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UNITED
NATIONS
A

        General Assembly
Distr.
GENERAL
A/62/567
6 December 2007

Original: English

Sixty-second session
Agenda item 70 (c)
Promotion and protection of human rights: human
rights situations and reports of special rapporteurs
and representatives



Letter dated 4 December 2007 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General

Upon instructions from my Government, I have the honour to convey herein Israel’s response (see annex) to the report dated 17 August 2007, submitted by Mr. John Dugard, Special Rapporteur to the Human Rights Council (A/62/275).

I should be grateful if you would circulate the present letter and its annex as a document of the General Assembly, under agenda item 70 (c).

(Signed) Dan Gillerman
Ambassador
Permanent Representative
Annex to the letter dated 4 December 2007 from the Permanent Representative
of Israel to the United Nations addressed to the Secretary-General

Response of Israel to the report dated 17 August 2007 submitted by
Mr. John Dugard, Special Rapporteur to the Human Rights Council (A/62/275)

General

The latest report of the Special Rapporteur follows its predecessors in letter and tone in the approach it takes to the region. Its findings, like those of the reports that came before it, are predetermined and, indeed, large portions of the text have been borrowed from its predecessors. Moreover, the current report was prepared without the Special Rapporteur visiting our region and, thus, many of his conclusions are based on hearsay and unsubstantiated second-hand reports.

Regrettably, the report insists on viewing a complex situation through the simplest of prisms, one in which one side has only rights and the other has only obligations; one in which one side has a monopoly over victimhood, while the other is demonized and censured. Indeed, while the Special Rapporteur calls upon the Quartet to adopt a "fair and even-handed approach to the respective positions of Israel and the Palestinians", the approach adopted by the Special Rapporteur in crafting this report is anything but "fair" or "even-handed". In the narrow perspective of the Rapporteur, the terrorism and violence emerging from Palestinian areas simply do not exist, or at most are of little consequence, and as a result, any measure undertaken by Israel to protect its civilians can only be illegitimate or disproportionate.

In order to advance this one-sided perspective, the report presents a collage of misrepresentations and misstatements of both fact and law. Many of these are restatements of allegations made in prior reports – yet even when these have been demonstrably shown to be false, either in Israel's responses to previous reports, or by retractions made by those cited as authorities, they continue to be asserted without reservation. For example, the Rapporteur cites at length a report published in 2006 by Peace Now regarding land ownership in the West Bank, but fails to note that the organization issued a corrected report due to the fact that the original report, upon which the Special Rapporteur's findings are based, w In order to advance this one-sided perspective, the report presents a collage of misrepresentations and misstatements of both fact and law. Many of these are restatements of allegations made in prior reports – yet even when these have been demonstrably shown to be false, either in Israel's responses to previous reports, or by retractions made by those cited as authorities, they continue to be asserted without reservation. For example, the Rapporteur cites at length a report published in 2006 by Peace Now regarding land ownership in the West Bank, but fails to note that the organization issued a corrected report due to the fact that the original report, upon which the Special Rapporteur's findings are based, was rife with factual errors.

Beyond the factual and legal errors in the report, this latest report brings into clear focus the political and ideological agenda of the current Rapporteur, which, troublingly, places him at odds with established norms of human rights and international humanitarian law and, in effect, legitimizes some of the gravest violations of international law. It is a cause for serious concern that that a UN-appointed official with responsibilities in the sphere of human rights publicly advocates positions that so fundamentally diverge from universally-accepted humanitarian principles and which, in effect, condone some of the most serious abuses of human rights.

Legitimization of terrorism

In his prior reports, the current Rapporteur had demonstrated a reluctance to condemn terrorism, suggesting that there is currently no legal basis for censuring suicide terrorism (which at most violates an “emerging norm of international law”), and hinting at a sneaking admiration for those firing kassam missiles on civilians as “demonstrating daring and prowess”. However, the current report, the Rapporteur breaks new ground in legitimizing acts of terrorism against civilians.

In clear opposition to the repeated UN resolutions that declare that terrorism is unjustifiable no matter what the cause it purports to advance, the Rapporteur advances the position that terrorism is a "relative concept", particularly in the context of occupation. It is difficult to square such a relativistic approach with a condemnation of terrorism in all circumstances. As the Rapporteur himself wrote in 1977: "If the most brutal acts of terrorism directed at innocent civilian targets are permitted when committed by members of a "liberation movement", human rights will suffer a severe setback at the hand of international law"1 And yet, in his current incarnation, the Rapporteur consistently demonstrates a deliberate blindness to the perpetration and glorification of acts of terrorism by groups on the Palestinian side.

The report goes on to compare Palestinian terrorists with resistance fighters throughout history, warning that "today such resistance fighters are seen as heroes and patriots. This is the inevitable consequence of resistance of occupation." It is unclear what is "heroic" about the Hamas terrorist organization and the dictates of its official charter, which, in no uncertain terms, calls for the complete annihilation of the State of Israel. The Special Rapporteur, rather than condemn such violent ambitions, adopts an approach which legitimizes organizations like Hamas while blaming the victim of Hamas' reign of terror – the State of Israel. Moreover, the Rapporteur refuses to recognize any distinction between Hamas and its likes and moderate Palestinians opposed to the use of terrorism and committed to a peaceful resolution of our conflict.

