Professor S. Michael Lynk is the current (7th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (March, 2016 to Present). He is an Associate Professor at the Faculty of Law, Western University, in London, Ontario, who works in one of the most important legal and investigative positions in the history of rights and law reportage for the United Nations on this issue of Israel and the occupied Palestinian territories. As with the interviews with Professor Richard Falk (5th United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967) and Professor John Dugard (4th United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967), who held the positions prior to Lynk, this became another humbling experience because of the living reality of the human rights abuses Lynk investigates in a professional capacity. Their – Dugard’s, Falk’s, and Lynk’s – importance in the legal and rights history of this subject matter cannot be understated. In many ways, they set the tone and calibre of human rights and international humanitarian law reportage to this day. In addition, this exists as a conversation with the current, as opposed to a former, United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967. He has not been permitted access while the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 for first-person analysis of the human rights violations and breaches of international law in Israel and in the occupied Palestinian territories (the Gaza Strip, East Jerusalem, and the West Bank).
Here we talk about why he took this position, the very specialized form of human rights advocacy, what has happened to some in the past in the same position when they tried to get into relevant territories or nations, phrases including “occupied Palestinian territory” or “occupied Palestinian territories,” the Fourth Geneva Convention “Occupying Power” phrase and settler-colonial states, a Canadian national self-critical reflection or examination, United Nations report published on companies in illegal settlements, a short-term economic benefit from business finances and goods coming from Israeli settlement businesses, a trust or hope rather than stepwise extension of a solution, countries with settler-colonial histories, moves being made by the Chief Prosecutor of the International Criminal Court (Fatou Bensouda), the unlivability of the Gaza Strip in which 2,000,000 live, a global pandemic, attempts to simplify the entire Israeli-Palestinian issue or the entire Israeli-Palestinian conflict to religion, advice given by Richard Falk and John Dugard, appropriate responses to both of those charges, the alliance of Benny Gantz of the Blue and White Party and Benjamin Netanyahu of the Likud, some of the violations that we’re seeing from Fatah, Hamas, or the Palestinian Authority, terms from Israel including “terror tunnels,” “Iron Dome, or “rockets,” the reality on the ground of the efficacy of the Iron Dome for Israel, etc., the “hugging” of international law, and some of the more robust authoritative organizations, authors, or speakers on the Israeli-Palestinian issue.
*Interview conducted on April 6, 2020.*
Scott Douglas Jacobsen: This is the second U.N. Special Rapporteur interview, S. Michael Lynk. Let’s start with the length of time that you have been in this position, and why you took this position, I ask because this position has a checkered history in what comes at people when they do this very specialized form of human rights advocacy.
Professor S. Michael Lynk: I was voted unanimously to the position by the U.N. Human Rights Council in March of 2016. It is a 6-year unpaid position. So, I keep my day job as a Law Professor at Western University’s Faculty of Law, where I teach Labour Law and Constitutional Law. I will have been in the position for exactly four years on May 1, which is when the position officially started. As part of my work, I draft two substantive reports each year. I deliver them to the Human Rights Council in Geneva, Switzerland. I deliver the second to the U.N. General Assembly in New York, the Third Standing Committee of the General Assembly in New York. My reports are usually on specific themes. My report in 2019 in New York was on the issue of accountability and the responsibility of the international community to confront Israel with respect to its serial violations of human rights. My report in March 2019, a year ago, was on the Israeli exploitation of water and natural resources in the occupied Palestinian territories, which are forbidden to be done by an Occupying Power. I choose specific themes. I try to rely on work both the U.N. does, and work done by civil society. I have to say; my work is made an awful lot easier by the top-drawer civil society organizations, human rights organizations, that exist both in Israel and in Palestine, and internationally. Human Rights Watch and Amnesty International, activists and organizations in Europe, and human rights defenders – both Israelis and Palestinians, produce excellent reports, high-level advocacy. I sit on their shoulders in being able to write my reports to the international community.
Jacobsen: What has happened to some in the past in the same position when they tried to get into relevant territories or nations in the area to make sure that they can get the most accurate feel for the areas that they’re doing human rights reportage on?
Lynk: Sure, my prior two predecessors as Special Rapporteur; both were denied access by Israel into the occupied Palestinian territories. Richard Falk flew into Israel with an understanding that he was being permitted to enter and to go through a week or two-week long schedule visiting the occupied Palestine territories. He was arrested and detained overnight and sent back to North America. The same thing happened with my immediate predecessor. An Indonesian, Makarim Wibisono, who took the position with the presumption that Israelis would let him in. He resigned after 20 months because the Israelis would not let him in, and did not fulfill their promise. So, I’ve been obstructed in the ability to do my work. I think I would be able to do a better job if I was able to be let in and meet with Palestinians and Israelis, and with Israeli governments and with the Palestinian Authority as well, to do my work. But if I am not allowed in, as I am not, I have a pretty decent Plan B, which is to rely on the top-drawer work being done by civil society with their work and analyses, when I issue reports, commentary, and press releases on Israel and more specifically the occupied Palestinian territory.
Jacobsen: Following from the last phrase, “occupied Palestinian territory” or “occupied Palestinian territories,” as well as one of the earlier phrases “Occupying Power,” what is the contextualizations for those terms, for those who may not know when reading this?
Lynk: It is an important question that you ask. The world community has, since the West Bank, East Jerusalem, and Gaza Strip, among other territories, were occupied by Israel in the June 1967 war. The international community reflected through the United Nations has been very clear. In that, the Fourth Geneva Convention applies to these territories. The Fourth Geneva Convention is, of 1949, designed to protect civilians under occupied territory. It learned from the bitter lessons of the first and second world wars. That there has to be a detailed codified regime that spells out the extensive responsibilities that an Occupying Power has when they take a territory, not their own sovereign territory. These kinds of responsibilities focus on a range of issues. But the most important issue reflected in the Fourth Geneva Convention and in international humanitarian law is that an Occupying Power is simply a temporary sovereign over the territory. It gives the Occupying Power no right to annex even a square inch of the territory occupied. It must return the territory in as reasonable and as speedy a time as possible back to the people who are being occupied.
