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Published online by Cambridge University Press: 26 May 2016
The purpose of this article is to review the manner in which the human rights treaty bodies (HRTBs) treat Israel, focusing on the system of periodic reporting, with the aim of examining whether Israel is being accorded ‘special treatment’ or, put more simply, whether a bias against Israel can be ascertained in the work of the HRTBs. In analysing the concluding observations (COBs) issued in respect of six of Israel's recent periodic reports, we identified four distinct population groups within Israeli society, and studied the number and nature of the COBs targeting each of these groups. This we termed the ‘output’. We then looked into the amount of the alternative information provided to the Committees by civil society organisations, which we termed the ‘input’. An examination of the two reveals a clear correlation between the relatively greater weight accorded to the Palestinian population in the occupied territories in the input side of the exercise (the alternative reports) and the output side (the COBs). Thus, what might initially be perceived as proved bias in the treatment of Israel by the HRTBs in light of the seemingly disproportional weight they accord to the conflict, turns out to be at least partially influenced by the information and materials provided to the Committees.
1 Nigel Rodley, ‘The Role and Impact of Treaty Bodies’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press 2013) 621.
2 UNGA, ‘Implementation of Human Rights Instruments’, 2 August 2012, UN Doc A/67/222, Annex I; UNGA Res 68/268, 9 April 2014, ‘Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System’, UN Doc A/68/268.
3 ibid para 2.
4 This is almost ‘common knowledge’ among Israeli advocates and official representatives: see, eg, Alan M Dershowitz, The Case for Israel (John Wiley & Sons 2003) 181–89, and the recent speech of PM Binyamin Netanyahu in which he stated that the ‘UN anti-Israel bias hasn't changed since the “Zionism is racism” libel’: Lahav Harkov, ‘Netanyahu: UN Anti-Israel Bias Hasn't Changed since “Zionism is Racism” Libel’, The Jerusalem Post, 5 January 2016, http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Netanyahu-UN-anti-Israel-bias-hasnt-changed-since-Zionism-is-racism-libel-439472.
5 According to Ambassador Ido Ahorni, ‘[s]ince its inception in 2006, the UNHRC has released a total of 103 resolutions. Astonishingly, 56 have focused on criticizing Israel. The UNHRC has held a total of 21 special sessions to address dire humanitarian crises throughout the world. One has addressed Sudan, another Sri Lanka, another [the] Ivory Coast and another Libya – while 7 of the 21 special sessions have irrationally targeted Israel’: Ido Ahorni, ‘How the United Nations Human Rights Council Unfairly Targets Israel’, Time, 30 July 2014, http://time.com/3060203/united-nations-human-rights-council-israel.
6 Geir Ulfstein, ‘Individual Complaints’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies (Cambridge University Press 2012) 73.
7 For Israel's status of ratification, including the acceptance of individual complaints procedures, see OHCHR treaty bodies database, http://indicators.ohchr.org.
8 Attention should still be drawn to a less known practice, which has evolved in some Committees, of issuing statements on matters that may be of concern to them. This is not a formally mandated function, and the statements do not hold any legal standing (statements are mentioned in the Note by the Secretariat, ‘Other Activities of the Human Rights Treaty Bodies and Participation of Stakeholders in the Human Rights Treaty Body Process’, 22 April 2013, UN Doc HRI/MC/2013/3, paras 24–27). Nevertheless, it is safe to say that this exercise reveals some of the Committees’ positions even beyond those areas in which they chose to issue statements. By choosing to address a specific matter or a particular situation rather than another, a Committee expresses its priorities and precedence. Since there are no rules of procedure or guidelines here, each Committee is free to choose on which issue, if any, it wishes to pronounce and in what manner (as explained in Rodley (n 1) 631–32). As in this article we wish to focus on the Committees' main task, namely the consideration of state parties' reports, we shall briefly look at one case study here – the practice of the CEDAW Committee on the issuing of statements. The OHCHR's website contains all statements issued by CEDAW since 2008 (http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Statements.aspx). Significantly, 8 out of the 25 statements issued between 2008 and 2014 addressed conflict areas. Of these, 2 were on Syria (the second statement, in October 2014, addressed ‘the situation of women and girls in Iraq and Syria’) and 2 related to Gaza. In other words, 25% of the Committee's undertakings with respect to ongoing armed conflicts globally were devoted to the Israeli–Palestinian outbreaks in the conflict in Gaza. Obviously, this sample is far too small, and more comprehensive research is needed before any firm conclusions can be drawn regarding the question of neutrality or politicisation as reflected in the exercise of issuing statements.
