Supreme Court of Israel European Court of Human Rights Kúria of Hungary Federal Court of Justice – Germany Cour de cassation - France Supreme Court of the Republic of Poland Supreme Court of the United States International Court of Justice Supreme Court of Cassation - Italy Fall 2021 No.67 THE INTERNATIONAL ASSOCIATION OF JEWISH LAWYERS AND JURISTS (R.A.) ה א ר ג ו ן ה ב י נ ל א ו מ י ש ל ע ו ר כ י - ד י ן ו מ ש פ ט נ י ם י ה ו ד י ם ( ע ״ ר )
Fall 2021 1
2 No. 67 JUSTICE his issue of JUSTICE goes to press on the eve of November 29, the historic date when the UN General Assembly passed the United Nations Partition Plan for Palestine (Resolution 181(II)). The achievements of the State of Israel since then have been noteworthy in a host of fields. However, the spectre of antisemitism that Israel—and the Jewish People—still face has not been overcome. In this regard, I strive to steer the International Association of Jewish Lawyers and Jurists (IJL) as a primarily litigatory organization, an organization that focuses on the core legal issues facing the Jewish People and the State of Israel internationally. (This is symbolized by the cover of this issue, featuring images of international and supreme courts in different countries.) Noteworthy among our legal concerns is Iran. It is important to provide proof of Iran’s violation of the Genocide Convention. We firmly believe that Iran must be held accountable for state sanctioned incitement to genocide. States parties to the Genocide Convention have a legal responsibility to enforce, prevent and punish such incitement and hold Iran to account. The Legal Center for Combating Antisemitism, headed by Adv. Avraham Yishai, deals with a range of legal issues, all in Europe. These issues include: – Shechita (kosher slaughter). Following the European Court of Justice in Luxembourg ruling that EU member states can legally ban stun-free slaughter of cows, Belgium has ruled on this subject, and a similar ruling has been rendered in Greece. The Center is preparing legal action to challenge these rulings through various channels. –Victims of antisemitic activity. The“Agen Ami”project provides legal assistance to victims of antisemitic activity in various Jewish communities. A pilot is operating in Barcelona, Riga, Moldova (Kishinev), and Leipzig. – Holocaust denial online. The Center has also worked in Germany and Poland on various issues over the past year, including Holocaust denial online; systematic closure of criminal cases initiated by enforcement authorities on grounds of antisemitic events; and protecting freedom of research on the Shoah era. The Center expects to expand its activities and legal responses on these and other subjects in the coming year. Developments in Poland continue to raise concern, the latest manifestation being an antisemitic incident involving Polish nationalists chanting “Death to Jews” on Poland’s Independence Day. Participants at a Kalish gathering also burned a copy of a medieval document that offered Jews protection and rights in Polish lands. I have personally sent a letter of complaint to Zbigniew Ziobro, Minister of Justice and Public Prosecutor General of the Republic of Poland, protesting this and other incidents, with the expectation that legal steps will be taken to punish individuals responsible for these shameful events in accordance with the relevant provisions of Polish law. At the UN Human Rights Council, the IJL continues to raise relevant issues, including the rise of antisemitic incidents around the world, the renewal of age-old antisemitic myths, blood-libels, and conspiracy theories against Jewish people in the context of the COVID-19 global pandemic, as well as blaming the local Jewish population for any escalation that has taken place in the Israeli-Palestinian context. The IJL has also continued to stand against the biased anti-Israel agenda item 7 of the Council. Moreover, as a human rights organization, we deem it paramount to address pressing issues from around the world. At the recent session of the Human Rights Council, our representative, Ido Rosenzweig, addressed the decision of the Taliban regime in Afghanistan to deny secondary education to girls over the age of twelve, and called on the Council to take this matter into its hands. Unfortunately, as we look towards the Council’s sessions in 2022, we cannot expect any major improvement regarding the Council’s approach towards Israel. At the Council’s 70th session (June 2022), the Commission of Inquiry on the events of April-May 2021 will present its initial report. As always, the IJL will President’s Message T Meir Linzen Photo: Ami Erlich
3 Fall 2021 ensure that this will not be a one-sided discussion targeting Israel alone. We continue the legacy of the organization's founders to fight antisemitism on a daily basis, to combat Holocaust denial and gross human rights violations. Regrettably, atrocities still take place in the world today. The IJL will continue to utilize its resources, international status, and prestige to stand against any situation of antisemitism, genocide, crimes against humanity, war crimes and other human rights violations We are continually aware that the law is a very sensitive tool that requires various checks and balances to prevent severe abuses. The IJL holds it to be part of its mandate to preserve and implement such checks and balances, and to ensure that human rights are maintained. Among notable recent IJL events and developments: – The IJL presented an amicus brief to the International Criminal Court arguing that the Court has no jurisdiction to investigate Israel. The President of the Pre-Trial