UNHRC Special Rapporteur Declares Israeli Settlements ‘A War Crime.’ Here’s Why He’s Wrong.

by Hugh Fitzgerald

It’s not enough that Israel is perennially in the dock at the UN Human Rights Council, according to its permanent Agenda item #7, “Human rights situation in Palestine and other occupied Arab territories.” Israel is the whipping boy of the UNHRC. It has had more resolutions against it adopted by the UNHRC than have all the other 192 members of the UN put together. Not China, not Russia, not Iran, not North Korea, but tiny Israel is the state most condemned as a supposed “violator” of human rights. Now the Special Rapporteur on human rights in the Palestinian territories for the UNHRC, Michael Lynk, has called for Israeli settlements to be declared a “war crime.” More on Lynk’s outrageous – but for the UNHRC perfectly acceptable – claim is here: “UNHRC investigator: Back ICC by halting Israeli settlements war crimes.” by Tovah Lazaroff, Jerusalem Post, July 10, 2021:

The international community must hold Israel accountable for the war crime of settlement activity by backing the International Criminal Court’s probe into such action, United Nations Human Rights Council investigator Michael Lynk said on Friday [June 9].

“Israeli settlements do amount to a war crime,” Lynk told the UNHRC during its 47th session in Geneva, as he called for an arms embargo against the Jewish state until such time that it withdraws from the West Bank and east Jerusalem.

“This [war crimes] finding compels the international community to assess the plentiful accountability measures on its diplomatic and legal menu, and to make it clear to Israel that its illegal occupation, and its defiance of international law and international opinion, can and will no longer be cost-free,” said Lynk.

“The evidence before our eyes is overwhelming that the Israeli occupation will not die of old age,” explained Lynk, who holds the post of UN special rapporteur on the situation of human rights in the Palestinian territories.

“The Israeli government will not suddenly wake up one day and decide on its own that an alien occupation that is metastasizing into annexation and even apartheid, and a one-state reality of vastly unequal rights, is entirely out-of-step with the 21st century,” he said. “It will only end with the continued activism of Palestinians and the decisive intervention of the international community.”

“To that end, he called on UN member states to support the ICC and “develop a comprehensive menu of accountability measures to be applied to Israel should it continue to defy international law,” including “reviewing trade, investment and cultural agreements, and ending arms sales with Israel.

Lynk, who is a Canadian legal expert [sic], submitted a report to the UNHRC, which was discussed Friday under Agenda 7. The council is mandated to debate alleged Israeli human rights abuses at each of its sessions.

The report he submitted comes on the heels of a UNHRC decision at the end of May to open a permanent war crimes probe into Israeli actions. This would include an investigation of alleged human rights abuses within sovereign Israel, including Jerusalem. It would also include a probe outside Israel’s sovereign boundaries, including the West Bank and the Gaza Strip.

Agenda Item #7 of the UNHRC is supposed to be about “the situation of human rights in the Palestinian territories.” That’s Lynk’s remit. But Michael Lynk convinced the UNHCR to expand his own powers, so that his mandate includes investigating “human rights abuses” in “sovereign Israel” (meaning: Israel within the 1949 armistice lines). Essentially, all of Israel will now be wide open for his inspection and, as should be obvious from his venomous remarks, his condemnation. He will be doing more than investigating “human rights abuses” against the Palestinians in the “Palestinian territories,” but also how Israeli Arabs fare in Israel proper. That’s still not enough for Michael Lynk. He wants to go farther, to have what he defines as a “permanent war crimes probe” – “war crimes”! – into Israeli treatment of both the Palestinians in Gaza and the West Bank, and Israeli Arabs. How Israel can be committing “war crimes” in the absence of war, and especially how it can be committing “war crimes” in its own “sovereign territory,” is entirely unclear. But “war crimes” is much more damning and horrific-sounding than “human rights abuses.”

The UNHRC mandate of a standing agenda item against the Jewish state, such as Agenda Item 7 and the open-ended probe into the country’s alleged human rights abuses, are unique to Israel. No other countries have such standing mandates leveled against them.

Israel disputes the accusation that settlement activity is a war crime, as did the Trump administration, which held that settlement activity was not inconsistent with international law.

It is not merely that “settlement activity” is “not inconsistent with international law,” but that the relevant international law, which includes the League of Nations’ Mandate for Palestine, expressly calls for the “close settlement of Jews on the land” (Article 6 of the Mandate). Which land? The land from the Golan Heights in the north, to the Red Sea in the south, and from the Jordan River In the east to the Mediterranean in the west, that was assigned to the Palestine Mandate, in order to become the future Jewish National Home.

