NGO Monitor Submission to the UN Biennial Report of the Secretary General

Full Article

Introduction

 NGO Monitor, a project of the Institute for NGO Research,¹ an organization in Special Consultative Status with UN ECOSOC since 2013, presents this submission for the Biennial Report of the Secretary General on “Strengthening United Nations action in the field of human rights through the promotion of international cooperation and the importance of non-selectivity, impartiality and objectivity.” We hope this contribution will assist in the preparation of the report to be presented to the General Assembly at its 76th session.

For nearly 20 years, since its founding in the wake of the 2001 UN World Conference Against Racism in Durban South Africa, NGO Monitor has studied and analyzed the issues of international law, armed conflict, transparency, and accountability measures within the human rights and humanitarian NGO community.²  A particular aspect of this work is examining the role of civil society within UN frameworks and developing solutions to improve non-selectivity, impartiality, and objectivity in this relationship.

General Assembly Resolution 75/151, passed on 18 December 2019, stresses that the promotion and protection of human rights must be “guided by the principles of non-selectivity, impartiality and objectivity,” and importantly must “not be used for political ends” (para. 6).³ The resolution also emphasizes that there must be an “unbiased and fair approach to human rights” (para 8) and that there is a “continuing need for impartial and objective information on the political, economic and social situations and events of all countries” (para 9). These principles are applicable across all UN bodies and including independent experts and Special Rapporteurs (para 7).

Unfortunately, however, many UN frameworks and mechanisms are not upholding these principles. In fact, the human rights infrastructure is amongst the areas where selectivity, partiality, and non-objectivity are the most pronounced in the UN system. These problems are further entrenched due to the lack of transparency surrounding budgets, appointments, and oversight.

This submission highlights a few areas where significant reforms are required to ensure that the UN human rights bodies are non-selective, impartial, and objective, and carry out their work with an unbiased and fair approach.

Division of Palestinian Rights

Operating under the UN Department of Political Affairs, the Division of Palestinian Rights (DPR), which serves as the Secretariat for the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP) and operates the UNISPAL website, is the only UN division devoted to a single people.⁴ Rather than promote human rights and UN principles, the DPR operates in a selective, partial, and non-objective manner.  Its work is akin to a UN-sponsored propaganda agency aimed at demonizing and delegitimizing the State of Israel.⁵

Created in parallel to the passage of the infamous and discriminatory 1975 “Zionism is Racism” resolution (repealed in 1991), the DPR promotes a highly distorted history of the Arab-Israeli conflict through numerous public conferences and “civil society” seminars. According to a report by the Anti-Defamation League (ADL), CEIRPP is “the single most prolific source of material bearing the official imprimatur of the UN which maligns and debases the Jewish State.”⁶ Together, these frameworks continue to promote the singularly antisemitic agenda behind the 1975 resolution, thirty years after it was annulled.

The biased and inflammatory activities carried out by the DPR and associated mechanisms are continued with impunity due to the lack of transparency surrounding its staffing, operations, funding, and budget.

UN Human Rights Council

The failure to uphold the principles of non-selectivity, impartiality, and objectivity within UN human rights frameworks is most acute within the Human Rights Council (HRC).

The Council was created in 2006 after decades of serious failings on the part of its predecessor entity, the Commission on Human Rights. In 2005, former UN Secretary General Kofi Annan remarked that “the Commission’s ability to perform its tasks has been . . . undermined by the politicization of its sessions and the selectivity of its work” (Remarks by Kofi Annan in creating the Human Rights Council, 7 Apr 2005).⁷

In order to ostensibly remedy the problems of politicization and selectivity plaguing the Commission, the General Assembly passed Resolution 60/251 on 3 April 2006, establishing the new Human Rights Council. The resolution mandated its work be guided by the principles of universality, impartiality, objectivity and non-selectivity, and constructive international dialogue and cooperation. The HRC’s institution-building package expanded on the principles, adding “transparency, accountability, [and] balance” to the values guiding its work.⁸

Yet, the Council has not acted in accordance with these principles. As French academic Antonia Dürnsteiner has noted, “[a]s far as the principle of non-selectivity is concerned… the Human Rights Council’s selectivity… is greater than it was in the Commission.”⁹

