The United Nations Human Rights Council concluded its year-long session last week by singling out one member state Israel for permanent indictment on the council agenda.
This discriminatory treatment is not only prejudicial to Israel; it is a breach of the UN charter’s foundational principle of the equality “of nations, large and small.” It concluded a week and year of unprecedented discriminatory conduct.
The week began with Archbishop Desmond Tutu reporting to the council on the high-level fact-finding mission to investigate “the Israeli willful killing of Palestinian civilians” in Beit Hanoun, Gaza, last November. He received a standing ovation, an extraordinary reaction by a body that frowns on applause.
I suspect the appreciation was for the man as much as anything else, because the mandate that authorized the mission was a sham. It made a mockery of the council’s own founding principles and procedures. It was a mission that should never have been.
Accordingly, when I addressed the council that same morning, I made public for the first time that I had been invited by the council president to join the mission last November, but declined to do so.
I explained to the council that one might have thought I would welcome the opportunity to serve under a UN human-rights mandate. Canada is a country that has regarded the UN as an organizing idiom of its foreign policy, a country that has made a substantial contribution to the development of UN law and the cause of human rights. My colleague and mentor at McGill Law School, John Humphrey, was founding director of the UN division on human rights and the principal draftsman of the Universal Declaration of Human Rights.
Regrettably, though, I could not accept the mandate because its terms of reference made a mockery of Kofi Annan’s vision for the new council and its founding principles of universality, equality and fairness.
First, as a law professor and international lawyer, I could not accept a mandate to hear only one side of a dispute. The terms of reference deliberately ignored the Palestinian rocket attacks on the Israeli city of Sderot that preceded Israel’s actions, and which continued even as we met.
The entrance to the McGill University Faculty of Law, where I am a professor, is engraved with the words “audi alteram partem” (hear both sides). How could one participate in a mandate that violated this bedrock principle of the rule of law that denied a member state the right to a fair hearing and fundamental due process?
Second, the mandate violated the presumption of innocence. The resolution establishing this fact-finding mission began by condemning “the Israeli willful killing of Palestinian civilians.” The 19 Palestinian dead were a tragedy. But how could one participate in a fact-finding mission where the facts and the verdict were determined in advance a kind of Alice in Wonderland inquiry where the conviction was secured and the sentence passed even before the proceeding began?
It is not surprising, therefore, that the council members who most consistently support the human-rights mechanisms of this body, including Canada, all refused to support this mandate.
Regrettably, this discriminatory and one-sided approach has become not the exception but the norm. Council sessions of the past year reflected not only the same contempt for the rule of law, but the systematic singling-out of a member state for selective and discriminatory treatment, while granting the major violators exculpatory immunity.
– There have been nine resolutions condemning one member state only (Israel) but none of any of the other 191 members of the international community, including, for example, no condemnation of the genocide in Darfur, or of the public and direct incitement to genocide and massive human-rights violations in President Mahmoud Ahmadinejad’s Iran.
– The continuing exclusion of one member state (Israel) from membership in any of the five regional groups that govern the council, thereby denying a member state the fundamental rights of due process and equitable standing.
– The council’s discourse, as exemplified in the session just ended, as an endless drumbeat of indictment and incitement against Israel, again contrary to the council’s founding principles and procedures.
Indeed, in a world where human rights have emerged as the new secular religion of our time, Israel, portrayed as a meta-rights violator, emerges as the new anti-Christ of the international arena.
And as if this were not enough, the council has now institutionalized forever the Alice in Wonderland condemnatory process and the corresponding drumbeats of indictment. It has institutionalized the condemnation of Israel as a standing item on the council agenda and institutionalized the mandate of the special investigator on “Israeli violations of the principles and bases of international law” in the Palestinian territories its only indefinite, open-ended and one-sided investigative mandate.
The tragedy in all of this is not only that it fuels the ongoing delegitimization, if not the demonization, of a member state of the United Nations, casting Israel as the collective, targeted Jew among the nations. Or that it provides succour and assistance to those, such as Mr. Ahmadinejad, who envision “a world without Israel,” as well as those who target Israel alone as the object of boycotts and sanctions.
Rather, the tragedy is that all of this takes place under the protective cover of the UN, with the presumed imprimatur of international law, and the halo banner of human rights.
It is not only one state that is under assault. The bell is tolling for the UN Human Rights Council itself. It is time to sound the alarm and return the council to its founding principles and ideals.
Prof. Irwin Cotler is a Member of Parliament and the former minister of justice and attorney-general of Canada. He is a board member of UN Watch.
This article appeared in The Globe and Mail on Jun21st 2007.