

“Even if the army spokesperson's statement is accurate, the large toll of civilian lives renders the attack a grave breach of international humanitarian law. In the current situation in the Gaza Strip, it is hard to think of a definite military advantage that could have been achieved by bombing the house and killing Rayan [Hamas’ senior military commander] that can justify the killing of 13 women and children.” (emphasis added)[100]
–Press Release, “The killing of Nizar Rayan and 15 members of his family,” January 4, 2009

These two statements show B’Tselem’s willingness to give Hamas members the benefit of the doubt as to whether they should be classified as civilians or combatants.  In contrast, Israeli officials are immediately declared guilty of committing a “grave breach of international humanitarian law” without any judicial process and even though B’Tselem possesses none of the information (activities of Rayan and his family, anticipated casualties, military advantage) required to make such an assessment.

Amnesty
“Israeli forces... are committing violations of international humanitarian law and human rights abuses, some of which constitute war crimes or crimes against humanity... war crimes and crimes against humanity are among the gravest crimes under international law... Israeli forces have been carrying out indiscriminate and disproportionate attacks that have killed hundreds of unarmed civilians.”
Interview with Amnesty researcher, Donatella Rovera, January 12, 2009

Oxfam(Funded by: UK, EU)
“The international community must not stand aside and allow Israeli leaders to commit massive and disproportionate violence against Gazan civilians in violation of international law.”
–Press Release, “Gaza: Bombing Severely Reduces Oxfam Aid Programme,” December 29, 2008

HRW
“Human Rights Watch found that Israeli forces failed to take all feasible precautions to verify that these targets were combatants, as required by the laws of war, or that they failed to distinguish between combatants and civilians... As a result, these attacks violated international humanitarian law (the laws of war).”[101]
–“Precisely Wrong,” June 30, 2009

Al-Haq, Adalah, Arab Association for Human Rights, Al-Dammer, Al-Mezan, Badil, PCHR, Musawa, PNGO
“Representing the Palestinian human rights community, we write to you with an urgent request for intervention by the UN Human Rights Council to put an end to the war crimes and crimes against humanity being committed in the Occupied Palestinian Territory (OPT) as a result of the Israeli occupying forces´ ongoing attacks on the Gaza Strip… Grave breaches of the Fourth Geneva Convention amounting to war crimes, have been committed, including, willful killing and the extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly. Furthermore, the continuing collective punishment of the Gaza strip has left medical services unable to deal with the increasing number of victims.”
–Letter, “Gross Human Rights Violations and War Crimes in the Gaza Strip – The UN Human Rights Council must urge the General Assembly to act under Resolution 377,” 30 December 2008

Immediate declarations of Israeli guilt were also acute regarding an alleged Israeli strike on an UNWRA school on January 6, 2009.  Many NGOs issued publications accusing Israel of murdering 43 civilians and demanded Israeli officials be punished for the alleged crime.  In reality, no civilians were killed at the school and nine Hamas fighters were killed in the area after firing on IDF troops.[102

Adalah, Al Mezan, Al Haq
“In a separate incident on Tuesday, 6 January 2009, Israeli artillery missiles landed near the UNRWA Al-Fahura School for Girls. One of the missiles landed in the school yard, killing 40 people and injuring at least 100 others… Adalah Attorney Fatmeh El-‘Ajou stated that both events, in which mostly children were killed, constitute grave breaches of international humanitarian law and amount to war crimes.”
– Press Release, “HR Organizations Demand Criminal Investigations by Israel into the Bombing of Two UNRWA Schools in Gaza Resulting in Dozens of Civilian Deaths,” January 13, 2009

International Commission of Jurists (Funded by: Austria, Finland, Cyprus, Britain, Sweden, France, Greece, Ireland)
“Israel’s attacks have been indiscriminate or disproportionate... Violations of the prohibitions against indiscriminate and disproportionate attacks, such as through shelling the UN school in Jabaliya that claimed 43 casualties,  constitute crimes under international law.”
– Letter to UN Human Rights Council, “ICJ Intervention on Serious Violations of Human Rights Law and Grave Breaches of International Humanitarian Law during the Israeli Military Operations in Gaza,” January 12, 2009 

Independence and Neutrality

Another key component of due process involves judicial independence and fairness.  Again, although NGOs demand that Israel ensure fair and independent investigations, they rarely adhere to such standards themselves.  As delineated in the Lund-London Guidelines on International Human Rights Fact Finding Visits, issued by the Human Rights Institute of the International Bar Association:

  • Reports must be clearly objective and properly sourced, and the conclusions in them reached in a transparent manner…  In making their findings the delegation should try to verify alleged facts with an independent third party or otherwise.  Where this is not possible, it should be noted.
  • The terms of reference must not reflect any predetermined conclusions about the situation under investigation.
  • The mission’s delegation must comprise individuals who are and are seen to be unbiased.  The NGO should be confident that the delegation members have the competence, experience and expertise relevant to the matters pertaining to the terms of reference.