Agenda Item 7

No aspect of the Human Rights Council more exemplifies the lack of non-selectivity than Agenda Item 7, devoted to condemning Israel alone for alleged human rights violations.¹⁰

Item 7 is the only debate item dedicated to a single country – Israel – at every Council session. Under the auspices of this agenda item, more condemnatory resolutions and reports are brought each year targeting Israel than for any other situation or country. Since the Council’s founding in 2006, there have been more than 90 resolutions targeting Israel. The next highest number is 35 for Syria.¹¹

In recent years, as a result of this manifest bias, many Western countries have chosen not to participate in the Item 7 debate and resolutions brought under it, until the UN acts decisively to end this selectivity.¹² Yet, rather than eliminate Item 7 and conform to the body’s governing standards, HRC officials, collaborating with the PA and repressive member states, have acted precisely in the opposite manner. Not only has Item 7 remained, but they have allowed the scheduling of additional anti-Israel debates under Items 2 and 5, among others.

The Item 7 debates also serve as a platform for member states, Special Rapporteurs, and NGOs, to engage in antisemitic abuse, as defined by the International Holocaust Remembrance Association (IHRA) working definitions of antisemitism and Holocaust denial and distortion. This abuse is rarely, if ever, called out by HRC officials.

Special Rapporteur for the Palestinians

Resolution 75/151 emphasizes that the principles of non-selectivity, impartiality, and objectivity apply for all bodies in the UN system, including “special rapporteurs and representatives, independent experts and working groups” when carrying out their mandates (para. 7).

The Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, however, is another UN human rights mechanism that is marred by extreme bias, selectivity, and partiality.

For example, in contrast to every other special procedures country mandate that must be renewed by vote on an annual basis, the Rapporteur is the only indefinite mandate, as noted on OHCHR’s webpage, enduring “until the end of the Israeli occupation.”¹³

In addition, it is the only mandate that is manifestly selective and partial, aimed at examining alleged violations by Israel alone. Palestinian violations and systematic atrocities committed by the PA and other Palestinian terror groups are expressly excluded. While one Rapporteur (Wibisono, 2014-16) exercised relatively greater independent judgment and attempted to provide a somewhat more balanced approach beyond the mandate, the other holders have maintained the extreme selectivity and bias.¹⁴

Third, the Special Rapporteur position, with one exception (again Wibisono), has been filled by demagogues with extensive histories of anti-Israel animus and who have used their platform to promote extreme hostility towards Israel, boycott campaigns, and antisemitism.¹⁵

As noted by legal scholar and former member of the Inter-American Commission on Human Rights, Christina Cerna, who applied for the Special Rapporteur position, but was rejected due to a lack of an overtly hostile record towards Israel:

In my view Israel has a unique status in the UN Human Rights Council. Impartiality is not a requirement sought by the Council for the appointment of experts when it comes to Israel. I was selected as the consensus candidate of the Consultative Committee for the post of UN Special Rapporteur on the Occupied Palestinian Territories earlier this year, but the Organization of Islamic Cooperation and the League of Arab States both officially opposed me, which killed my candidacy. They opposed me for “lack of expertise,” although my entire professional life has been involved with human rights, but because I had never said anything pro-Palestinian and consequently was not known to be “partial” enough to win their support. The candidate that they officially supported was considered to be partial in their favor. No other special procedures mandate is similarly biased. At the end of the day, neither I nor the OIC candidate was appointed, but the Indonesian diplomat, Makarim Wibisono, who was appointed, was considered sufficiently “pro-Palestinian” to be acceptable to the OIC.¹⁶

The Rapporteur also employs a selective and discriminatory approach to civil society. The Rapporteur engages almost exclusively with NGOs that share his anti-Israel prejudices and narrow political agenda. These NGOs get special notifications of reporting and other initiatives in order that their publications are extensively cited in Rapporteur reports. NGOs that might present a more pluralistic approach or information that does not conform to the Rapporteur’s selective mandate and biased methodology are excluded from his work.