9 Rodley (n 1) 628–29.
10 For an extensive review and critical analysis of the Israeli position see Orna Ben-Naftali and Yuval Shany, ‘Living in Denial: The Co-application of Humanitarian Law and Human Rights Law to the Occupied Territories' (2004) 37 Israel Law Review 17. Israel has consistently maintained this position in relation to the HRTBs: see, eg, UN Convention on the Elimination of All Forms of Discrimination of Women, ‘Responses to the List of Issues and Questions with regard to the Consideration of the Fourth and Fifth Periodic Report: Israel’, 4 February 2011, UN Doc CEDAW/C/ISR/Q/5/ADD.1, paras 4–8; and the CEDAW Committee's criticism of this position in ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women: Israel’, 4 February 2011, UN Doc. CEDAW/C/ISR/CO/5, paras 12–13.
11 Levin, Ayelet, ‘The Reporting Cycle to the United Nations Human Rights Treaty Bodies: Creating a Dialogue between the State and Civil Society – The Israeli Case Study’ (2015) 48 George Washington International Law Review 315, 346–49Google Scholar. The authors of this article had encountered such views when conducting meetings with state officials following a position paper published in 2013 by the Rackman Center for the Advancement of Women (Bar-Ilan University), aiming to encourage a broader range of CSOs to participate in the reporting process to the HRTBs: ‘Israel Reports’, http://rackmancenter.com/wp-content/uploads/2016/03/Israel-reports.pdf (in Hebrew).
12 In recent years, and more recently as part of the HRTB strengthening process, there has been a move towards adopting the ‘Simplified Reporting Procedure’: UNGA Res 68/268 (n 2) 3; Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford University Press 2014) 227–28. However, the basic distribution of sources of information remains the same, and the only difference is that the state party's answers to the list of questions prior to reporting replaces both the periodic report and the answers to the list of questions and issues.
13 Ruth Halperin-Kaddari and Marsha Freeman, ‘Multiculturalism on Multiple Fronts: CEDAW, International Norms, and Benign Neglect’, paper presented at the International Symposium on Freedom of Religion and Gender Equality, University of Heidelberg (Germany), May 2012. In this research we found a high correlation between alternative reports that reported harmful practices and their appearance in the concluding observations (COBs). While pointing out certain violations in the alternative reports did not necessarily guarantee their being addressed in the COBs, no violation of these topics appeared in COBs without having been reported in the alternative reports made available to the Committee.
14 ‘Concluding Observations of the Human Rights Committee: Israel’, 29 July 2010, UN Doc CCPR/C/ISR/CO/3; ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women: Israel’, 4 February 2011, UN Doc CEDAW/C/ISR/CO/5; ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel’, 9 March 2012, UN Doc CERD/C/ISR/CO/14-16; ‘Concluding Observations of the Committee on the Rights of the Child: Israel’, 21 November 2013, UN Doc CRC/C/ISR/CO/2-4; ‘Concluding Observations of the Human Rights Committee: Israel’, 21 November 2014, UN Doc CCPR/C/ISR/CO/4. The reason for this choice is that they are the only reports for which there is full access (through relevant websites) to all information that was provided to the Committees in their examination of the reports.
15 Notably, Israel's consistent policy with regard to the human rights treaties in the occupied territories (OT) is to refrain from reporting in writing, but be prepared to answer such questions during the dialogues with the HRTBs. Thus, Israel's reports do not address the Palestinian population in the OT, but official information is available to the HRTBs as part of the answers provided in the dialogues.
16 eg, ‘Concluding Observations of the Committee on the Rights of the Child: Israel’ (n 14) para 9: ‘The Committee urges the State party to implement as a matter of utmost priority its recommendations relating to children living in the OPT …’; ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women: Israel’ (n 14) para 23: ‘The Committee urges the State party to …’. This informal categorisation is based on the experience of one of this article's authors (Halperin-Kaddari) on the CEDAW Committee, having personally participated in the formulation of more than 200 COBs over a period of nine years. Indeed, even within the two groups, the different terms may sometimes carry varying degrees of strength, so that ‘calls upon’ may be viewed as somewhat stronger than ‘encourages’, but such an internal classification is too suggestive and subjective.
17 We are well aware of the inadequacy of this parameter as an indication of the quality of the reports. Ideally, quality should be measured by substance, including the actual content, the scope and nature of resources and references. We hope to be able to conduct such an in-depth study in the future. However, since experience shows that the length and breadth of submissions to the HRTBs also prove to be an indication of their seriousness, within the limits of the current study we resort to this parameter.