Following is a legal analysis of the June 2023 report by Francesca Albanese, the UN Human Rights Council’s Special Rapporteur on Palestine.
By Dina Rovner, Legal Advisor at UN Watch
Introduction
UN Palestine rapporteur Francesca Albanese’s first report to the Human Rights Council proves exactly why she should never have been appointed to the position in the first place, as we warned the Council prior to her appointment in March 2022. Albanese is incapable of serving as a neutral and independent UN expert for anything involving the Palestinians, as UN rules require, and as she herself acknowledged prior to being picked for the job.
Her report accuses Israel of the worst crimes, using academic jargon like carceral continuum and open-air panopticon, and is characterized by a complete absence of historical, political, and military context, omission of any countervailing facts, and denial that an Israeli-Palestinian conflict even exists.
In Albanese’s world view, Israel is an evil colonial regime and the settlements are its colonies—an Israeli tool to “subjugate” and “dispossess” the Palestinians and to prevent them from realizing their “inalienable right to self-determination.” (Paras 96-98). This is a complete distortion which denies the historical rights of the Jewish people in Israel and ignores Palestinian intransigence. Ironically, the colonial paradigm does to the Jewish people exactly what Albanese accuses Israel of doing to the Palestinians—it effectively negates the right of the Jewish people to self-determination in Israel by characterizing them as alien conquerors. In fact, Jews have continuously resided in the Land of Israel since Biblical times and there are numerous Jewish holy sites and archaeological remnants throughout the Land of Israel, including in the West Bank. Jews over thousands of years have directed their daily worship towards the Temple Mount in Jerusalem, site of the Temple of Solomon and that of Herod, fervently praying to return.
In her report, Albanese stresses the need to “urgently” end Israel’s “illegal occupation,” which she asserts “cannot be remedied” (Paras. 5 and 98). However, she never discusses any realistic options for how the occupation could be ended, such as through a negotiated peace agreement which would result in agreed upon borders and two sovereign states living peacefully side by side. Even worse, Albanese denigrates the past peace attempts known as the Oslo Accords as a continuation of Israeli evil for adding “a layer of repression to Palestinian life under occupation” (Para. 11).
Instead, Albanese places all the blame on Israel, makes unilateral demands only of Israel and conveniently omits any discussion of Palestinian culpability for the current conflict. The report does not mention that the Palestinians have rejected every single peace offer ever put on the table, which would have given them an independent state, dating back to the 1947 UN Partition Plan and before.
It ignores the five-year terror campaign known as the second intifada which the Palestinians launched against Israel in 2000 to avoid having to resolve final status issues in the Oslo Accords—which would have led to a Palestinian state. Indeed, the report contains no information about Palestinian terrorism against innocent Israeli civilians at all. It’s hard to take Albanese’s claims of “urgency” seriously when her report does nothing to encourage the Palestinians to come to the negotiating table but rather completely disincentivizes them by demonizing only Israel as a criminal, apartheid state and calling for international legal prosecutions against Israel for war crimes and crimes against humanity.
Ironically, Albanese also contradicts her own claim that the occupation “cannot be remedied” (Para. 98) when she offers at least three different ways for Israel to “remedy” the situation (Para. 101) in her Recommendations.
Key Points
1. Conclusions First, Facts Later
The agenda of this report clearly is to feed into the Palestinian campaign to demonize and delegitimize Israel in the international arena as an apartheid state that commits a litany of war crimes and crimes against humanity against the Palestinians. Alleged crimes delineated in the report include institutionalized discrimination, enforced disappearance, unlawful deprivation of liberty, denial of the right to a fair trial, deportation, and apartheid. According to Albanese, Israel’s crimes against the Palestinians are so terrible that they “challenge the very foundations of the international legal order.” (Para. 103).