In addition, the Rapporteur participates in and lends his and the UN’s endorsement to events with fringe groups and individuals active in BDS and other forms of anti-Israel advocacy. The Rapporteur has also elevated and promoted individuals responsible for antisemitic and violent incitement. Even after this information was brought to the Rapporteur’s attention, this prejudicial material remains online on the OHCHR website.¹⁷

HRC Commissions of Inquiry

HRC Commissions of Inquiry related to Israel are another mechanism where selectivity, partiality, and non-objectivity predominate. Israel has been the subject of more HRC Special Sessions (8) and resulting Commissions of Inquiry (7) than any other country.¹⁸

The violation of the principles of non-selectivity, impartiality, and objectivity begins with the selection of Commission members. Unlike the appointment process for other HRC positions, extreme secrecy surrounds the appointment of commission members and staffers. It is unclear who provides input to the HRC President in the selection process and how individuals are chosen.

The HRC has a dismal track record when it comes to appointing members for COIs on Israel. In fact, it appears that an extensive history of prejudicial remarks and anti-Israel hostility is a requirement for at least one member of every team.

Commenting on the selection of William Schabas to the 2014 Gaza COI, international legal scholar Professor Joseph Weiler remarked:

The impartiality of Professor Schabas has been called into question in the light of an answer he gave to the Netanyahu comment. He explained, if press reports are to be trusted, that it was a comment made in view of the findings of the Goldstone Report. It has been pointed out that Netanyahu was in the Opposition during the Cast Lead operation and would have had ipso facto and ipso jure no responsibility for any findings in the Goldstone Report –a fact which could point to unacceptable animus by Schabas. There is another Youtube video in which Professor Schabas addresses Netanyahu in derogatory terms, again cited as indicating animus. I express no position on this. But it is hard for me to accept that his pronouncement on Netanyahu as being his favourite to be in the dock of the ICC –regardless of the context of the comment –is consistent with ensuring ‘the appearance of impartiality’. That very question –whether there is evidence to indict Netanyahu for violation of international criminal law, might, directly or indirectly, be before the Commission. In my view, this is a self-evident case where an appearance of impartiality might be created. For the Commissioner, the UN Council, the Commission of Inquiry and William Schabas himself to dig in is, in my view, unwise and counterproductive. When the appearance of justice is compromised, so is justice itself.¹⁹

Mordechai Kremintzer, Israeli scholar and a member of the Public Council of Israeli NGO B’Tselem, and noted critic of the government, admonished:

The best way to give meaning and force to the norms set by the laws of war is for political leaders and senior military commanders the world over to internalize them. To achieve this, it is essential that any proceedings that could lead to the assignment of criminal liability should be fair and just, and also appear as such. It seems that the committee headed by Prof. William Schabas does not meet this standard . . .The damage to the inquiry is redoubled when its chair has already declared his desire to see the prime minister of Israel in the dock . . .that is, the committee’s chair has already formed a negative judgment about the head of the political system that oversees the military whose conduct is to be investigated. He cannot be perceived as an unbiased investigator…The partiality of the inquiry will inevitably lead to biased findings devoid of real value. The conclusions based on these findings, too, will necessarily be worthless, as happened with the Goldstone Commission. Such a report will only undermine the credibility of international criminal law.²⁰

Even Aryeh Neier, former head of the ACLU, Human Rights Watch, and George Soros’ Open Society Institute, told a group at Paris’ SciencesPo that “any judge who had previously called for the indictment of the defendant would recuse himself.”²¹

Other issues endemic to COI’s on Israel result from selectivity and partiality: the establishment of one-sided mandates, focusing exclusively on Israel; asserting pre-established conclusions that Israel has violated international human rights and humanitarian law; applying invented legal standards, not used by the UN in any other conflict; the failure to appoint qualified experts on military and IHL issues even though these are the primary topics at issue; and a lack of transparency as to working methods of the COI.

