The International Legal Revolution: Implications for Israel

Tags: Diplomacy, Advocacy, Diaspora, Terror, Law, Human Rights, Legal Rights, United Nations

By Prof. Irwin Cotler

Professor Irwin Cotler's speech from the Herzylia Conference, 2015:

Today, I am going to speak about human rights and the new anti-Jewishness, in the sense of "the new anti-Jewishness originating in and impacting upon the international environment that is prevalent today.

I am speaking particularly of the international human rights revolution and the emergence of Israel in the international arena as the Jew among the nations, and to try to appreciate the kind of analysis and advocacy that is needed with respect to this new dynamics.

Simply put, we are witnessing today a new escalating virulent global and even lethal anti-Jewishness, reminiscent of the atmospherics of the 30s and without parallel of precedent since the 2nd WW, overlapping with traditional anti-Semitism, but distinguishable from it, grounded in the "Zionism as Racism" resolution, but going beyond it.

An new anti-Jewishness for which we need a new vocabulary to define it, but which can perhaps best be defined in one sentence as a discrimination against denial of assault upon the right of the Jewish people to live as an equal member of the family of nations, where Israel emerges in this configuration as the collective Jew among the nations, or in its more lethal form as the Salman Rushdie among the nations, whereas the target of Fatwas and the like.

Again, simply put, traditional anti-Semitism is a discrimination against denial of assault upon the rights of individual Jews to live as equal members in a society.

The new anti-Jewishness is a discrimination against denial of assault upon the right of the Jewish people and Israel to live as an equal member of the family of nations. Traditional anti-Semitism is a Diaspora centered conception. The new anti-Jewishness has to be seen as an Israeli centered expression, and we need in that sense a new paradigm shift in our analysis and in our advocacy.

Again, simply put, to sum up this point, what is common to each form of anti-Jewishness, classical and new, is discrimination.

All that has happened is that it's moved from discrimination against the Jews as individuals to discrimination against the Jews as a people. Now, we have developed indicators to identify classical anti-Jewishness. Discrimination against Jews in housing, education, employment – I can go to the ten indicators, the point being that in each of these indicators you will find that classical anti-Semitism is in fact in retreat, which had led social scientists to say that we don't have to worry about the new anti-Semitism

But Jews intuitively feel this new anti-Jewishness, and what I am going to suggest to you is that what is needed is a paradigm shift, a new set of indicators by which we identify, monitor, unmask and in fact confront the new anti-Jewishness.

Time does not permit me to go into this set of indicator in its entirety I am going to chose just three or four and go through them very quickly.

The first is what might be called "genocidal anti-Semitism". By genocidal anti-Semitism I am referring to the public call for the destruction of Israel and the killing of Jews wherever they may be, attended by the perpetration of acts of terror in implementation of this genocidal anti-Semitism. There are three manifestations of it.

The first is the terrorist covenants of Hamas, Islamic Jihad and Hezbollah, which in their covenants, and we don’t take it seriously enough in terms of the use of words and the use of vocabulary, publicly call for the destruction of Israel and the killing of Jews wherever they may be, and when I use the term "genocidal anti-Semitism", I am using a term drawn from international law in terms of what genocide speaks about. There is at the same time, the second manifestation, the religious Fatwas, where, as I said, Israel becomes the Salman Rushdie of the nations.

And the third is the public call, by one member state of the international community, such as Iran, Iraq, for the destruction of another member state of the international community, and the worst thing is the silence, the indifference, the sometimes acquiescence or indulgence and even implied legitimization, including even by resolutions of the United Nations that are given to these acts of terror in support of this genocidal anti-Semitism, and I think we should begin to call this by the name that it warrants, these are not suicide bombers, and I know we intended to refine it by calling it as homicide bombers, these are in fact genocidal bombers, and in this international environment where words are important we should begin to call it by the ideology and the terrorism that in fact gives expression to it.

The second form of anti-Jewishness is what I would call "political anti-Semitism".