Albanese knows that to establish a crime against humanity under the Rome Statute certain elements must be fulfilled (Paras. 22-25). Therefore, she weaves the buzz words of these elements into her report even though they don’t really fit and are conclusory. Therefore, in the very first sentence of the introduction Albanese states that the report will look at “widespread and systematic arbitrary deprivation of liberty in occupied Palestinian territory,” and then she concludes In Paragraph 94 that “Palestinians have endured widespread and systematic arbitrary deprivations of liberty” for generations. In her conclusion, Albanese also refers to “Israel’s state policy of domination of the Palestinians as-a-people enforced through beyond-prison confinement.” (Para. 97). Moreover, throughout the report, Albanese uses key words and phrases like “domination and oppression,” “persecution,” “institutionalized discrimination,” “subjugation,” “racial domination,” etc.
However, the facts don’t back up Albanese’s conclusions because there is no “widespread and systematic” Israeli policy against the Palestinians. There is an ongoing political and military conflict in which Palestinian militants commit terrorist attacks against Israeli civilians and Israel has undertaken various security measures to protect its citizens. For more information on this, see Agenda Item 7: Country Claims & UN Watch Responses. In order to reach her conclusions, Albanese must completely ignore the existence of Palestinian terrorism and deny that Israel has a right to self-defense. She must re-cast all of Israel’s security measures as a “carceral continuum, where different levels of captivity co-exist”—her words. Thus, according to Albanese, Israel’s intent to dominate and dispossess is proved by the multiple “levels of captivity” to which it subjects the Palestinians “through physical, bureaucratic and digital mechanisms.” (Paras. 79-80).
In essence what Albanese is saying is that all Palestinians are imprisoned by Israel due to the very fact that an occupation exists and until Israel—the occupying power—unilaterally ends the occupation, all Palestinians continue to be incarcerated by Israel. It’s an interesting theory which notably blames only Israel for the conflict and absolves Palestinians of any obligations or responsibility. However, it has no legal basis in international law. Moreover, even when Israel does unilaterally “end the occupation” as it did when it withdrew from Gaza in 2005, Albanese refuses to accept that and assigns all moral onus on Israel anyway.
2. Israel Has No Right to Self-Defense
Given Albanese’s predetermined conclusion that Israel commits apartheid and other crimes against the Palestinians, it is not surprising that she absolutely rejects any security justification for Israel’s actions.
- “In the occupied Palestinian territory, the unlawfulness of the Israeli occupation negates any legitimate title to exercise authority with respect to Gaza or the West Bank, including east Jerusalem.” (Para. 14).
- “The pervasive control over (and unlawful alteration of) the area that is internationally recognised as occupied territory, undermines Israel’s security claims and the ‘necessity’ to arrest Palestinians.” (Para. 41)
- “By shifting from ‘the security of the occupying power’ to ‘the security of the occupation itself’, Israel has disguised ‘security’ as the permanent control over the territory it occupies and tries to annex.” (Para. 96).
Throughout the report, Albanese also dismisses Israel’s security considerations by putting the word security in quotes. For example, the report refers to Palestinians killed for “alleged security reasons” (Para. 75) and Israeli restrictions on Palestinians’ ability to receive permits due to Shin Bet “security suspicions” (Para. 88). The word terrorism is never mentioned and there is no discussion of Israeli civilians killed or injured in Palestinian terror attacks. Rather than praising and encouraging security cooperation between Israel and the PA to prevent Palestinian terrorism, Albanese attacks it (Para. 12) and ultimately recommends it be ended. (Para. 102).
3. Palestinians Have a Right to Resist
At the same time, Albanese fiercely defends the Palestinians’ “right to resist.” In Paragraph 94, she states “Without condoning crimes that Palestinians have committed during decades of illegal occupation, most criminal convictions of Palestinians have been the result of a litany of violations of international law, including due process violations, that taint the legitimacy of the administration of justice by the occupying power. Many such convictions concern legitimate expressions of civil and political rights, and the right to resist an illegal foreign occupier.”