NGOs repeatedly violate these legal, ethical, and moral principles.  As shown in the examples above, these organizations invariably issue predetermined conclusions regarding Israeli guilt prior to any investigation or judicial process, and tailor their publications to such conclusions rather than engage in independent fact-finding.  NGOs rarely verify claims with independent third parties, a highly problematic failure given the closed environments of Gaza and South Lebanon, where NGO representatives are shadowed by Hamas and Hezbollah officials.  NGOs repeatedly staff their missions with individuals tainted by bias and conflicts of interest.  In many cases, NGOs refuse to reveal the names of their delegations making verification of competence and expertise impossible.  And as NGO Monitor research has revealed on dozens of occasions, NGOs, like HRW, continue to staff their Middle East departments with pro-Palestinian activists, rather than neutral professionals.

In addition, although these NGOs call for independent international investigations of Israeli actions, they do not demand that these international frameworks be free from bias, and even closely cooperate with and lobby for such tainted frameworks despite the lack of procedural fairness.  In particular, these organizations work in conjunction with repressive and authoritarian regimes at the UN Human Rights Council, supporting one-sided initiatives of the Arab League and the Organization of the Islamic Conference.[103]   NGOs further promote and lobby for the appointment and work of anti-Israeli ideologues in international frameworks, such as Goldstone mission member Christine Chinkin, UN Rapporteurs Richard Falk and John Dugard, and Goldstone follow-up committee member Christian Tomuschat.[104]   As highlighted by Robert Bernstein, the founder of HRW:

In one such small incident, the UN Human Rights [Council], so critical of Israel that any fair-minded person would disqualify them from participating in attempts to settle issues involving Israel, got the idea that they could get prominent Jews known for their anti-Israel views to head their investigations. Even before Richard Goldstone, they appointed Richard Falk, professor at Princeton, to be the UN rapporteur for the West Bank and Gaza. Richard Falk had written an article comparing Israel’s treatment of Palestinians in the West Bank and Gaza to Hitler’s treatment of the Jews in the Holocaust. Israel, believing this should have disqualified him for the job, would not allow him into the country. Human Rights Watch leapt to his defense, putting out a press release comparing Israel with North Korea and Burma in not cooperating with the UN. I think you might be surprised to learn the release was written by Joe Stork – Deputy Director of Human Rights Watch Middle East Division – whose previous job for many, many years, was as an editor of a pro-Palestinian newsletter. 

Conclusion

The NGO campaigns highlighted in this report, including attacks on the Israeli Supreme Court, lobbying at the International Criminal Court, and publications maligning Israeli due process and rule of law, are largely manufactured as part of a coordinated strategy to internationally isolate Israel and weaken its ability to protect its citizens from asymmetrical war.  They are used to bolster BDS and lawfare campaigns and prominently feature in the Goldstone Report and NGO lobbying at the International Criminal Court.  Such NGO activities are characterized by hypocrisy, double standards and, in their more extreme form, even advocate sabotaging the Israeli courts.  Given these destructive objectives, the funders of these organizations must be held to account and explain how support for these organizations is in keeping with policy-goals of peace, co- existence, and a negotiated settlement to the Arab-Israeli conflict. 