Weiler again comments:

It serves neither the interests of justice nor the credibility of the bodies charged in administering such to reach these categorical conclusions before the body set up, in the same breath, to investigate purported violations has investigated and reported. Careful factual and legal analyses are needed before any definitive conclusions may be reached. One might think that the appointing body, already sticking the arrow and drawing the target around it, may put undue pressure on the independent investigating body to reach certain conclusions. Even if these were the views of Members of the Council, they should have been withheld when the Council, a political body, exercised its investigative and judicial authority. The dissonance jars and is compromising. The same is true for the failure of the Council explicitly to make Hamas, the effective government of Gaza, alongside Israel an object for investigating purported violations of IHL and HR.

Similarly, the following experts have all criticized the working methods of HRC COIs:²²

• Former Chair of the University of Essex Human Rights Centre Nigel Rodley has commented, “[r]egrettably, the United Nations has not provided comprehensive criteria for the guidance of fact-finding missions to be carried out under its auspices.”²³
• Rodley’s colleague and IHL expert, University of Essex Professor Francoise Hampson, has noted that the key problems with the Goldstone COI were the “biased HRC mandate,” “the nature and confused conclusions reached,” and Goldstone’s faulty assumption that violations of IHL can be based solely upon result.
• Hebrew University Professor Yuval Shany, who is often critical of the Israeli military, has remarked that the Goldstone report “sets a standard that no one applies and no one can meet.”
• Professor Laurie Blank, Director of Emory University Law International Humanitarian Law Clinic, found that “the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies.”
• Judge Fausto Pocar, former President of the International Criminal Tribunal for the Former Yugoslavia, criticized the Goldstone report for its one-sided and discriminatory call for universal jurisdiction solely against Israel.
• British think tank Chatham House also issued a report regarding irregularities in the Goldstone process and concluded that, among other aspects, “the Mission had given insufficient acknowledgement of the difficulty in obtaining information in a political environment dominated by Hamas,” that there was a perception of bias regarding mission members, that “the criteria employed [for selection of incidents to be investigated] should have been indicated,” and that criticisms of Hamas were “tentative.”

Many of these fundamental failures can be attributed to extensive reliance on partial and non-objective NGOs, many of which promote BDS, advocate for the elimination of Israel, and/or have close links to Palestinian terror groups.

There is also a lack of transparency regarding the relationship between COI members and NGOs. Few, if any, criteria are disclosed regarding the selection of NGO participation. Often, no public record exists of NGO interaction, creating the perception of improprieties or conflicts of interest. NGO submissions constitute the vast majority of the source material for the COIs’ final reports, and large portions of these reports are simply “cut and pasted” from NGO submissions without any verification of NGO claims.

Treaty Bodies

Another area where anti-Israel selectivity is apparent is within the activities of certain Treaty Bodies. The most notable offender is the Committee on the Elimination of Racial Discrimination.

For example, in May 2018, CERD chose to release a highly inflammatory and unusual statement on Israel’s response to a planned Palestinian military incursion on the Gaza border – an issue far beyond the scope of the Committee’s mandate and competence. The statement repeated Hamas propaganda and ignored dozens of actual antisemetic and violent threats made by Palestinian officials, while at the same time falsely accused Israel of racial bias.²⁴ In December 2019, CERD ignored an opinion of the UN Office of Legal Counsel and improperly asserted jurisdiction to proceed against Israel in a politicized complaint brought by the Palestinian Authority.²⁵

We are also concerned regarding UN endorsement of the Palestinian Authority’s campaign to exploit UN Treaty Bodies for anti-Israel political warfare, which is listed as the number one strategic objective of the Palestinian Authority’s United Nations Development Assistance Framework (UNDAF), devised in cooperation with UN agencies and officials.²⁶ Strategic Objective 1.1 of the 2018-22 UNDAF allocates more than $18 million to “Human rights mechanisms are increasingly engaged to hold Israel accountable for its obligations under international law”, specifically, for “Palestinian civil society representatives [to submit] written information to the human rights treaty bodies.” (p. 39) The UN tasks UNRWA, OHCHR, UNICEF, UNDP, and UN Women to work alongside Palestinian NGOs to produce 33 submissions.²⁷ We are unaware of any other situation globally where the UN is actively working with a regime to file dozens of treaty body submissions against a country with which it is engaged in active conflict.