So, when we examine the very strict measures outlined in international humanitarian law and the Fourth Geneva Convention to how Israel has conducted its occupation. The international community has been very clear. There has been a range of violations of fundamental tenets of international law, including, obviously, the transfer or encouragement of civilian populations, Israeli-Jewish civilian populations, to settle in settlements in East Jerusalem and the West Bank and once upon a time in Gaza as well. Israel has annexed East Jerusalem and parts of the West Bank in 1967 and reaffirmed that in 1980. The annexation of East Jerusalem is illegal under international law. An Occupying Power cannot do that. The creation of 240 or so settlements in East Jerusalem or the West Bank, where approximately 650,000 to 680,000 Israeli settlers now live is illegal under international law. In fact, it has been a war crime for the last 20 years under the 1998 Rome Statute, which set up the International Criminal Court. The conduct of its occupation such as diverting water from the West Bank into Israel’s water resources, building quarries in the West Bank, using West Bank land to dump sewage and other environmental waste, the range of human rights violations through curfews, through the unequal treatment of Palestinians under occupation. There is a range of different violations that the international community, primarily through the United Nations have been identifying, those are the responsibilities given to me during my tenure as a Special Rapporteur: to comment on, to issue reports on, to investigate to the best of my ability, and to work with civil society and universities, and other international organizations to bring these human rights violations to an end.
Jacobsen: Some commentary will focus on the settler-colonialism. In the sense that, Israel will be defined, as per the Fourth Geneva Convention “Occupying Power” phrase, as a settler-colonial state. That’s a larger context and terminological issue of settler-colonialism. One of the ironies when colonialism was being discredited in the ‘30s and ‘40s. This was a time when Israel was formally being defined by its formal geographic boundaries and instantiated and then was passed off from the British to the United Nations, not necessarily in the cleanest of ways [Laughing]. So, this makes it one of the longest-standing human rights issues for the bureaucratic juggernaut known as the United Nations. Is this one of the last remnants of settler-colonialism from the 20th-century into the 21st?
Lynk: I am aware of the literature that talks about Israel being a settler-colonial society or a settler-colonial state. I’ve read a variety of commentary that, obviously, dates that beginning with the Balfour Declaration continuing to today. Certainly, wherever else that debate may lead us with Israel before 1967, Israel’s creation of settlements, colonies. The settlement and the encouragement of them, this has to be the biggest economic enterprises initiated by Israel. The creation of the 240 settlements in East Jerusalem and the West Bank, maintaining them, sustaining them, growing them. This would be a classic example of settler-colonialism. Settler-colonialism is the movement of people from the metropole, from usually a European nation. Although, in this case, it comes within Israel into the conquered or colonialized territory. In order [Laughing] not to benefit the Indigenous people being displaced, but in order to establish a colonial sovereign claim or an independent sovereign claim over that territory, certainly, when you look at the patterns of Dutch and British settlement in South Africa, British settlement in Rhodesia and in other parts of Africa, Spanish settlement in Latin and South America, these differ in some ways from what’s going on since 1917, particularly 1967. But I think there probably are different branches of the same tree going on. Certainly, I know in the academic literature on settler-colonialism. Israel’s settlement of colonies in East Jerusalem and the West Bank is commonly referred to as a classic modern example of a 20th-century problem that was, by and large, done and resolved in the 20th-century to allow colonies to become independent nations. You’re certainly right with respect to your location of timelines. Just at a time when decolonization was sweeping the world, particularly in the Caribbean, in Africa, and in Asia, in the 1960s and 1970s, Israel was launching upon a colonization project by initiating these settlements within a few months after it conquered the territories in the June, 1967 war.
Jacobsen: In terms of some of some of the war crimes, and the violation of the Fourth Geneva Convention mentioned before, how, as a national self-critical reflection or examination, is Canada complicit in this?
Lynk: There was once a quote from an unnamed – never got the name – Liberal Cabinet Minister who said, ‘We would aspire to be Israel’s best friend. We realize someone else has that title. I would be quite happy to be Israel’s second-best friend.’
Lynk: Certainly, our policy since the 1940s with having a Canadian, the first dean of my law school actually, Ivan Rand, sitting on the United Nations Special Committee on Palestine in 1947, which recommended the partition of a very small country. Not only was the partition against the wishes of the majority Indigenous population at the time, it was also, even on the elements of partition, a very unfair partition with a third of the population assigned 56% of the territory, including some of the very best agricultural land and, certainly, most of the coastline. From Canada’s initial support in 1947, through Ivan Rand’s participation on the UNSCOP committee, to the 1947 vote in November of that year and Canada’s vote in favour of partition, to its early recognition of Israel, through or since 1967. Canada has been articulating a 15-year statement, it believes there should be a Palestinian and Israeli state. It believes in a two-state solution. It believes that there should be a Palestinian and Israeli state. That annexation and settlements are against the Fourth Geneva Convention and against international law. It won’t agree to any change in the boundaries, except for those agreed to by the parties. That statement is actually quite good.
But when you compare this to the Canadian actions, whether the United Nations General Assembly every year in the basket of resolutions that come up to vote every December by every Member (State) of the United Nations or others. Canada, beginning with Paul Martin’s regime, certainly, intensified under Stephen Harper and really left unchanged under Justin Trudeau. Our voting record has been to vote in a very tiny minority in 6 to 9 nations.