Endnotes

[1]  Diakonia, “Conference Report: Palestine/Israel: Making Monitoring Work: (Re-)Enforcing International Law in Europe,” September 2008.  Report available on file with the author.
[2]  Adalah receives substantial funding from the EU (€1,141,210, 2006-10) and the New Israel Fund ($1,045,292, 2006-08).
[3]  Dan Pine, “Goldstone defends Gaza report in Berkeley talk,” February 24, 2011, JWeekly, available at http://www.jweekly.com/article/full/60973/goldstone-defends-gaza-report-in- berkeley-talk/
[4http://legal-dictionary.thefreedictionary.com/Rule+of+law.
[5Id.
[6]  Black's Law Dictionary.
[7]  IBA Resolution on Rule of Law, adopted 29 September 2005 (Prague).  Text available in International Bar Association, “Commentary on the IBA Council ‘Rule of Law’ Resolution of September 2005,” October 8, 2009, available at http://www.ibanet.org.
[8]  Matthew Waxman and Daphne Barak-Erez, "Secret Evidence and the Due Process of Terrorist Detentions,” Columbia J. Transnational Law, Working Paper Series 09-218 at 11, available at http://ssrn.com/abstract=1511858.
[9]  United Nations International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171.
[10Id.
[11]  European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221.
[12http://www.knesset.gov.il/description/eng/eng_mimshal_yesod2.htm#7; http://www.unhcr.org/refworld/type,LEGISLATION,,ISR,3ae6b60a4,0.html.
[13]  See e.g., AHARON BARAK, THE JUDGE IN A DEMOCRACY, (Princeton 2006); See also Aharon Barak, “A Judge on Judging:  The Role of a Supreme Court in a Democracy,” 116 Harv. L. Rev. 16 (2002). See also Gruber Justice Prize, “Israel's Aharon Barak Receives 2006 Gruber Justice Prize,” available at http://www.gruberprizes.org/GruberPrizes/Justice_PressRelease.php? awardid=1; Stephen Goldstein, “Protection of Human Rights by Judges: The Israeli Experience,” 38 St. Louis L.J. 605, 608 (1994).
[14See, id.
[15]  See supra note 1.
[16]   See, e.g. NGO Index A-Z, NGO Monitor, available at http://www.ngo-monitor.org/ngo_index.php?letter=A. 
[17] Al Haq, “Legitimising the Illegitimate? The Israeli High Court of Justice and the Occupied Palestinian Territory,” Nov. 2010, available at http://www.alhaq.org/pdfs/legitimising.pdf.
[18]  As noted, these are just a few of the hundreds of examples documented by NGO Monitor.
[19]  “NIF Has Crossed the Line,” NGO Monitor, May 14, 2010, available at http://www.ngo-monitor.org/article/nif_detailed_research.  Notably, despite Jabareen’s claims, Adalah has filed dozens of cases where the Supreme Court has reviewed such acts and the organization has even prevailed on several occasions in changing Israeli policy.
[20]   April-May 2010 Digest, NGO Monitor, available at http://www.ngo- monitor.org/article.php?id=2924
[21]   Anne Herzberg, “NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict,” NGO Monitor Monograph Series, December 2010 (2nd Edition), at 51-2, available at http://www.ngo- monitor.org/data/images/File/lawfare-monograph.pdf.
[22]  Al Haq, “Legitimising the Illegitimate? The Israeli High Court of Justice and the Occupied Palestinian Territory,” Nov. 2010, available at http://www.alhaq.org/pdfs/legitimising.pdf
[23]  The Canadian Appellate Court found these claims to be “devoid of merit” (see below what below?).
[24]  Apparently, Al Haq’s vision of “justice” does not accept differing opinions.  It is notable that several ICJ judges highly criticized the opinion, filing strongly worded dissents
[25See, Herzberg, supra note 21.
[26Id. at 50.   
[27]  Genuinely Unwilling: An Update (Aug. 2010). PCHR, available at  http://www.pchrgaza.org/files/2010/Genuinely%20Unwilling%20-%20An%20Update.pdf. 
[28]  The NGOs, Al Mezan, Al Haq, Badil, Defence for Children International-Palestine Section, and FIDH, joined PCHR in making this same allegation in a written submission filed with the UN Human Rights Council. “Joint Written Statement – Human Rights Council 15th Session, The Failure to Conduct Genuine Criminal Investigations and Prosecutions at the National Level,” September 1, 2010, available at www.alhaq.org/pdfs/2+Joint+Written+Statement+- +The+failure+to+conduct+genuine+investigations.pdf
[29]  “The decision made by the prosecuting authorities to close an investigation file on the basis of a lack of sufficient evidence[…] normally falls within the „margin of appreciation‟ that is afforded to the authorities and curtails – almost to nil – the scope of judicial intervention.” http://elyon1.court.gov.il/files/07/990/056/N45/07056990.n45.pdf.
[30]  Further discrediting the charges of these NGOs, an Israeli court issued a verdict on December 30, 2010 against the defendant referred to in the case cited by PCHR, convicting him on two charges of rape.
[31 See, e.g., Ashraf Abu Rahma et al. v. Military Advocate General, HCJ 7195/08 (1 July 2009); Jamal
Abed al Kader Mahmoud Zofnan et al. v. Military Advocate General
, HCJ 425/89 (1989).  See also the case of Bassem Abu Rahmeh discussed at n. 81, infra.
[32See Report of the Committee of independent experts in international humanitarian and human rights law established pursuant to Council resolution 13/9, March 18, 2011, available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.24_AUV.pdf. [33]  Aviad Glickman, “Court allows five years for Cast Lead claims,” Ynet, April 28, 2011, available at www.ynetnews.com/articles/0,7340,L-4062105,00.html
[34]  PCHR, Israel’s High Court of Justice Dismisses Petition Filed on Behalf of More Than 1,000 Victims of Operation Cast Lead, April 30, 2011, available at http://www.pchrgaza.org/portal/en/index.php? option=com_content&view=article&id=7418:israels-high-court-of-justice-dismisses-petition-filed-on-behalf-of-more-than-1000-victims-of-operation-cast-lead- &catid=36:pchrpressreleases&Itemid=194
[35]  HCJ 769/02 Public Committee Against Torture in Israel v. State of Israel [2002].
[36]  HCJ 8794/03 Yoav Hess v. Chief Military Prosecutor [2003].