Chamber, Péter Kovaćs from Hungary, in a detailed minority opinion, held likewise, that the Court had no jurisdiction. The IJL has continued to enlist international support for the position that it is a travesty of justice that the ICC investigate the one country in the Middle East that is democratic and has an independent, impartial judiciary. – On May 23, 2021, the IJL held a webinar on the current situation regarding “Operation Guardian of the Walls,” featuring Col. (Ret.) Adv. Daniel Reisner, IJLVice President, and Col. (Ret.) Adv. Pnina Sharvit Baruch, IJL Vice President and Head of the Program on Law and National Security (INSS). – In the context of the Israel Ministry of Foreign Affairs’ 7th Global Forum for Combatting Antisemitism, held in Jerusalem, IJL organized a legal working group on “Legislation Is Not Enough – Improving Legal Action,” which took place on July 14, 2021. The objective of this session was to offer insights and conclusions, and to suggest best practices and action items that could be implemented as strategies for combating antisemitism. An edited version of the presentations is featured in this issue of JUSTICE. I take this opportunity to express appreciation and commend the JUSTICE Academic Advisory Committee, and its Special Advisors credited in the journal. These experts, both those who have served over the years and those who have joined the Committee recently, volunteer their expertise, time, and experience in the various legal fields we explore and analyze in our publication. November 2021, Kislev 5782
4 No. 67 JUSTICE e are witnessing an important historical inflection moment, reflecting not only the global COVID-19 pandemic, but a global political pandemic characterized by a resurgent global authoritarianism, the backsliding of democracies, the assault on human rights, and political prisoners as a looking glass – the whole underpinned by yet another pandemic, the pandemic of impunity. Accordingly, I would like to share four case studies of this political pandemic – and the pandemic of impunity – as well as the human rights advocacy that can address and redress it, and which can help secure justice for the victims and accountability for the human rights violators. This is also where the International Association of Jewish Lawyers and Jurists (IJL) can play an important role in this effort. I. Case Study: Xi Jinping’s China The first case study is that of Xi Jinping’s China – and I use that term to distinguish it from the people and publics of China who are otherwise the targets of Xi Jinping’s massive domestic oppression – which represents today the most serious assault on the rulesbased international legal order; and which includes, increasingly under the cover of the COVID-19 pandemic, the targeting of what Xi Jinping has called “the five poisons”: the mass atrocities against the Uyghurs; the frontal assaults not only on the democracy movement in Hong Kong but on democracy itself; the persecution and prosecution of the Falun Gong singled out for “eradication”; the ongoing repression of Tibet; and the threatening of Taiwan. There is more. What is not so well known is that China jails more journalists than any other country in the world, as well as human rights defenders and the lawyers who would represent them. It was this culture of suppressing information, and jailing dissidents, doctors, and lawyers and human rights defenders, that covered up and thereby precipitated the spread of the coronavirus.1 Moreover, this was accompanied by a parallel global disinformation and penetration campaign, which the Canadian Parliamentary Committee on National Intelligence said constituted a threat not only to the national security of Canada – in terms of Xi Jinping’s penetration into Canada – but indeed a threat to our democracy. However, it was the mass atrocities against the Uyghurs that the Canadian Foreign Affairs Sub-Committee on Human Rights – and later the Canadian Parliament – said were acts constitutive of genocide that represent the most serious and threatening assault on the rulesbased international order. I testified before this committee in July 2020, wherein I first shared evidence that these mass atrocities were acts constitutive of genocide. Just before I was to testify, I witnessed evocative and chilling images of Uyghurs blindfolded, shackled, and with their heads shaven, boarding trains to concentration camps. I make no analogies to the Holocaust – not even when speaking of the genocide of the Uyghurs – but it is impossible to ignore these evocative, chilling images. I then shared with the Foreign Affairs Sub-Committee the evidence that these mass atrocities were acts constitutive of genocide under the 1948 Genocide Convention and which included: the mass incarceration of over one million Uyghurs in concentration camps – The Global Political Pandemic, and the Pandemic of Impunity: Political Prisoners as a Looking Glass* W IrwinCotler * This article is an updated (Aug. 2021) and expanded version of Prof. Cotler's keynote presentation at the IJL's 17th Congress, December 6, 2020. 1. Irwin Cotler and Judith Abitan,“The Chinese Communist Party’s culture of corruption and repression has cost lives around the world,”THE GLOBE AND MAIL, Apr. 14, 2020, available at https://www.theglobeandmail.com/opinion/ article-the-chinese-communist-partys-culture-ofcorruption-and-repression-has/