Lynk: Israel, the United States, sometimes the Czech Republic, Canada, and then a handful of the island (Member) States in the Pacific that were once ruled by the United States: the Marshall Islands, for example, or Vanuatu. These countries are a very small minority who end up voting “No” to these resolutions. Even though, these resolutions offer a fair, balanced approach to wanting to solve the Israeli-Palestinian conflict in a manner that is consistent with international law. When our former Foreign Secretary, Minister of Foreign Affairs Chrystia Freeland, made an official visit to Israel in November of 2018, she spoke to the Israeli Council on Foreign Relations, a very prestigious body. Prime ministers, presidents, top diplomats, top academics, who are routinely invited to speak to that council. She delivered an address in Israel. It is a matter of public record, where she spoke about the relations between Israel and Canada. She was only a few kilometres from occupied Palestinian territory. She never used the word “occupation,” never criticized Israel for its settlement policy, or for its annexation. She was very brief in her speech, in the delivery of her speech, with respect a two-state solution. Essentially, what foreign ministers over the past 17 to 18 years have said in Canada, Conservative and Liberal alike, is to urge the parties to go back to the negotiating table. That’s the only solution they say.
It will not be achieved through the International Court of Justice (ICJ) or through the International Criminal Court (ICC), or through votes in the United Nations. It has always struck me as very similar to a policeman at a complaint entry desk at a police station having a battered woman, a battered wife, come in to complain about the beating that she is receiving from her husband or partner and asking for police action, and the police asking her to go back and settle things by herself. It has the very same ring to it. I think, in many ways, when Canada says it is a defender of human rights. That it believes in a global-based, rules-based system. That is standing by international law as a means to resolve international conflicts. It has a blind spot when it comes to Israel-Palestine. That, when it was meaningfully meant, it was going to apply international law. It would not have signed a new free trade agreement with Israel in the last 15 months, which did not have a human rights clause in it. Unlike, the European free trade agreement with Israel. It would not allow Israeli settlement goods to enter into the Canadian market as if it were Israeli goods. Those are two examples of the assistance Canada winds up giving to Israel, winds up deepening the occupation, not helping it to redirect on a path that will bring the occupation to a complete end.
Jacobsen: A United Nations report was published on companies in settlements, illegal settlements. 188 were reviewed. 112 met the criteria for inclusion in the formal database. Some consider this a conservative database. Nonetheless, it is coming from the United Nations Human Rights Council. So, it is coming from a reliable, authoritative, international human rights body. Canada was not in that listing. Ones that were: Luxembourg, the United States, the United Kingdom. Israel with 94 of the companies, naturally. What is the importance of such a database? What, in practical terms, can be done?
Lynk: Sure, think of it this way, the issue that we have with Israel and Palestine is not a lack of international law. International law has been pronounced by the International Court of Justice, the United Nations Security Council, the United Nations General Assembly, among other bodies for years and years with respect to the violations of international law that is going on predominantly by Israel in its conduct of the occupation. The issue is not the lack of international law. The issue is the lack of international accountability. When we think of the mechanisms we have presently, the countermeasures the international community could use; that’s available to it, in order to bring Israel back into line with international law and to end the occupation. There hasn’t been that many initiated. Those that have been initiated have been by primarily the Palestinians themselves. The data is one. The International Criminal Court proceedings are an important second part or accountability measure. The database is important because it sheds a spotlight on the settlement economy. We know, given Israel’s small size, heavy dependence upon international trade, that if the international community was serious about its pronouncements on international law and their application to the Israeli-Palestinian conflict. It could with effective use of countermeasures, particularly economic or diplomatic countermeasures; Israel would very quickly realize that the international community meant what it had been saying all along and bring the occupation to an end. I see the database as one small step.
If we shed a spotlight on the companies, Israeli and international companies, involved in furthering the entrenchment of the settlement economy and then international action is taken to consider sanctions against those companies, prohibitions against those companies, boycotts against those companies, then we will have done a great deed towards slowly reversing the entrenchment of the settlements in the West Bank and East Jerusalem. I think you’re right regarding the database. I don’t think the database had a broad enough mandate in terms of the companies that you could wind up looking at. To name a couple of examples, there is a major German company, Heidelberg Construction, which has a number of quarries in the West Bank for housing materials. They are meant for housing developments in the settlements (West Bank and East Jerusalem) and for housing and construction in Israel itself. Heidelberg was not mentioned in the database. There are two Israeli companies, which operate wineries in the West Bank: Psagott and Shiloh. They, among other places, ship their settlement wines into Canada tariff-free under the free trade agreement as products of Israel. There is presently litigation ongoing in the federal court, in the Federal Court of Appeal, seeking to mandate that those settlement products coming into Canada, namely the settle wines, should be labelled as products of Israeli settlements, not Israel. The Canadian government is leading the litigation to defend the practice of allowing these goods to come in tariff-free with the label “Products of Israel.”
This probably gives you an indication of where Canada lies in terms of drawing a line in the sand. My most recent report calls for – and I will call for – is the international community to focus on accountability measures. I think the database is an important first step. It has to be continued. It has to be a living tool. It has to be properly resourced financially and staff-wise. It has to have a broader mandate, so it can look at any significant contributor to the settlement economy to be able to give out an accurate economic picture of foreign and Israeli companies; that is giving economic oxygen to the Israeli settlements.
Jacobsen: By analogy, if individuals want to relieve some anxiety or gain some temporary pleasure, they will take a toke of the cigarette. They will smoke in spite of the warning labels on the package. Similarly, if a short-term economic benefit from business finances and goods coming from Israeli settlement businesses, illegal settlement businesses, are these statements on the packaging, in practical terms, effective? Will they just be ignored?