In his disregard for the question of the legitimacy of an avowed terrorist organization, the Rapporteur places himself in staunch opposition to the international community and, in particular, the Quartet comprising the UN, the EU, the United States and Russia, which have established clear conditions for granting legitimacy to any Palestinian leadership. In the eyes of the Rapporteur, however, by holding fast to such standards, the international community is pursuing, "…a divisive policy of preferring one faction over the other". Such assessments not only far exceed his mandate, but also undermine any claims that the report is objective in its findings.

In a similar vein, the Rapporteur determines that the prisoners held by Israel are "political prisoners" suggesting that these are individuals being detained for their political or ideological views, and not their active involvement in acts of violence and terrorism. Indeed, if these individuals are merely political prisoners, one is left to wonder at whose hand thousands of Israeli civilians have been murdered and wounded in the years of Palestinian terror.

In this context, it is interesting to note that, "… from a doctrinal point of view, the international terrorist does not fall within the category of political offender. When a person commits an act which threatens the stability of other states or undermines the international order, he ceases to be a political offender and becomes a criminal under international law, like the pirate or hijacker"2 [Emphasis added]. This clear statement of international law is taken from an article authored by the Rapporteur himself in 1973.

Proportionality

As he has done in several past reports, the Special Rapporteur labels Israeli actions in self-defense as disproportionate, but as he has done in the past, offers no indication as to what types of actions would be a "proportionate" response to acts the Special Rapporteur himself describes as "war crimes", such as the daily, indiscriminate firing of rockets on communities within Israel, as well as attacks on Israeli forces patrolling the Israeli side of the Perimeter fence. It should be noted that many of these violent terrorist attacks are perpetrated by Palestinians from within civilian population centers, including schools. The Rapporteur also does not indicate what the "proportionate" response would be to the ongoing and intensive military buildup currently being undertaken by the Hamas faction ruling Gaza with a view to future confrontations and the ultimate destruction of the State of Israel. Every state has the right under international law to self-defense; Israel cannot stand idly by as its kindergartens and shopping centers are bombarded.

Taxes and Banking Regulations

The Special Rapporteur condemns both Israel's policy of withholding taxes as well as the United States imposition of banking restrictions as part of its fight against terrorism. It should be noted that such policies conform with and implement the dictates of a number of U.N. Security Council resolutions that address the issue of the funding of global terrorist networks. However, despite the numerous calls made by the U.N. to curb the financing of terrorism, the Rapporteur chooses to ignore the danger of transferring funds directly into the hands of terrorists and the need for accountability in this age of global terrorism.

Omissions, Misrepresentations, and Distortion of Facts

As noted above, the Special Rapporteur's report is rife with erroneous and misleading information. The Special Rapporteur has eschewed a meaningful and earnest investigation as to the facts, which are readily available and at his disposal. Below is a mere sampling of erroneous and misleading "facts" and figures presented in the report:



Conclusion

Previous reports of the Special Rapporteur have suggested that he has little interest in contributing either to an improvement of human rights protection in our region or to a resolution of our conflict. Neither of these goals can be achieved without some appreciation of the complexity of the situation, and of the balance of rights and responsibilities, which is so lacking in both the current and past reports.

Israel has emphasized for over a decade that there can be no value in a report created pursuant to a one-sided and inherently imbalanced mandate that ignores principles of equality and impartiality. A mandate that prejudges key issues stands in marked contrast to the current wave of reforms in the United Nations and, in particular, to those supposedly being undertaken in the Human Rights Council. Israel and other states have long noted the fundamental imbalance in the mandate of the Special Rapporteur, which calls upon him to examine alleged human rights violations by Israel only, and, thus, invites him to ignore those committed on the Palestinian side.

Despite the fact that the Special Rapporteur in his August 2005 report noted that he felt compelled to address Palestinian violations as well, his current report stands largely silent on this subject. It should be noted that a recent report by the Palestine Center for Human Rights4, courageously highlights the grave human rights and international humanitarian law breaches of Palestinians against each other, and the escalating state of lawlessness in the territories controlled by the Hamas-led government. It documents detailed incidents of extra-judicial and willful killings; abductions; torture and executions (including those of injured persons at the end of combat); attacks on hospitals, medical and civil defense crews; attacks on residential buildings; the looting of property; and attacks against the media. In contrast, the Special Rapporteur has chosen to maintain a deafening silence regarding these gross abuses of human rights.

The current report, however, reflects an approach which is potentially even more damaging. The narrow and politically motivated prism it adopts not only fails to make any contribution to positive movements in our region, but it seeks to undermine core humanitarian principles. Such a report, which undermines the concept of self defense and which ignores universally accepted standards prohibiting the use of violence against civilians can only be regarded as a major step backwards in the protection human rights, not just in our region, but throughout the world.


Notes

1 John Dugard, "International Terrorism and the Just War", (vol.12), Stanford Journal of International Studies, (1977), p. 21 at p. 32.
2 John Dugard, "Towards a Definition of International Terrorism", American Society of International Law, Volume 67 (1973), p. 94, at p. 98.
3 The above figures are correct as of 29 October 2007, as reported by the Israeli Ministry of Defense.
4 "Black Pages in the Absence of Justice” on the bloody fighting in the Gaza Strip in June 2007.


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