Here too you have three manifestations, very quickly: the discrimination against or denial of the right of the Jewish people to self determination, what Martin Luther King said was a "denial to the Jews of that which we would accord every other people on the globe"; second – the de-legitimization of Israel and the third is the attribution to Israel of all the evils of the world, in other words, Israel the poisoner of the international well, the contemporary analogue to the medieval classical anti-Semitism of the Jews are the poisoners of the wells, now in it's collective expression, of Israel as the poisoner of the wells, and here too, one has to join issue with it, because what we are speaking of here, in this political anti-Semitism, particularly in the attribution to Israel of all the evils of the world is what might be called "atrocity propaganda".

But how many of us know that in the indictment of Milosevic in the International Criminal Tribunal for former Yugoslavia one of the charges in that indictment was in fact atrocity propaganda, and how many times have we accused in international legal juridical terms of this de-legitimization as being expressive of atrocity propaganda? So here is another dimension in which we should join issue with it drawing upon international legal categories.

The third type of new anti-Jewishness is what might be called "ideological anti-Semitism".

In it's initial form we still think this is where it's at. It was the "Zionism is Racism" resolution, which Senator Daniel Moynihan called at the time "the giving the abomination of anti-Semitism the appearance of international sanction.". But it’s gone much beyond that, of which Durban was both metaphor and message.

I am referring now to the notion of Israel as an Apartheid state. And what do you do with apartheid states?

Well, at the very least and the most benign form you certainly divest in them, and that is why you have the divestment movement in the campus culture. But in the more lethal form, what you do with an Apartheid state is you call for its dismantling, the same way that one calls for the dismantling of South Africa as an Apartheid state.

And let me remind you that the world conference against racism in Durban did exactly that, it was intended to commemorate the dismantling of South Africa as an Apartheid state it turned into a call for the dismantling of Israel as an Apartheid state.

And if Apartheid is not enough then you add the Nazification of Israel to it, so the two great evils of the 20th century – apartheid and Nazism converge in the indictment with respect to Israel, and this tends to underpin even issues with regard to terror, because if Israel is indeed an Apartheid state, if it indeed is a Nazi state, therefore it has no right to exist. If it has no right to exist calls for its dismantling are indeed moral if not juridical imperative, and given implied justification and understanding for those who are allegedly using acts of resistance against this Apartheid Nazi state.

To borrow a French aphorism from the 2nd WW works well here because of the French: "Occupation a resistance!" So if you have occupation by an apartheid Nazi state, therefore resistance becomes in that sense understandable if not valid.

And this brings me to the forth and final indicator of the new anti-Jewishness, what I would call the most insidious form of anti-Jewishness because it's the most sophisticated form of anti-Jewishness.

I am referring here to anti-Jewishness proceeding under the banner of human rights and getting legitimation under the protective cover of the United Nations. An Orwellian inversion of law and language in which we may not even appreciate the manner in which it proceeds in this fashion.

Let me give you three very quick examples: the first is Durban, so well known here I won't even go into it, but as somebody who attended Durban and its festival of hate I can tell you the manner in which this Orwellian inversion of law and language was used and the conference document that emanated from Durban, the non-governmental conference document, the declaration against racism in which Israel is referred to as an Apartheid state etc., is being mainstream today in the campus and political and popular culture.

Palestinian Foreign Minister Riyad al-Maliki looks on prior to the start of an emergency session of the UN Human Rights Council on the Gaza crisis on July 23, 2014 at the United Nations Offices in Geneva.

The second is the United Nations Human Rights Commission, hell belt, and here I speak as a Professor of human rights, hell belt as the repository of human rights.

The United Nations here is the lynch-pin of the international human rights revolution. Yet, every year, the annual session of the United Nations Human Rights Commission begins with a country specific indictment, namely, an item that devoted only to the state of Israel, so item 9 of the annual meeting of the UN Human Rights Commission in March-April 2002, it will be the same as 2003, speaks of human rights violations by Israel in the occupied territories, a kind of Alice in Wonderland indictment, whereby Israel is singled out for indictment and sentencing even before the hearing begins, and once the hearing did begin, 40%, I repeat, 40% of all the resolutions passed by the UN Human Rights Commission, as I say, the repository of international human rights resolutions passed against one member state of the international community, namely Israel, while the major human rights violators, such as China or Syria and the like, enjoyed exculpatory immunity.

The problem here being simply that we're not only prejudicial to Israel, but in fact we are undermining the whole struggle of international human rights law.