Lynk: That’s up to civil society to determine. If Israeli wines coming in from the settlements have a more accurate label on them in terms of their origin, then civil society’s next step is to bring to attention discerning wine connoisseurs as to the political problems of buying Israeli settlement wine. Certainly, that worked – you’re not old enough to know this, but this worked 35 years ago with respect to South African wines. Many wine connoisseurs like South African wines. Once it was pointed out what they contributed to, the installment of the Apartheid regime in South Africa, we first boycotted them. They wound up not being allowed into Canada. As a constitutional law professor, I finished teaching my class several cases with respect to the constitutionality and government legislation requiring mandatory health warnings on tobacco products.
We don’t probably give enough credit. But the effect of the work done by any tobacco activist over the last 35 or so years to bring health warnings into society with respect to what it means to consume tobacco products. We have significantly cut the use of tobacco in Canadian society in a substantial fashion. In part, not because we banned cigarettes, but because we introduced significant healthcare measures together with the banning of tobacco advertising, and putting graphic warnings on tobacco products, over time, they all had a significant impact, significant positive impact, on the levels of Canadians who wound up smoking. That was a major governmental effort to try to bring down smoking rates. It will have to be left to civil society on Israeli products coming into Canada from Israeli settlements. But if we get the proper labelling on the wines, it opens the door for civil society to begin to take positive action around settlement products coming into Canada.
Jacobsen: I see a split there. On the one hand, civil society comes in national forms described before. So, that’s one example. We have evidence of it. International, we’re talking civil society in terms of a lot more countries. That’s a massive scaling of that type of solution to this. It is a statement, basically, based on trust or hope rather than, maybe, a kind of stepwise extension of that kind of solution.
Lynk: When you do polling of Canadians, or polling of Americans as well, you’ll find, certainly in Canada, a significant degree of Canadians expressing the sympathy of the Palestinian aspiration to self-determination and a significant proportion of Canadians expressing criticism towards Israeli policy towards occupied Palestinian territories. That’s not reflected in elite government opinion in what our government ends up doing. I think there is a latent empathy or a sympathy towards the injustice going on in the Israeli-Palestinian conflict. What we need is more mobilization in civil society and civil society organizations that would in Canada ensure that we hold governments to account with respect to their policies towards Israel and Palestine, certainly, that’s what you see in Europe. I am impressed with activists in some of the countries that I deal with, say in Belgium, or in the Netherlands, or in Ireland, or in Great Britain, with respect to their influence on high-level political and diplomatic decision-making with respect to Israel and Palestine. Certainly, they are more effective than we are in Canada. They even have large “C” “Conservative” governments more willing to criticize Israeli settlements in the occupied territories than the Canadian government.
Jacobsen: Do countries with settler-colonial histories – New Zealand, Australia, the United States, Canada – harbour the possibility, as they, at least, develop some reconciliation efforts – New Zealand has done more than the other three? Could this then potentially be an extension from the sympathy you’re noting in some of the survey data towards the Palestinians and, maybe, a change of policy at elite levels?
Lynk: One can be hopeful. The fact that in New Zealand, as you point, and we’re going through the early parts of the conversation for the last 5 or 10 years here in Canada. There’s a greater recognition that we are a settler-colonial population. I hear terms, particularly when I hear Indigenous leaders in Canada talk about the history and politics today that they’re confronting, about the settler-colonial background or the harms of colonialism. In a way, the people who are interviewing them, generally white, do not challenge them anymore. We have moved the needle in Canada on the hugely adverse impact European colonialization had on the Indigenous population and continues to have today. At some point, I would like to think that as we make stronger and stronger links here in Canada between European settlement and Indigenous populations and the harms done to the Indigenous populations; that we will make the same parallels with respect to European colonization in Palestine in the first part of the 20th century and the harm done there to the Palestinian population, and particularly with respect to the harm being done to the Palestinians in the occupied territory since 1967.
Jacobsen: What is the status at present of the moves being made by the Chief Prosecutor of the International Criminal Court, Fatou Bensouda? How are things proceeding?
Lynk: Right now, we are at an interesting stage. She is finished her preliminary review. She thinks there is enough evidence to move forward with a formal war crimes investigation, into the Israeli conduct in the 2014 war on Gaza with respect to the Israeli shooting of largely unarmed Palestinians since March, 2018 at the Gaza frontier, with respect to the settlements, and with respect to the conduct by Hamas and other armed groups within Gaza in shooting rockets into populated Israeli civilian areas. She said there is one procedural question, the jurisdictional question, which needs to be answered by the pre-trial chamber. It is about whether Palestine is a state for the purposes of the 1998 Rome Statute in order to be able to join the Rome Statute and to be able to initiate a request for an investigation of war crimes committed in occupied Palestinian territory. Because of the coronavirus, there has been a delay in the submission of various written arguments to the pre-trial chamber. So, what we were hoping for was an answer by May, it may well be delayed into the Summer. But there is a hope that it will be the Summer when the pre-trial chamber may issue a ruling on the jurisdictional question.
If it rules in favour of what the Chief Prosecutor has asked for, i.e., there is jurisdiction at the International Criminal Court to investigate. Then it will proceed to the formal investigation stage. If she says at some point down the road, “I have enough evidence to proceed to trial. We’re going to charge these individuals.” Remember, the International Criminal Court’s focus is on individual war crimes, not states. If she says, “I will identify these military leaders, militia leaders, or political leaders.” Then it will proceed to the third and final stage, which is trials before the International Criminal Court. That’s the other major accountability measure actively in place at the present time. Certainly, I think it will have military and political leaders worried in Israel. Certainly, Israel has been trying to coordinate, the government of Israel has been trying to coordinate, its reaction to the Chief Prosecutor’s stance towards the United States. The United States, presently, has made it very clear. Even though, it is not a member of the International Criminal Court; that it will do what it can do to thwart the ongoing proceedings involving the Palestinian complaint against Israel. To me, what is going on at the International Criminal Court, perhaps, at the moment, the most important accountability measure. We won’t be expecting the cavalry coming in from the General Assembly [Laughing] or from the Security Council to bring a positive end to the occupation.