[37]  The Spanish Supreme Court found these efforts to be “substantive and genuine” (see more below – where?).
[38]  The very fact that those who felt they were wronged were able to file more than 80 appeals, in itself negates PCATI’s claims against the HCJ.
[39]    See Diakonia Conference Report, supra note 1.
[40]  See e.g., AHARON BARAK, THE JUDGE IN A DEMOCRACY (Princeton 2006); See also Aharon Barak, “A Judge on Judging:  The Role of a Supreme Court in a Democracy,” 116 Harv. L. Rev. 16 (2002); Richard Posner, “Enlightened Despot,” The New Republic, April 23, 2007, available at http://www.tnr.com/article/enlightened-despot; Eli Salzburger, “Judicial Activism in Israel: Sources, Forms and Manifestations,” May 2007, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=984918 (noting that “access to the Israeli High Court of Justice is extremely easy, and the relief is fairly quick and efficient. One does not need to go through lower instances, there are no witnesses or regular trial procedures, the application to the Court is inexpensive and one does not even have to be represented.”)
[41]  “Elena Kagan: Aharon Barak my judicial hero,” YNet News, Jun. 25, 2010, available at http://www.ynetnews.com/articles/0,7340,L-3910619,00.html. 
[42]  See Salzburger, supra note 41.
[43]  Remarks of Justice Aharon Barak, Brandeis University “Colloquium on Israel and International Law,” January 3, 2010.  Notes on file with the author.
[44]  See, e.g. Physicians for Human Rights v. Prime Minister of Israel, HCJ 201/09 and 248/09 (19 January 2009); Almadani v. IDF Commander in Judea and Samaria, H.C. 3451/02, available at  http://elyon1.court.gov.il/files_eng/02/510/034/a06/02034510.a06.pdf.
[45]  Israeli NGOs, such as Yesh Gvul and Gush Shalom, have tried to block the appointments of Yoav Galant, Yair Naveh, and Beni Gantz.  “Barak, Netanyahu decide: Galant will not be next IDF chief,” Jerusalem Post, February 1, 2011, available at
 http://www.jpost.com/Defense/Article.aspx?id=206259; Herb Keinon, et. al.,“Turkel panel to evaluate Gantz for next IDF chief,” Jerusalem Post, February 7, 2011, available at http://www.jpost.com/Defense/Article.aspx?id=207117.
[46]  See NGO Monitor, “HRW, Amnesty, and the Reuters Camerman Incident,” August 19, 2008, available at http://www.ngo- monitor.org/article/hrw_amnesty_and_the_reuters_cameraman_incident.  Amnesty attacked Israel’s investigation without ever reading the detailed 17-page report issued by the investigatory body. 
[47] Israel’s flotilla inquiry not only included Israeli officials, but highly respected international observers and legal experts.
[48See NGO Monitor, “HRW Presses Goldstone Campaign, Ignores Exposés, April 13, 2010, for NGO Monitor's analysis of this report, available at  http://www.ngo- monitor.org/article/hrw_presses_goldstone_campaign_ignores_expos_s.
[49]  Ministry of Foreign Affairs of Israel, “The Operation in Gaza - Factual and Legal Aspects,” July 29, 2009, available at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Operation_in_Gaza-Factual_and_Legal_Aspects.htm;
“Gaza Operation Investigations:  An Update (January 2010)”available at http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-A1D2-
8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf
; “Gaza Operation Investigations:  Second Update (July 2010),” available at
http://www.mfa.gov.il/NR/rdonlyres/1483B296-7439-4217 -933C-653CD19CE859/0/GazaUpdateJuly2010.pdf
[50See http://www.turkel-committee.gov.il.  The Committee’s website includes comprehensive information, copies of requests for documents, transcripts from the hearings, etc…  The Committee has also recommended that the government publish certain parts of the report that were classified for security reasons. 
[51http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.24_AUV.pdf. [52]  Richard Goldstone, “Reconsidering the Goldstone Report on Israel and war crimes,” The Washington Post, April 1, 2011, available at  http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html.
[53]  Lindsy Nicole Alleman, Who is in Charge and Who Should Be?  The Disciplinary Role of the Commander in Military Justice Systems, 16 DUKE J. COMP. & INT'L L. 169, 178 (2006).
[54] Id. at 180.  The author employs the following definition for "unlawful command influence": "The improper interference by a superior in command with the independent judgment of a person responsible for judicial decision," citing Charles A. Shanor & L. Lynn Hogue, MILITARY LAW IN A NUTSHELL 117 (1996).
[55]  Alleman, supra note 50, at 173.  See also Major General Menachem Finkelstein, Major Yifat Tomer, The Israeli Military Legal System – Overview of the Current Situation and a Glimpse into the Future, AIR FORCE L. REV., Winter 2002, 161-62.
