What Role Should International Law Play?

The question this panel poses, what role should international law play, is easy to answer in the abstract. International standards and mechanisms should not be misused as weapons of war. On the contrary, international standards and mechanisms should be used to counter lawfare.

The difficulty the panel question poses is not how to answer the question. The difficulty is rather how to make that answer real.

How do we prevent the misuse of international legal standards and mechanisms? How do we turn international legal standards and mechanisms around so that they can be aids in combating lawfare?

The answer is standard by standard, mechanism by mechanism. We have heard of a litany of efforts to manipulate these mechanisms to delegitimize and demonize Israel. There is no one magic button to press to turn round all at once the manipulation of all these mechanisms and instruments. Rather the battle has to be fought one standard and mechanism at a time.

Because there are so many standards and mechanism at play here, let me just pick one mechanism, a mechanism, which arguably, judged by the extent of abuse and manipulation, is the worst of all - the United Nations Human Rights Council. It is easy to say that the Human Rights Council should not be obsessed with anti-Zionist monomania. But how do we make that happen?

First of all, I do not think we can walk away from the problem, and just ignore the attacks coming from the Human Rights Council. Prussian military theorist Carl von Clausewitz in 1832 wrote: "War is nothing but the continuation of politics by other means." One can say the same about the abuse of legal standards and mechanisms. Lawfare has been the continuation of warfare by other means. One can no more ignore an attack through abuse of legal standards and mechanisms than through abuse of any other weapon.

Although it is hard to remember this in its current incarnation, the UN human rights system is a legacy of the Holocaust. We owe it to that legacy to do what we can to make the system work, to make every effort to end its hijacking by those inimical to the Jewish state and the Jewish people.

When we go to court, there are two audiences, the court of law and the court of public opinion. One can lose in the court of law and win in the court of public opinion.

When it comes combatting the abuse of the Human Rights Council, turning the Council itself around may be a daunting task. But the battle of human opinion can still be won. And winning that battle, in the long run, will have greater significance than losing the battle over resolutions at the Council.

Asking why we should be combatting abuse of the Human Rights Council at a time when impacting on that abuse seems like a forlorn task is akin to asking why we should ask a repressive regime to respect human rights when it is apparent that respect for human rights is the last of the regime's concerns. That sort of question suffers from an overly narrow selection of the intended audience for the effort.

Protests of human rights violations have three basic audiences - the perpetrators, the victims and the public at large. The primary audience has to be the victims. Surviving victims of human rights violations suffer both physically and mentally. A large part of their mental suffering is their sense of betrayal, their feeling of abandonment, the despair of being left alone to their fate.

Advocacy of their cause, the show of solidarity helps the victims to deal with their victimization, tells them that they are not alone. Expressions of concern about human rights violations, though they may not move the perpetrators to change their behaviour, surely move the victims to help them cope with their suffering. Crimes against humanity are crimes against us all. By showing solidarity with the victims, we acknowledge that we too are victims of these crimes.

When the UN silences real victims and instead absorbs its time with Israeli bashing, we must say that this muzzling is wrong. By combatting abuse of the UN Human Rights Council, we join common cause with human rights victims everywhere.

Providing examples of gross violations about which the UN has remained silent accomplishes the dual purpose of giving voice to the victims and presenting a powerful argument on the need for change of the Council. Even should the effort to change the Council go nowhere, the value of giving voice to the victims remains.

One can say the same about the UN obsession with Israel. We would expect human rights advocates to protest attacks of Jews on the streets simply because they are Jews. We should expect no less from the human rights community when the Jewish state is systematically beaten up within the walls of the UN. Hostility to the Jewish state by diplomats and political leaders within the UN is no more respectable than antisemitism by gangs on the street.

Walking away from the UN, saying nothing about the malfunctioning of the UN, means turning a blind eye to its victimization of the Jewish state and its envenoming of the conflict in the Middle East. The call for ending abuse of the UN Human Rights Council focuses attention on its incitement to hatred against the Jewish state and the Jewish people. Decrying abuse of the UN Human Rights Council is a call for global solidarity in protest against the victimization of the Jewish state and the Jewish people.

At the end of the day, turning the UN Human Rights Council around will be achieved through public awareness and mobilization. Unless a functioning UN human rights system is promoted by the human rights community and endorsed by humanity at large, the UN's ideals will wither. When we put aside abuse of the UN Human Rights Council because those in charge of the Council are little interested, we ignore our most crucial support, the public, in the struggle for respect for human rights. Mobilize global humanity behind changing the UN Human Rights Council and eventually the UN itself will follow.

There are two different ways we can combat abuse of the UN Human Rights Council. One is to deal with the Council as it is and attempt to change its course. That is something I and my colleagues in B'nai Brith International are planning to do next week. I am going to Geneva over the weekend to join a BBI delegation in order to meet with permanent representatives to the UN of various states members of the Council to attempt to persuade them to stand up to the abuse of the Council by the anti-Zionist lobby.

Second we must attempt reform of the Council. The General Assembly resolution creating the Council in April 2006 stated that "the Assembly shall review the status of the Council within five years", that is to say by April 2011. We should take advantage of the opportunity this review presents and propose changes to the structure of the Council so that it can not continue in its abusive ways.

Again, easier said than done. But the very effort serves a purpose, highlighting the defects in the Council and underlining the illegitimacy of its Israel bashing efforts.

It would take far more time than allotted to me here to go through the mechanics of what is wrong with the UN Human Rights Council and how it can be reformed. B'nai Brith Canada has posted on its website a report I have written on the details of the reforms we would like to see, which I invite you to read.

Should democratic states disgusted with the perversion of the Council just abandon the Council to its self imposed fate? If the Council were a world unto itself, ignoring the Council might make sense. But the invective inside the Council chambers reverberates around the world. Anti-Zionists, like hate promoters everywhere, try to manipulate established institutions, to give credibility to their incitement.

We see this pattern with courts, universities and libraries. It is no different with the United Nations. When outsiders hear that an arm of the United Nations condemns Israel, many are not sophisticated enough to know that this condemnation is a manoeuvre orchestrated by the enemies of Israel. They take the condemnation as an indication that Israel has done something wrong. The UN manipulation puts wind in the sails of anti-Zionism; it increases the sympathy for the anti-Zionist cause around the world.

For those concerned with respect for law to absent themselves from the Council does not make much of a point. Absence from the Council and debate over its reform is likely to draw a lot less attention than presence where that presence is used to combat anti-Zionism and stand up for human rights.

A French saying is "les absents ont toujours tort", the absent are always wrong. Better that the anti-Zionist invective within the Council be answered than that it go unanswered. After all, what matters for the Council is not so much what happens within the Council itself as how what happens there is used outside. What we say inside the Council can be used outside; if we are absent and says nothing, we have nothing we have said at the Council to use.

It is distasteful to descend into an arena wallowing in anti-Zionism and antisemitism, where the cards are stacked against rationality, where violators win almost every vote. Yet, the alternative, leaving a global forum to violators and anti-Zionists alone, is worse.

There may be a tendency, when faced with the malfunction of the United Nations Human Rights Council, to note that malfunction with dismay and move on. Yet the inability of the UN to deal effectively with human rights is too important an inability just to decry. What is wrong has to be made right. None of the proposals for change we endorse may work, singly or together. But the importance of the goal means that we have to try.

David Matas is a Winnipeg lawyer and senior honourary council for B'nai Brith Canada.