It will have to come from the Palestinians themselves on the international diplomatic and judicial front and/or by civil society organizations, such as the launch, in Canada, of the wine labelling case. Those are the kinds of initiatives that we wind up needing to hold Israel up to the full extent possible for its ongoing defiance of international law and international consensus.
Jacobsen: Even if all of these measures are put in place, come to fruition, e.g., labelling of goods in the wine case, the court case going through the charging of particular individuals through Fatou Bensouda at the International Criminal Court, more reportage with more straightforward commentary with shooting at the kneecaps of journalists, medical personnel, civilians, children, and so on, there have been reports, for some time, at least 2015, probably earlier, about the unlivability of the Gaza Strip in which 2,000,000 live. Is there enough time even if these are put in place for some form of sustainable dignified livelihood?
Lynk: Gaza, in 2012, the United Nations released a report raising the question as to whether Gaza would be livable by 2020. We are there now. It released a subsequent report in 2017 on Gaza, saying, ‘Almost all of the social and economic and health markers had gotten worse since 2012.’ So here we are, 2020, I think, probably, somebody could make a very good argument that Gaza has become rather unlivable. No, there isn’t starvation there. Yes, there probably would be hunger and starvation if it weren’t for the international community. The money support from UNRWA’s operations. Money coming in from Qatar. Money coming in from the European Union. The money coming in from Turkey, which just built a brand-new hospital in Gaza. These are all important humanitarian gestures, but these are not bringing the Gazan-Palestinians any closer to salt land. They are keeping its head above water and not allowing it to go underwater with respect to this. Gaza has a collapsing healthcare system. It has regular supplies of power for only 10 to 14 hours per day. It has among the very highest unemployment rates of any economic unit that the World Bank winds up following. That’s despite having a fairly well-educated population, particularly well-educated younger population. It is ruled by Hamas with other Palestinian militias there, which are cruel and wind up ignoring human rights issues – have serious human rights violations of their own. But the primary issue has to be the almost 13-year-old massive blockade that Israel imposes on the Gaza Strip. It blockades Gaza by land, by sea, and by air. Nothing and nobody gets in, and nothing and nobody gets out of Gaza, except without Israeli permission.
That means with a collapsing healthcare system. Palestinians who are too sick to get care in Gaza, e.g., may get sick from cancer, have to seek permission from the Israelis to travel from Gaza to Palestinian hospitals in East Jerusalem or the West Bank to wind up dealing with those particular issues. Israel has had a recent record documented by the World Health Organization that it winds up denying a significant number of those applications. I believe the year was 2017, may have been 2018. But there were 54 Palestinians from Gaza who had applied to have travel permission from the Israelis to go to Palestinian hospitals in East Jerusalem or the West Bank who needed treatment and winded up dying. It is impossible to say whether their lives would have been lengthened had they received permission to go. But certainly, it is an indictment that those people couldn’t go in the first place when they, obviously, were making applications based on the fairly serious nature of their health. There has been an inability of Palestinians in Gaza to import high-tech machinery to conduct some of the high-level healthcare. Because the Israelis would refuse to allow some of the healthcare equipment in because it may be used for “dual-use.” It may have a military use as well. So, the Palestinian hospitals are not only relatively ill-equipped due to a shortage of doctors and nurses, but also ill-equipped due to a shortage of equipment to do diagnostics. Equipment to do radiation. Drugs to do a wide variety of health treatments. Basic health equipment, as well, such as gauzes and masks. These have all, at one time or another, been in short supply in Gaza in recent years in large part due to the blockade and the need to obtain Israeli permission for every single item that winds up coming into Gaza.
Jacobsen: Also, we’re in the midst, based on the World Health Organization statement, of a global pandemic. Something comparable, apparently, to the Spanish Flu of 1918/1919. In other words, this is a once-in-a-century occurrence. It is surprising to many, but ongoing. This is SARS-CoV-2 giving symptoms of COVID-19 or C-19. With this verge of collapse or extraordinarily inadequate healthcare system situation for the Palestinians in general, if SARS-CoV-2 does spread in the occupied Palestinian territories, what would be a predictable outcome?
Lynk: Sure, keep in mind, we talk about the occupied Palestinian territories. We’re talking about three different geographic areas ruled by three different authorities and have three different standards of living. But all of them all well, well, well below the Israeli standard of living: Gaza, East Jerusalem, and the West Bank. There are hospitals in East Jerusalem. There are hospitals in the West Bank. They can give care comparable to a lower-middle-income country. They don’t have the budgetary resources or the staff resources, or the equipment resources, to handle a large-scale pandemic. If COVID-19 ends up getting a deep grip into West Bank society, things are even worse in Gaza, where the annual per capita income the West Bank would be somewhere, probably, in the range of $3,000 or more than $3,000 per year American. It is probably a little more than $1,000 in Gaza and has been declining over the last number of years, ever since the blockade was imposed. The big worry, in Gaza, is the 2,000,000 with a small stretch of land with an entirely inadequate healthcare system that is extraordinarily under-resourced. That, in terms of the specifics of COVID-19, the inability to be able to test, let alone effectively treat, let alone effectively isolate, let alone have enough ICU beds, that would wind up managing a crisis if there was a stampede going to the hospitals. Gaza has had weeks and weeks of preparation.