[56]  Ministry of Foregin Affairs of Israel, Gaza Operation Investigations: An Update (January 2010) at 3-6, available at http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-A1D2 8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf.
[57]  See, e.g, Finkelstein & Tomer, supra note 52, at 163; Gaza Operation Investigations: An Update (January  2010)  at para. 33.
[58]  Gaza Operation Investigations: An Update (January 2010), supra note 53, at para. 34.
[59]  HRW and its Executive Director Kenneth Roth, for example, have repeatedly misrepresented statements made by former Israeli Defense Minister Tzipi Livni, to portray her as authorizing the unfettered killing of Palestinian civilians and to support their campaigns for prosecution of Israeli officials at the International Criminal Court.  HRW and Roth have refused to retract these defamatory claims even after their distortions were exposed in the media.  See Anne Herzberg, “European-Funded Al Haq: Source of the Livni Blood Libel?,” NGO Monitor, available at http://www.ngo-monitor.org/article/ngo_gaza_war_myths_revisited#livni.
[60]  See, e.g. David Davenport, et al, “Palestinian Declaration and ICC Jurisdiction,” November 19, 2009, available at http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE -45B1-ACC0-B41706BB41E5/281873/Paldeclandiccjurisd.pdf.
[61]  Importantly, as noted by the Committee appointed by the ICTY Prosecutor to review alleged wrongdoing by NATO forces during the 1999 Kosovo campaign, “much of the material submitted to the Office of the Prosecutor consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed.”  Similarly, HRW’s and Amnesty’s reports relating to Gaza simply highlight a few extremely emotive incidents from which these organizations draw overly broad and unfounded conclusions regarding Israel’s compliance with international law.  International Criminal Tribunal for the former Yugoslavia, “Final report to the Prosecutor by the committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia,” available at http://www.icty.org/x/file/About/OTP/otp_report_nato_bombing_en.pdf.
[62]  FIDH, “Palestinian and Israeli Human Rights Organizations in the Hague,” November 5, 2009 available at http://www.fidh.org/Palestinian-and-Israeli-human-rights.
[63]  International Criminal Court, “Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements,” May 3, 2010, available at www.icc-cpi.int/menus/icc/structure of the court/office of the prosecutor/comm and ref/palestine/summary of submissions on whether the declaration lodged by the palestinian national authority meets
[64]  Al-Haq Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute, available at http://www.alhaq.org/pdfs/position-paper-icc-(14December2009).pdf.
[65]  Herzberg, supra note 21.
[66]  Decision of Justice Paul Cullen in Bil’in Village Council v. Green Park Int’l, et.al., September 18, 2009, at para. 327.  Available on file with the author.
[67Id.
[68Id. at para. 326.
[69]  Court of Appeal, “Judgment,” August 11, 2010, available on file with the author (hereinafter Appellate Judgment).
[70]  High Court of Justice, “Approved Judgment,” July 27, 2009, [2009] EWHC 1910 (Admin), Case No: C0/1739/2009, available at http://www.alhaq.org/pdfs/Al-Haq%20v%20UK%20Judgment.pdf.
[71]  Al Haq made the same claims in its submission to the ICC.
[72]  Al Haq v. UK Secretaries of State, Decision of Justices Pill and Cranston, July 27, 2009.  Available on file with the author.
[73]  High Court of Justice, “Approved Judgment,” July 27, 2009, [2009] EWHC 1910 (Admin), Case No: C0/1739/2009, available at http://www.alhaq.org/pdfs/Al-Haq%20v%20UK%20Judgment.pdf.
[74]  PCHR partnered with CCR in two other US cases involving Israel (Matar v. Dichter and Corrie v. Caterpillar).  These cases, too, were dismissed by the Courts.
[75Belhas v. Ya’alon, “Opinion,” February 15, 2008, at 6, available at http://www.ccrjustice.org/files/Decision%20in%20Belhas%20v%20Ya’alon% 202.15.08.pdf.  
[76]  Sussman v. Bank of Israel, 801 F. Supp. 1068, 29-30 (S.D.N.Y. 1992); See also Interface Partners Int’l Ltd.  v. Hananel, No. 08-1983, (1st Cir. Aug. 05, 2009) (holding Israel is an adequate alternative forum), available at http://caselaw.findlaw.com/us-1st-circuit/1070893.html.