Interactions with civil society also hamper the ability of treaty bodies to uphold the foundational principles of non-selectivity, impartiality, and objectivity. Participation by NGOs in the work of the treaty bodies is a critical part of the system. Yet, this participation is marred by incoherence, lack of transparency, arbitrary rules, and obstacles to participation.

First: incoherence. The rules relating to civil society participation differ greatly across the various bodies. These differences include varying deadlines for submission of shadow reports – some require inputs months in advance, while others only require a few weeks’ notice. Some bodies have pre-session meetings and NGO sessions, while others allow for lunchtime briefings and private meetings.

Second: lack of transparency. Some treaty bodies outsource civil society participation to NGOs that collect statements and arrange meetings with the Committees. There is no transparency as to how these outside groups carry out their work and whether or not it is done so in a non-discriminatory manner. There is also a lack of clear guidelines as to how to obtain recourse should these outside NGOs behave improperly.

Third: arbitrary rules and treatment. In our experience, particularly with CERD, the rules for NGOs appear to be made up on the spot.  For example, at one meeting, some NGOs were given only three minutes to speak, while others were given seven. Arbitrary rules also relate to the publishing of written submissions. We are aware of submissions that were critical of the Palestinian Authority were not posted, and the NGO authors were never alerted of a problem. Even after asking the Secretariat for clarification and how to fix any issues, these requests were ignored.

Fourth: accessibility. The current system favors NGOs that are well-funded and have a presence in Geneva. NGOs that cannot afford to have an office in Geneva nor afford to travel are blocked from interacting with most committees.  This issue is even more acute because of the Covid-19 pandemic, where many NGO representatives cannot appear in Geneva due to travel and quarantine restrictions.

OHCHR Reporting

Resolution 75/151 notes that there is a “continuing need for impartial and objective information on the political, economic and social situations and events of all countries” (para 9).  Yet, the current OHCHR reporting process does not facilitate these goals.

There are more resolutions, mandates, and resulting reports produced on Israel by UN bodies than any other country. Almost all of these reports are drafted by the Middle East desk of OHCHR. Because this small office lacks the resources and capability to independently source, gather, and corroborate data, these reports largely comprise a cobbling together of unverified claims provided by an ideologically narrow group of politicized NGOs.  No mechanism is in place to review or confirm these NGO claims, which become incorporated into official UN reports and get further disseminated bearing the endorsement of the UN.  Very often, data clearly refuting the allegations made in reports are ignored by the officials drafting these reports, even though this information is publicly available and easily obtained via simple internet searches. In addition, on multiple occasions we have shown documentation to OHCHR officials demonstrating blatantly false information in reports on Israel, with no effort made to correct the record.

Additional Prejudicial NGO Engagement

 This submission has highlighted several ways in which NGO participation in UN human rights frameworks has led to an erosion of the standards of non-selectivity, impartiality, and objectivity. Other areas bear mentioning.

The September 2019 Report of the Secretary General on Strengthening United Nations action in the field of human rights through the promotion of international cooperation and the importance of non-selectivity, impartiality and objectivity (A/74/351), mentions that OHCHR “continued to advocate for the inclusion of civil society in all United Nations processes” and “spelled out key measures needed for effective engagement, namely, access to information, transparency with regard to participation rules, diversity among the international and regional organizations with which the United Nations engages and safety and security for civil society actors” (para. 41).

Yet, there are still severe transparency and information deficits relating to OHCHR and NGO engagement. For instance, selected NGOs are afforded a privileged status within the UN. Favored NGOs receive free PR and links to their websites and events on UN webpages; endorsement and participation in events by UN officials; special solicitation for inputs; attendance at high level UN retreats; and meetings on demand with senior officials. No standards appear to regulate such preferential treatment. It is important to note that many senior OHCHR staffers were also previously senior officials at these same privileged NGOs, highlighting the conflicts of interest and potential for abuse.

The discriminatory treatment not only occurs in Geneva but at the OHCHR branches in the Palestinian Authority. For example, OHCHR (and other UN agencies including OCHA-oPt and UNICEF Palestine) closely partner with selected NGOs, not only for grants and projects but as integral members of OCHA’s cluster teams. How these NGOs are chosen and what standards govern these appointments is unknown.  Many of the NGOs that OCHA-oPt and other UN agencies work most closely repeatedly promote the demonization and delegitimization of Israel as the nation state of the Jewish people, issue antisemitic statements and imagery, and have close ties to Palestinian terror groups.²⁸ Unverified claims made by these groups predominantly feature in reports prepared by OHCHR and other UN agencies.