Keep this in mind, the international community still considers Gaza to be occupied territory. Even though, Israelis, actually, left or moved its army more than 15 years ago. It is still occupied territory. Israel still has a number of responsibilities under the Fourth Geneva Convention, including significant health responsibilities to ensure that epidemics don’t take hold and that there is a satisfactory level of healthcare provided to the people there. That means Israel would have responsibilities that there are adequate treatment facilities there, adequate drugs, adequate materials such as gloves and masks, and of other forms of equipment and, maybe, even ensuring that there are adequate numbers of staff who are there to, maybe, respond to COVID-19, should it take hold in Gaza. So, the worries, I have read a fair amount on COVID-19 and Gaza. All of them are expressing concern or alarm as to what would happen there. It hasn’t happened yet. But we do know COVID-19 doesn’t obey boundaries. We know the persons with COVID-19 have already appeared in Gaza. All we can do is hold our breath and make sure that it doesn’t find itself entrenched in there. Also, that pushes Gaza and the international community to make sure there are enough people and medical goods to deal with COVID-19 should it attack Gaza.
Jacobsen: Some of the secular community, in spite of that is all said and in other interviews and in publications over decades, attempt to simplify the entire Israeli-Palestinian issue or the entire Israeli-Palestinian conflict to religion. This seems, if I am frank, extremely ignorant and… other things. When talking to Richard Falk, who held the position before, as we both know, he speaks of a notion of “biblical entitlement” as part of the issue. What role does religion or even biblical entitlement play in this overall issue?
Lynk: I think he is probably correct in the identification of that term. Certainly, Jews who have been part of the movement to Israel and the establishment of the state of Israel and the occupation after 1967. Some Israeli-Jews have used religion as a justification that the Bible is a form of real estate deed to be able to claim sovereignty over the mandate Palestine and, perhaps, beyond those boundaries. At the end of the day, I think religion winds up being a smokescreen or an argument to use, but what is fundamentally at work here is human rights and the denial of human rights. I remember when I first became aware of the Israeli-Palestinian conflict when I was going to McGill for graduate work in the mid- to late-1970s. I encountered young, very liberal American Jews studying at McGill in those days who were joining committees in support of Palestinians. To me, that was an eye-opener. It was an astonishing revelation that this wasn’t a struggle over ethnicity, ultimately. It wasn’t a struggle over religion. If young American Jews could wind up thinking through the particular issue and identify what was missing as the bottom-line harbinger of conflict was, then it was a struggle over rights. Then it seemed to me anybody could wind up identifying that. Certainly, I feel reinforced by that today in my role as Special Rapporteur when I deal with progressive and liberal Israeli organizations and individuals who wind up spending a large part of their professional life or their personal life agitating against the occupation and wanting to seek some kind of just, fair, equitable settlement based on international law and based on mutual respect between Israelis and Palestinians. Let’s face it, there are approximately 13,000,000 predominantly Israeli Jews and Palestinian Arabs, Muslim and Christian, who live between the Jordan River and the Mediterranean Sea. Neither is going anywhere.
The only long-term hope for any of them is to find a way of living equitably under the rule of law with a deep respect for human rights and a finding a way of developing a constitutional order, whether a two-state or a democratic one-state, for them to live in prosperity and harmony with one another. I think when there finally is a respect for human rights in Israeli society, in Palestinian society, and between Israelis and Palestinians; you have the basis for a cooperative society or a cooperative two societies living either with each other or side-by-side each other. It would probably be a model for the rest of the Middle East. That’s where my hope winds up going to, probably because I am so immersed in the issue of human rights. I see that as a primary issue that supersedes what religious differences there are and what ethnic issues there wind up being. Because at the end of the day, in a world that’s divided by religion, by class, by ethnicity, it is a human-made phenomenon, human rights and international law, that have the best chance of bringing us together. International rights and international relations, the spine of these are international law. The heart of this international law is international human rights law and international humanitarian law. If those wind up being respected and wind up putting curbs on avaricious behaviour on either Palestinians or Israelis, then they have a chance of finding themselves in an orderly, equitable, and just society or just societies. That will learn to use whatever tensions are between them in a cooperative and positive way rather than in an almost entirely negative way as it is right now.
Jacobsen: Some of the advice given to you, prior to entering the position, from others who held the position before, e.g., Richard Falk and John Dugard, etc. They mentioned one thing in particular, which is to be fearless. Why?
Lynk: [Laughing] They, actually, said two things to me. I would be curious where you found that.
Jacobsen: One was fearless. The other one was to make sure that, basically, what you say is as robustly substantiated as possible.
Lynk: Right, that was given to me by Richard Falk. Richard said to me. It’s the best. He and John Dugard gave me lots of words of very wise advice. But the best advice of all was to be fearless on the one hand. That I should stand up for human rights when I see them violated. That I should be outspoken in my defence and my advocacy for that. But he said the other thing was to be responsible. In that, to make sure that when you make a criticism or make a defence of human rights, I’m basing it on well-documented events and evidence. That I can back up what I wind up saying. That’s the best advice for a whole range of different things that you want to do in life that Richard wound up giving me. When I sit down to write a report, to give a press statement, to sit down to speak to governments, to sit down with civil society organizations, or other academics with respect to my work as Special Rapporteur, “fearless” and “responsible” govern virtually everything that I wind up saying.
Jacobsen: In terms of the responsibility and in terms of the fearlessness, granted, many have come before. Many have come under a lot of pressure. I’m sure. We’re both aware of several cases on that front. To those who document human rights violations and advocate human rights violations, in this particular issue, if someone critiques Israeli policy as a violation of international human rights or of international humanitarian law, they can be charged as an anti-Semite. In other words, they are given the charge of anti-Semitism. Or if someone is not of Jewish background, they have an Arab background. Then they can have a charge of being biased because of having an Arab background. What are the appropriate responses to both of those charges?