[77]  See e.g., Neulinger & Shruk v. Switzerland, Eur. Ct. H.R., no. 41615/07 (July 6, 2010) (Relied on Israeli family law precedent to ascertain child custody rights: "Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child);” Case of I. v. the United Kingdom, Eur. Ct. H.R., no. 25680/94 (July 11, 2002) (Court cited Israel's recognition of gender re-assignment when reaching a conclusion); Case of Evans v. the United Kingdom, Eur. Ct. H.R., no. 6339/05 (Apr 10, 2007) (Court cited as precedent the Israeli case Nachmani v. Nachmani  (50(4) P.D. 661 (Isr)); Lustig-Prean and Beckett v United Kingdom, Eur. Ct. H.R., nos. 31417/96 and 32377/96 (Dec 27, 1999) (Court relied on observations that Israel permitted homosexuals to join their armed forces and ultimately struck down the ban).
[78 See, e.g. Ya’akov Katz, “DF uses 'skunk bomb' in Bil'in demo,” Jerusalem Post, July 11, 2009 (more than one hundred soldiers and border police have been wounded during the riots – some seriously), available at http://www.jpost.com/Home/Article.aspx?id=148288;  http://www.flickr.com/photos/activestills/4277067522/in/set-72157594376343656/ (photos of demonstrators using violence). 
[79]  Image of a protestor using a slingshot, ActiveStills Flickr feed, available at http://www.flickr.com/photos/activestills/3823179892/in/set-72157594376343656/. 
[80Supra note 75 (more than one hundred soldiers and border police have been wounded during the riots – some seriously).
[81]  Image of a protestor with a PFLP flag, ActiveStills Flickr feed, available at http://www.flickr.com/photos/activestills/5332753973/in/photostream/. 
[82]  Avi Issacharoff, “Are the Palestinians silencing the attempted rape of US peace activist?, Ha’aretz, July 14, 2010, available at http://www.haaretz.com/blogs/mess-report/mess-report-are-the-palestinians-silencing-the-attempted-rape-of-u-s-peace-activist-1.301905.
[83]  Ben Hartman, “Anarchist given 3 months in jail for bike protest,” Jerusalem Post, December 27, 2010, available at http://www.jpost.com/NationalNews/Article.aspx?id=201148.
[84]  It is also important to note that both of these individuals were represented by attorneys and had the opportunity in court to confront the charges against them.
[85]  Under this reasoning, NGOs appear to be arguing that anyone adopting any political cause, for whatever reason, can justifiably attack security officials, destroy private and public property, and promote terror groups while, at the same time, be immune from prosecution.  Such justifications have been used, for instance, by anti-abortion activists to bomb and vandalize health clinics, kill doctors, and harass women seeking treatment.
[86] Rather than engage in independent research, HRW’s statement appears to simply repeat claims by B’Tselem.
[87]  Contrary to Yesh Din’s claims, a military investigation was in fact conducted after the incident.  This disproves NGO claims that the military does not investigate incidents of death or injury or that the HCJ has no power to review military decisions.  The Military Advocate General re-opened the case in July 2010 to review information presented by B’Tselem and Yesh Din.  See Anshel, Pfeffer, “Military to probe Bil'in protester's 2009 death,” Ha’aretz, July 13, 2010, available at http://www.haaretz.com/print-edition/news/military-to-probe-bil-in-protester-s-2009-death-1.301569.
[88]  Jack Khoury, Israeli Arab activist confesses to spying for Hezbollah, Haaretz, Oct. 27, 2010, available at http://www.haaretz.com/news/national/israeli-arab- activist-confesses-to-spying-for-hezbollah-1.321438.
[89]  NGO Monitor, “Amnesty International:  Defending those linked to terror,” February 3, 2011, available at http://www.ngo- monitor.org/article/amnesty_international_defending_those_linked_to_terror; NGO Monitor, April-May 2010 Digest, available at http://www.ngo-monitor.org/article.php?id=2924.  Amnesty International also fired the head of its women’s rights division after she criticized the organization for its association with alleged Taliban supporter Moazzem Begg.  In response to the widespread criticism for this incident, Amnesty’s interim Secretary General condoned “jihad in self defense.”
[90]  As it is hard to prove a negative, it is easy for NGOs to level such claims and much more difficult for the Israeli government to counter such accusations.
[91]  "Israel Must Stop Harrassment of Human Rights Defender, Amnesty International," May 11, 2010, available at http://www.amnesty.org/en/news-and-updates/israel-must-stop- harassment-human-rights-defender-2010-05-12
[92]  It is particularly strange that, as a human rights organization, Adalah would euphemistically call members of Hezbollah, a well-known terror group that has murdered thousands, “political and social activists,” or that it would label passing along classified information that could lead to the deaths of many civilians as “legitimate relations”.
[93]  HRW recently appointed Jabarin to its Middle East Advisory Board – another example of its moral failure.