Now, let me conclude by saying as follows: nothing that I've spoken about in terms of the new anti-Jewishness, and in particular anti-Jewishness in the international arena, is intended to suggest that somehow Israel is above the law or that Israel is not responsible for any violations of international human rights law like any other state, or that the Jewish people enjoy a particular preference or privilege because of the horror of Jewish suffering through the ages or the holocaust. Not at all!

Israel, like any other state, must be held responsible for any violations of international human rights law, that's the whole principle of equality before the law in the international arena.

But the problem is not, I suggest you, that anyone should seek or have inferred from my remarks, that Israel should be above the law, but that Israel is being systematically denied, and I am intensely using international human rights language here, Israel is being systematically denied equality before the law in the international arena, what lawyers would call "international due process".

The problem is not that human rights standards are being applied to Israel, which they should be, but that these standards are not being applied equally to anyone else, in some instances are not being applied at all to everyone else.

Not that Israel must respect human rights, which she must, but that the fundamental rights of Israel deserve equal respect, and this brings me therefore in this part to the international human rights revolutions of which reference made to the International Criminal Court, one could make reference as well to the expanding doctrine of universal jurisdiction.

Nuremberg Trials

The tragedy, and I don't know how many of us recall, was that the Jewish people and Israel were at the forefront for calling for an International Criminal Court, the forefront, in the late 40's and the early 50's are calling for the first ever permanent court of international criminal jurisdiction. Israel was the first country to invoke the doctrine of universal jurisdiction in the Aichman case that every country has not only the right but a duty to bring war criminals to justice.

The situation now because of what I discussed in terms of human rights in the international arena is such, that there is a concern of politically motivated prosecutions either in the ICC, which is the reason why Israel did not gratify the treaty, or in universal jurisdiction, and reference was made to Belgium and one can go to Denmark and so on; and a third manifestation of this international human rights revolution, along with the ICC universal jurisdiction is the duty to protect, and we heard yesterday about the notion of setting up an international protectorate in the territories in the same way that it was set up in Kosovo and in East Timor and because of the interaction of the international community in Rwanda and Bosnia which led to the tragedies.

So Israel finds itself in that sense really being targeted not only by the international human rights anti-Jewishness but even as the prospective target of the valid and dramatic parts of the internal human rights revolution. So what then do we do?

In closing, because time does not permit, I would have a whole approach, I think we need not only a strategic analysis, as I said, a new paradigm shift, a new conceptual grid by which we identify the new anti-Jewishness and thereby not only can identify but monitor, unmask and confront it, but we have to use the human rights language, and the language of international law, and make it clear that it’s not that Israel does not want to be a part of the international human rights revolution, it does not want to be a part of an international human rights revolution which is itself subverted to single out Israel for differential and discriminatory treatment in the international arena.

And so what we have to say, that the problem is not that these international dynamics that I mention are going to be prejudicial to Israel and the Jewish people, which are bad enough, but they are going to undermine the integrity of the United Nations, under who's auspices it takes place. It's going to erode respect for international human rights law in his name these things are being proclaimed.

It’s going to undermine the regime of international humanitarian law, under whose authority these things are enacted.

So we have to say to use the old refrain but with respect to the international human rights arena, that as it goes with Israel and the Jewish people so will it go with the rest of the community and so will it go with the rest of the international human rights system which itself maybe undermined by the attempt to use it as a club against Israel.

And one final, absolutely final word in this sense, that I begun by saying that the new anti-Jewishness is reminiscent to the atmosphere to the 30's and without parallel presence since the end of the 2nd WW.

I do want to make one point, because I think it's important to realize it: however dark the clouds may be, we should always remember that 2002 is not 1942. That there is a Jewish state today as an antidote to Jewish powerlessness. That there is a Jewish people who can come together whether it's in Herzliya or anywhere in a way that the Jews in the ghettos and the death camps in Europe could never have come together in the 2nd WW. That there are non-Jews prepared to join with what I call not just "a Jewish cause", but a just cause, if we will show them the way.

So in the end I can say: "Netzach Israel Lo Yeshaker!"


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Tags: Diplomacy, Advocacy, Diaspora, Terror, Law, Human Rights, Legal Rights, United Nations