Moreover, local OHCHR officials have refused to meet with NGOs that do not share the political prejudices of the select anti-Israel NGOs. In a notable example, OHCHR officials based in the Palestinian Authority repeatedly refused to meet with the leading Israeli expert on Israeli’s military justice system as it relates to children.²⁹ This expert not only was previously the Chief Prosecutor of Israel’s military courts, but had been the government point-person for negotiations with UNICEF, and was responsible for creating Israel’s data collection system relating to juvenile offenders in the military system. The sole reason for the refusal was an unwillingness by the UN staffers to hear a perspective or receive data that did not conform to their anti-Israel priors.  As a result, OHCHR reports pertaining the juvenile justice system continue to be replete with demonstrably false and outdated information.

In contrast to the staffers at the OHCHR office in the Palestinian Authority, we do want to emphasize that for the most part, officials and staffers in the Mideast Division based at OHCHR Geneva have been much more responsive and willing to engage in dialogue with our organization, and we welcome this continued cooperation. Nevertheless, significant problems remain in the reporting methodology and we remain ready to assist in developing workable standards.

The 2019 Secretary General’s report also notes that “OHCHR and the United Nations independent human rights mechanisms address acts of intimidation and reprisals against those who cooperate with the Organization on human rights.” Yet, due to our exposing of UN partnerships with antisemitic and terror-tied NGOs, our organization has been the target of retaliation by UN officials. We have been defamed in several OHCHR reports and by UN officials and independent experts in their statements and reports.

In addition, several of our submissions to both the HRC and the Treaty bodies, and those of other organizations critical of the UN’s selective approach to Israel, have been censored. We are also aware of a UN agency based in the Palestinian Authority hiring an outside consultant to investigate our organization and who arranged an interview with officials of our NGO under false pretenses. In addition, we have been made aware of several incidents where UN officials approached members of the Government of Israel asking it to silence our research and criticism of the UN.

Currently, no mechanism for reporting attacks by UN officials and obtaining redress exists.

Conclusion

The UN’s ongoing failure to remedy extreme selectivity, partiality, and non-objectivity with regards to its activities relating to Israel is a moral stain on the organization and greatly damages the institution’s credibility and effectiveness.

Many of the problems discussed in this submission could easily be remedied by an exercise of UN leadership, most notably the High Commissioner for Human Rights, in speaking out against this discriminatory treatment.

Instead, UN officials continue to tolerate such prejudice and justify it by placing blame on UN member states. While member states may ultimately have the power to institute some of the changes, many of the issues highlighted in this submission are solely within the control of the High Commissioner and other officials. Moreover, strong moral leadership and loudly advocating for reform would have significant influence on the conduct of member states and observer entities.

To that end, we make the following recommendations:

• Eliminate selective mechanisms singling out Israel including the UN Human Rights Council Agenda Item 7.
• The UN must adopt across all frameworks the International Holocaust Remembrance Association working definitions on antisemitism and Holocaust denial and distortion.³⁰ As noted by Special Rapporteur for freedom of religion and belief, Ahmed Shaheed, characterized the definitions as “valuable guidance.”³¹
• The UN must adopt internationally recognized standards for fact-finding and verifying NGO reporting, such as the International Bar Association’s Lund-London guidelines.³²
• All appointments, including for Commissions of Inquiry and Fact-finding Missions, must be made in a transparent manner.
• Adopt a UN-wide freedom of information mechanism.
• Create an independent ethics committee to provide oversight of UN activities and that they maintain the principles of non-selectivity, impartiality, and objectivity.
• Implement an independent complaints procedure to protect victims of attacks by UN officials.

We welcome the opportunity and remain available to discuss these issues in greater detail.

Respectfully submitted,

Anne Herzberg

Legal Advisor, NGO Monitor

UN Representative, Institute for NGO Research