[94]  As the case of Ameer Makhoul demonstrates, it is not unfounded for the Israeli government to be concerned about meetings with and recruitment for terror organizations in Europe and elsewhere.  This concern is particularly well-founded in Jabarin’s case given his previous conviction for recruiting PFLP activists outside of Israel.
[95]  Waxman, Barak-Erez, supra note 8, at 63.
[96Id. at 42.
[97Id. at 26 n. 82.
[98]  Jabarin’s organization Al Haq repeatedly calls terrorist attacks on Israeli civilians “resistance.”  Jabarin himself complained that after 9/11, “the United States succeeded in establishing linkages between legitimate resistance against occupation and terrorism.”  Al Haq’s former General Director, Randa Siniora also stated,
“Although resistance against occupation and its arbitrary practices is legitimate under international law, and these acts are considered a part of the Palestinian people‘s resistance and struggle against occupation in order to achieve their right to liberation and independence, the occupation forces call it ‘terrorism’ or ‘destructive acts.’”
Al Haq also promotes the campaign to equate Israel with apartheid South Africa.
[99]  These claims are also based on distortions or misrepresentations of international law.  See, e.g., NGO Monitor, “The NGO Front in the Gaza War,” February 2009, available at http://www.ngo- monitor.org/article/the_ngo_front_in_the_gaza_war, Anne Herzberg, “Gaza War Myths Revisited,” NGO Monitor, available at http://www.ngo-monitor.org/article/ngo_gaza_war_myths_revisited.
[100]  B’Tselem does not explain the contradiction in the publication, which in one place accuses Israel of killing fifteen members of Rayan’s family, and thirteen in another.  It is unclear as to whether the wives of Nizar Rayan were involved in allowing massive quantities of weaponry to be stored in their home
[101]  HRW frequently extols the importance of the presumption of innocence in its publications.  See e.g.”Back to the Future,” July 27, 2010, available at http://www.hrw.org/en/node/91967/section/8.

[102]  UN Watch, “New Report: UN Accusations of ‘Israeli Attack on School’ Were False,” February 2, 2009, available at http://www.unwatch.org/cms.asp?id=687172&campaign_id=63111,