Lynk: I think it is to hug international law as much as possible. I am not saying this just because I am a lawyer. Because there are many people who do very good work on law, international law, with respect to Israel and Palestine who are not lawyers, but who understand the legal framework is the one common human-made platform that we’ve all wound up creating; that every country, at least on paper, is committed to wind up obeying and putting into practice. If you can show that you are operating from international law, and in particular human rights law and humanitarian law, you apply that in the analysis that you wind up conducting on Israel-Palestine. Then you end up putting yourself in as irreproachable a position as you can with respect to the inevitable criticism that will come back. John Dugard has been heavily criticized for his claim for apartheid. Boy, there are not many people on the planet, given his background (South African), who would know better what apartheid looks like than him. Richard Falk, particularly Richard Falk perhaps, because he is Jewish as well as a phenomenal human rights lawyer and scholar. He gets inevitably attacked for his views and because he is probably seen as defying organized Jewish community – not consensus because the Jewish community in Canada, the United States, and elsewhere (in particular on Israel and Palestine) – and institutions have been fierce in their criticism of him. [Laughing] I can only imagine how much that winds up hurting. Myself, I was criticized when I was first given this appointment by the current government, the new liberal government in Canada by the Foreign Minister.
Jacobsen: Also, this is in spite of unanimous voting from the United Nations Human Rights Council.
Lynk: Look, I wouldn’t have taken this position without knowing what the blowback could potentially be. I am not naïve to wind up thinking that you could criticize Israeli practices in the occupied territories without some people have a strong contrary view to who you are, what you’re saying, and what your motivations may wind up being. As long as I can attach myself to excellent Palestinian civil society and Israeli civil society, and international civil society reports and advocacy on this, as long as I can document my critical commentary with respect to the growth of the settlements, with the rise of annexation in the air, with respect to the lack of accountability being demonstrated by the international community towards Israeli practices, and base that all on what we commonly agree is out litmus test – international human rights law and international humanitarian law, then I have gotten thicker skin, certainly, in the last four years, but I can wind up living with what I wind up putting up. Obviously, I want to find language that will get the greatest number of people to pay attention to what I am writing. I try to do that. But I also try to do this in a manner that doesn’t downplay the very real patterns of human rights violations that are ongoing there. They have to be called out in that way.
I am lucky. Certainly, when I go to Europe, when I go to Geneva to the United Nations, or New York and meet people from the United Nations, doors open for me. I get to meet high ranking diplomats, civil society organizations, and top scholars, with respect to this. I get fairly prominent platforms to speak at universities and through the media on this. It’s a wonderful privilege that I have to be able to do this. But as we find out a few minutes ago, I get to do this. I try to be as fearless [Laughing] and responsible for putting forth what I think is the truth and the stance of international law to examine Israeli practices and, sometimes, Palestinian practices as well.
Jacobsen: Israel had an election.
Lynk: Had many elections [Laughing].
Jacobsen: [Laughing] Right, I was about to say, “Another election.” A surprise to many was the alliance, coalition, joining of Benny Gantz of the Blue and White Party and Benjamin Netanyahu of the Likud. Also, the Joint List had more seats than ever before with 15 out of 12, which is 2 more than before. What is the stance of this new partnership on oPt?
Lynk: If you’d asked me last week, and if you ask me a week from now, the politics in Israel seem exceptionally fluid, even more than regular Israeli politics.
Lynk: All I can say, as to the latest of what I’ve wound up reading; Benny Gantz has been tempted into a coalition government with Benjamin Netanyahu. It split his own party. It split the other minor Jewish party on the left, which is the coalition between the Labour Party and Meretz. Where two members, I believe, of the Labour Alliance are going over into the government as well, the issue, right now, seems to be everyone using the argument, ‘Oh, we need an emergency national government because of the COVID-19 challenge to Israeli society.’ But, certainly, Prime Minister Netanyahu is saying, ‘As a condition for joining the government, you have to agree to some form of annexation coming up. It was part of my promises in the last 3 elections. Certainly, it is within my own party and the parties right of Likud. They all expect annexation measures to be taken for this coalition government.’ Who wouldn’t expect that? He not only has his own 58 seats all expecting annexation. But certainly, there are annexation drives by other parties to the left of Netanyahu that were elected. Also, he has the American government on the annexation side as well. We will see in the next couple of days what the ongoing negotiations are to complete a government.
There are subtle issues still left to be resolved. But the pressure from the Israeli right, which is substantial – has a substantial size in the Israeli Knesset – is saying, ‘Look, we may not have this chance again for the next foreseeable future, where with an American president who has endorsed a plan named after him, substantial annexation of parts of the West Bank for all of the Israeli settlements, all or almost all of the Jordan Valley. After January 2021, we cannot waste this singular opportunity to be able to go forth and annex.’ My sense is how Benjamin is a much more skilled political operator than Benny Gantz, than any Israeli politician in government now. We are getting very close to annexation now. That’s what I am expecting will be the final core in the agreements among all the different parties. I know one thing is who gets what Cabinet post. The policies that will guide this government over the next 18 to 24 months; I would be surprised if immediate annexation was not part of the agreement.
Jacobsen: What about the oPt side? What are some of the violations that we’re seeing from Fatah, from Hamas, from the Palestinian Authority?
