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Later this month the United Nations’s Council on Human Rights will consider a report issued by the Special Rapporteur for Palestine, John Dugard. The report condones acts of terrorism against Israel, in clear contravention of resolutions by the Security Council, the General Assembly, and a report by then U.N. Secretary-General, Kofi Annan, that acts of terrorism are criminal wherever and by whoever commits them, regardless of motivation.
The report issued by the Special Rapporteur states:
- A distinction must be drawn between acts of mindless terror, such as acts committed by Al Qaeda and acts committed in the course of a war of national liberation against colonialism, apartheid or military occupation.
- Such acts cannot be justified … they must be understood as being a painful but inevitable consequence of colonialism, apartheid or occupation.
- Acts of terror against military occupation must be seen in historical context. This is why every effort should be made to bring the occupation to a speedy end. Until this is done peace cannot be expected, and violence will continue …
- Israel must address the occupation and the violation of human rights and international humanitarian law it engenders, and not invoke the justification of terrorism as a distraction, as a pretext for failure to confront the root cause of Palestinian violence — the occupation.
The rest of the report, strongly critical of various actions taken by Israel, makes no reference to the fact that these actions were taken in response to terrorist attacks against Israel and, in Israel’s view, were necessary to protect its citizens from future attacks.
For a number of years the U.N.’s position on terrorism was ambiguous. Resolutions of the General Assembly condemning acts of terrorism included a paragraph reaffirming the rights of peoples fighting for self determination, arguably suggesting — though never explicitly stating — that terrorism in support of self determination was not prohibited.
But, for almost two decades now, the U.N.’s condemnation of terrorism has been unequivocal. The General Assembly, the Security Council, as well as Mr. Annan, have all condemned terrorism regardless of its motivation.
The General Assembly adopted a series of resolutions between 1985 and 1993 that condemned terrorist acts "wherever and by whomever" committed. Though the earlier resolutions included a paragraph reaffirming the right to self-determination, the 1993 resolution, titled Human Rights and Terrorism, and those adopted thereafter, did not.
In 1994, the General Assembly adopted the Declaration on Measures to Eliminate International Terrorism. This declaration says, "the States members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed."
The declaration further says that such acts are "in any circumstances unjustifiable, whatever the considerations of political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them."
The Security Council also has adopted a number of resolutions condemning terrorism in general, in addition to its condemnation of specific instances of terrorism. Security Council Resolution 1269, adopted in 1999, "unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable."
Security Council Resolution 1373, adopted on September 28, 2001, following the attacks on the World Trade Center and the Pentagon reaffirms that "any act of international terrorism [constitutes] a threat to international peace and security" and requires all states to "ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and [to] ensure that … such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts."
In 2004, Mr. Annan wrote "there is nothing in the facts of occupation that justifies the targeting and killing of civilians." In Mr. Annan’s 2006 report to the General Assembly, "Uniting Against Terrorism: recommendations for a counter-terrorism strategy," he wrote, "The United Nations should project a clear, principled and immutable message that terrorism is unacceptable. Terrorists must never be allowed to create a pretext for their actions."
In view of this clear and emphatic condemnation of all acts of terrorism the Special Rapporteur’s acceptance of Arab terrorism against innocent civilians of Israel as an "inevitable consequence of occupation," his characterization of Israel’s attempt to stop such attacks as a " distraction," and a " pretext," and his warning that until the "occupation" is brought to an end "violence will continue," are shocking.
The report should be rejected by the Council on Human Rights. Unfortunately, given the composition and history of that body, that is not likely. But, Mr. Ban, outgoing U.N. High Commissioner for Human Rights Louise Arbour, and all those who understand that the attacks on Israel are not just a "distraction" and a "pretext" should speak out against the report.
Ms. Halberstam, a professor of Law at the Benjamin N. Cardozo School of Law, formerly served as Counselor on International Law in the U.S. Department of State, Office of the Legal Advisor.