Michael Lynk appears oblivious to the Mandate for Palestine, and its encouragement of Jewish settlement. He appears not to know that the UN, in Article 80 of its Charter – known informally as the “Jewish people’s article” — recognized the continuing validity of the League of Nations’ mandates that were still in existence in 1945. That means the U.N. was bound by the terms of the Mandate for Palestine, including Article 6, requiring that the administrator of the Mandate (Great Britain) “shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”

Can Lynk really be unaware of the Mandate and its meaning, and especially of Article 6? Perhaps he is aware, understands its significance, and is deliberately avoiding mentioning it in any of his reports because he has no convincing way to undermine its contents. He is clearly determined to vilify, and cause real harm to, the Jewish state, by calling for the UNHRC to “develop a comprehensive menu of accountability measures to be applied to Israel should it continue to defy international law,” including “reviewing trade, investment and cultural agreements, and ending arms sales with Israel.”

Lynk not only ignores the express provisions of the Palestine Mandate, but he makes no mention, either, of UN Resolution 242, which was unanimously adopted on Nov. 22, 1967, and which recognized Israel’s right to retain territories it had won in the Six-Day War provided they were needed for the Jewish state to have “secure [i.e. defensible] and recognized borders.” Arab diplomats tried repeatedly to have Resolution 242 worded differently, so that it would call for an Israeli withdrawal from “all the territories” or “the territories” it had won, but they failed; the version adopted called only for an Israeli pullback from “territories.”

The chief drafter of Resolution 242 was Lord Caradon (Hugh M. Foot), the permanent representative of the United Kingdom to the United Nations from 1964-1970. At the time of the Resolution’s discussion and subsequent unanimous passage, and on many occasions since, Lord Caradon always insisted that the phrase “from the territories” quite deliberately did not mean “all the territories,” but merely some of the territories:

Much play has been made of the fact that we didn’t say “the” territories or “all the” territories. But that was deliberate. I myself knew very well the 1967 boundaries and if we had put in the “the” or “all the” that could only have meant that we wished to see the 1967 boundaries perpetuated in the form of a permanent frontier. This I was certainly not prepared to recommend.

On another occasion, to an interviewer from the Journal of Palestine Studies (Spring-Summer 1976), he again insisted on the deliberateness of the wording. He was asked:

The basis for any settlement will be United Nations Security Council Resolution 242, of which you were the architect. Would you say there is a contradiction between the part of the resolution that stresses the inadmissibility of the acquisition of territory by war and that which calls for Israeli withdrawal from “occupied territories,” but not from “the occupied territories”?

Lord Caradon answered:

I defend the resolution as it stands. What it states, as you know, is first the general principle of inadmissibility of the acquisition of territory by war. That means that you can’t justify holding onto territory merely because you conquered it. We could have said: well, you go back to the 1967 line. But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to the needs of the situation.

Had we said that you must go back to the 1967 line, which would have resulted if we had specified a retreat from all the occupied territories, we would have been wrong.”

The IDF believes that at a minimum, both the Golan, and the Jordan Valley, have to remain in Israeli hands. The Golan now looms over Syria, helping to prevent a potential military thrust from that country; before 1967, in Syrian hands, it loomed over Israel, and was the place from which Syrian artillery rained down fire on Jewish farmers far below. That is why Israel annexed it in 1981. Control of the Jordan Valley allows Israel to better prevent an invader coming from the east. For Lynk, however, if he had dared to mention (he carefully does not) UN Resolution 242, he would have twisted it to say what it most definitely did not say: that Israel must give up “all the territories” it won in the Six-Day War. He doesn’t want to have to explain away Lord Caradon’s insistence, as the main author of the Resolution, that the “1967 line…was a rotten line” and that “if we had specified a retreat from all the occupied territories, we would have been wrong.”

Summary:

The Mandates system of the League of Nations was never thought, pace Lynk, to “flagrantly violate international law.” It became part and parcel of international law. It did not cease to be relevant, either, when the League dissolved, to be replaced by the United Nations. Article 80 of the U.N. Charter – known as “the Jewish people’s article” – committed the U.N. to bring to a successful conclusion any mandates that still remained. That meant the Mandate for Palestine.

UN Resolution 242 offers another, and independent basis, for Israeli claims to territory taken in the Six-Day War, based on the Jewish state’s security needs. It may be argued that not only control of the Golan and the Jordan Valley, but the settlements in Judea and Samaria, help to secure the state. Those half-million Israelis living in the West Bank, with almost all of the adults having served in the military, certainly constitute a force of reservists who can make things harder for any potential uprising or invasion.

Lynk wants the UNHCR to convict the Jewish state, in doing what it has every right to do, of “war crimes.” And no matter how outrageous, absurd, and grotesque this charge may be, no one should doubt that the UN Human Rights Council will — enthusiastically — endorse it.

First published in Jihad Watch.