Lynk: Sure, some of them have to do with torture, arbitrary arrest, with respect to the degree of surveillance on their own populations, with respect to probably or particularly the need for democracy. They lack democratic institutions. They are 14 years into a 4-year mandate. They haven’t had elections. I want to acknowledge the difficulty in trying to organize elections when you don’t have control over East Jerusalem and don’t have control over Gaza and don’t have control over large parts of the West Bank. The Palestinian Authority has control, full military and civil control or security control, over 18% of the West Bank. Basically, the large Palestinian cities, they share security control with the Israelis over another 22% over Area B. Over Area C, which is 60% of the West Bank, that’s over sole Israeli military and security and political control. So, holding elections, it is a great challenge and a great difficulty. I think the reason why you don’t see a greater international push for Palestinian elections is that they might wind up being content with the leadership that’s there now. You have a Palestinian leadership that wants to see a resolution. You have a Palestinian leadership in the West Bank not engaging in violence against Israeli settlers and the Israeli military. Yet, also, you have a Palestinian Authority, which is pretty much hemmed into a pretty very area. Not unlike Gaza in the 18% of the West Bank that they wind up controlling, keep in mind, the West Bank is 165 different islands of control under the Palestinian Authority. It is completely surrounded by Israel. They have no ability to be able to go into Israel.
Palestinians in the West Bank, they have no ability to go into Jordan across the border, except with Israeli permission. Many of the blockade measures mentioned about Gaza also exist in the West Bank as well. But as much as they can, you would expect the Palestinians would have greater international legitimacy and greater legitimacy with respect to their own people if they were able to have bona fide elections to be able to renew their political leadership. That seems, to me, as a significant issue with respect to human rights and democracy going to the Palestinians. With respect to Hamas, it is worse. They hold no elections. Even though, there is nothing preventing them from holding elections in the Gaza Strip. They are blockaded externally, but do have some control within Gaza. They have some control to hold elections if they wish. It diminishes their ability to be able to claim to speak on behalf of the Palestinian population by not having elections either. To me, those are basic democratic rights; the Palestinians, in soccer, it is an “own goal” by not trying to pursue the establishment of elections and democratic institutions and popular control over their political leaders.
Jacobsen: Other phrases or terms coming to the public, come in more dramatic statements or news, or press releases, etc. In the media, we will see phrases like “terror tunnels,” “Iron Dome.” We will see terms like “rockets.” What is the reality on the ground, for instance, of the efficacy of the Iron Dome for Israel? What is the reality of terror tunnels? Are these rockets coming from Gaza, for instance, being launched at Israel truly rockets in any conventional military sense?
Lynk: Sure, with respect to the rockets, whether or not they’re – and you say, ‘Rockets in a conventional sense,’ certainly, they have the power to damage. A lot of them are being shot into, and this is part of the negligence of this, from Gaza into Israel. Some of them reach Israeli civilian territory. You could argue that these are the places that these are meant or intended to land. If you send military shells or rockets onto a civilian population indiscriminately, that, certainly, is a war crime. I do not have a hesitation using the same standards to say, “Those are wrong. Those should be investigated by the International Criminal Court. They should be tried. If convicted, they should be punished because of that.” We also have to acknowledge that there is an extraordinary asymmetrical relationship militarily, economically, and politically between the Israelis and the Palestinians, more specifically between Israel and Gaza. Whenever damaging rockets can be launched from Gaza and can land in Israel, and have the potential to do harm for Israeli citizens, the Israeli military’s ability, in terms of their possession of advanced state of the art rockets, planes, artillery, tanks, and so on, far outnumbers what the Gazans can wind up doing in return.
We have seen that in the wars in 2008/2009, 2012, and 2014, and the periodic retaliation Israel may launch against Palestinians when rockets come out of there. Their firepower, their ability to cause huge civilian tolls in terms of wounded and dead, and damage and destruction of civilian centers such as homes and organizations and hospitals, is extraordinary in comparison to what the Gazans are capable. We have to keep this in mind with respect to this. Anyone who ends up firing in a disproportionate way at civilians is guilty or likely guilty of a war crime. That’s whether or not you are a Palestinian Hamas Jihad supporter or an Israeli military/political leader conducting that as well.
Jacobsen: This would be the “hugging” of international law. What have we not covered?
Lynk: If you have one more question, I am happy to cover it.
Jacobsen: Who/what would you consider some of the more robust authoritative objective, in as much as that is possible, organizations, or authors, or speakers on the Israeli-Palestinian issue?
Lynk: When I think of civil society organizations that I work with; this is not an exhaustive list. I think extremely highly of B’Tselem and Gisha. I have regard for the work that they wind up doing. On the Palestinian side, I think of Al-Haq. I think of the Palestinian Human Rights Center. I think of Al-Mezan. I think of many others. In Israel, I think of Adalah, which fights for Palestinian-Israeli citizens of Israel to fight for their human rights. The Israel Association for Civil Liberties is an organization whose work I follow and admire internationally. Obviously, Amnesty International and Human Rights Watch do extraordinarily good work with regards to Israel and Palestine. If someone was interested in wanting to explore the issues of human rights and how leading organizations apply those standards to the Israeli-Palestinian conflict, I cannot think of better organizations for exploring their advocacy, and their reporting, then the organizations that I’ve just listed.
Jacobsen: Thank you for the opportunity and your time, Michael.
Lynk: Very well, Scott, thanks very much for this, you’re obviously well, well informed on this. I rarely come across an interviewer as deeply informed, and to have the pleasure to be given such thoughtful and wide-ranging questions as you’ve done. I am really pleased that you’re interviewing people like Richard Falk, John Dugard, among many other people. If I can do 1/10th of the quality of the work that they have done as Special Rapporteurs, I will have this on my tombstone and be very happy. They are extraordinary people. You are aware of the other organizations as well. It is all the people’s work who I end up cheering on. So, I’ll cheer on your work as well.
Jacobsen: Thank you, sir.
Scott Douglas Jacobsen is the Founder of In-Sight: Independent Interview-Based Journal and In-Sight Publishing. He authored/co-authored some e-books, free or low-cost. If you want to contact Scott: Scott.D.Jacobsen@Gmail.com.
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Image Credit: Western University/S. Michael Lynk.