While in this UN report Albanese is careful not to specify what she means by a “right to resist,” in other contexts she has been very clear this right includes armed resistance. For example:
- In late November 2022, Francesca Albanese spoke at a Hamas conference in Gaza attended by senior members of the Hamas and Palestinian Islamic Jihad terrorist groups, and effectively endorsed their violent tactics saying “you have a right to resist this occupation.”
- In a May 2022 News interview, Albanese stated that “Palestinian violence is inevitable because the right to exist of the Palestinian people has been denied for 55 years.” (May 17, 2022, RAI News Interview).
- In June 2022, Albanese justified Palestinian terrorism, stating that “Israel says ‘resistance equals terrorism’ but an occupation requires violence and generates violence. The Palestinians have no other room for dissent than violence.” (June 9, 2022, Atreconomia).
- In an August 2022 tweet replying to @herzallah_moath who said international law clearly supports “occupied people’s right to armed resistance,” Albanese concurred: “That is a necessary conversation to have.” (August 8, 2022, Twitter).
Furthermore, during the August 2022 between Israel and the Palestinian Islamic Jihad terrorist group, Albanese tweeted that Israeli strikes against PIJ targets were a “flagrant act of aggression” and suggested that PIJ was entitled to protect itself by indiscriminately firing rockets at Israeli civilians.
Albanese’s approach to convicted Palestinian teen-terrorist Ahmad Mansara is instructive. At the age of 13, Mansara and his 15-year-old cousin stabbed and seriously injured two Israelis, including a 12-year-old boy, in the Jerusalem neighborhood of Pisgat Ze’ev. Mansara was sentenced to nine and a half years in prison for attempted murder. Yet, Albanese ignores his own culpability and instead portrays him as a victim of “unlawful practices” by Israel, describing his case as “haunting.” (Para. 71).
4. Palestinian Violations Blamed on Israel
As is typical for UN reports on the Israeli-Palestinian conflict, Palestinian actors are given a free pass and Israel is blamed for their violations. The report does briefly address some Palestinian violations, but this is subject to the disclaimer that they are being assessed only “to the extent they contribute to tightening the grip of the regime imposed by the occupation” (Para. 3), meaning Israel is ultimately responsible. According to Albanese, Israel is not only responsible for Palestinian violations of Palestinian rights, but also for the internal political divisions between the Palestinian Authority and Hamas and for the inability of the Palestinians to effectively govern themselves. In Paragraph 95 she accuses Israel of preventing the Palestinians from being able to “unite, self-govern and develop as a polity.” At the same time, she rejects the entire Oslo process, particularly the “Palestinian self-rule,” i.e., Palestinian Authority created by Oslo, because, according to her, it “added a layer of repression to Palestinian life under occupation.” (Para. 11). Albanese is critical of Israeli administration but at the same time refuses to accept Palestinian self-governance as an alternative. It is ironic that Albanese accuses Israel of “expropriating” the “agency” of the Palestinians (Para. 95), when she herself does exactly that by failing to hold them accountable for their own bad acts and malfeasance.
5. Gaza is Occupied Even Though Israel Withdrew in 2005
Israel completely withdrew its civilian and military presence from the Gaza Strip in 2005. Nevertheless, Albanese considers the territory to be under “military occupation” by Israel and asserts that Hamas’s presence in Gaza does not “absolve Israel of its obligations as the occupying power.” (Para. 16).
6. Routine Sovereign Acts Become Evil When Done by Israel
Albanese’s report is so extreme that even routine acts of sovereignty that are fully acceptable when done by other countries are transformed into the worst violations, even crimes against humanity, when done by Israel. These include border control functions (Para. 83), intelligence gathering (Para. 30), entry permits for non-citizens (Para. 86), requiring proof of intimate relationship for visas to foreigners (Para 90), and plea-bargaining in criminal cases (Para. 59). Significantly, Israeli security measures in the West Bank successfully thwart hundreds of terror attacks every year.
7. Sources Biased and Outdated
The sources consist primarily of one-sided reports from 15 different biased lobby groups, all of which promote the Palestinian narrative against Israel. In addition, many of the sources are outdated.