5 Fall 2021 enslaved, tortured, abused, raped, and murdered; the mass sterilization of Uyghur women, one of the coercive population control techniques that have drastically reduced the Uyghur population; the forced separation of 500,000 Uyghur children from their families; the massive assaults on Uyghur religion, culture, identity, language, and belief, which has included the destruction of thousands of mosques; and state-sanctioned incitement to hate and genocide targeting the Uyghurs, characterizing them as “cancerous tumors” that must be“eradicated”and worse. The Raoul Wallenberg Centre for Human Rights (RWCHR), in cooperation with the Newsline Institute for Strategy and Policy, published in March 2021 a report titled “The Uyghur Genocide: An Examination into China’s Breaches of the 1948 Genocide Convention.”2 This is the first comprehensive evidence-based report, endorsed by over 30 leading genocide and international law scholars, documenting in detail the five acts constitutive of genocide under the 1948 Genocide Convention.Yonah Diamond, Legal Advisor at RWCHR, and myself, recently published a complementary article in Project Syndicate,3 further elaborating on these unprecedented findings of fact and conclusions of law. The determination that these acts targeting the Uyghurs constitute genocide, a determination arrived at by both the Trump and Biden Administrations – a matter of rare agreement – has been similarly followed by other parliaments such as the UK and Lithuanian parliaments, as well as leading UK lawyers (who published an important report on the matter4). All this brings to memory the warnings of Nobel Peace Laureate and Holocaust survivor Professor Elie Wiesel, who cautioned us of the danger of silence in the face of evil; of the danger of indifference and inaction in the face of mass atrocity and genocide, where, as he put it, “indifference always means coming down on the side of the victimizer, never on the side of the victim.” Indeed, what makes the Holocaust – and the genocides that followed – so unspeakable, were not only the horrors of the Holocaust and the genocides themselves, but the fact that they were preventable. Nobody can say, for example, regarding the genocide of the Tutsis in Rwanda, where 10,000 Tutsis were murdered every day for three months while the UN Security Council dithered and delayed, that we did not know. We knew, but we did not act. Just like the genocide in Darfur, we knew but we did not act. And now, regarding the Uyghurs, we know, and still, we are not acting. The case and causes of two imprisoned political prisoners in China, Dr. Wang Bingzhang and Huseyin Celil, are a looking glass into the ongoing massive repression in China, and the culture of impunity that underpins it. Dr. Wang Bingzhang, a Chinese doctor, received his Ph.D. in medicine at McGill University in 1982. His immediate family, including his siblings, wife, and children, are all Canadian citizens and residents. Upon graduation from McGill, Dr. Wang Bingzhang concluded that while it would be good for him to practice medicine, his struggle for democracy in China was even more important. Accordingly, he founded the China Overseas Democracy Movement. In 2002, while Wang was travelling inVietnam, he was illegally abducted by the Chinese authorities, brought back to China, and convicted on the trumped-up charges of“terrorism”and“espionage”after a closed trial, without legal representation, that only lasted half a day. He was then sentenced to life imprisonment in solitary confinement. During his nineteen years in detention, he has suffered a series of debilitating strokes. His physical and mental health have deteriorated rapidly, and he has had no access to the necessary medical and psychological care. As a result of a decision made by the UN Working Group on Arbitrary Detention, where my argument regarding the illegality of Dr. Wang Bingzhang’s treatment was heard in 2002, I have been acting as Dr. Wang Bingzhang’s international legal counsel and I have called for his release. Leading international human rights organizations such as Human Rights Watch, Amnesty International, and the RWCHR, have joined this call. 2. Newslines Institute for Strategy and Policy and Raoul Wallenberg Centre for Human Rights, “The Uyghur Genocide: An Examination of China’s Breaches of the 1948 Genocide Convention,”NEWSLINES INSTITUTE, March 2021, available at https://newlinesinstitute.org/wpcontent/uploads/Chinas-Breaches-of-the-GC3-2.pdf 3. Irwin Cotler and Yonah Diamond, “China’s Uyghur Genocide is Undeniable,”PROJECT SYNDICATE, June 3, 2021, available at https://www2.project-syndicate.org/ commentary/evidence-of-china-uyghur-genocide-byirwin-cotler-and-yonah-diamond-2021-06 4. Jeffrey D. Sachs and William Schabas, “The Xinjiang Genocide Allegations Are Unjustified,”PROJECT SYNDICATE, Apr. 20, 2021, available at https://www.project-syndicate. org/commentary/biden-should-withdraw-unjustifiedxinjiang-genocide-allegation-by-jeffrey-d-sachs-andwilliam-schabas-2021-04
6 No. 67 JUSTICE Likewise, both the Canadian Parliament and the U.S. Congress have passed resolutions calling on China to release Dr. Wang. A bipartisan group of former Canadian Cabinet Ministers, which I joined as a former Minister of Justice and Attorney General of Canada, recently sent an open letter to the Chinese foreign minister decrying Wang’s solitary confinement and his three debilitating strokes. We have warned that he has a heightened risk of contracting COVID-19 and protested his being denied access to family members and legal counsel. Chinese Communist Party authorities have continued to harass and intimidate Wang’s Canadian family members. For example, after over a decade of visa requests, his daughter Ti-Anna was finally issued a visa in 2019, only to be detained upon her arrival at the Beijing airport and deported back to Canada without being permitted to see her ailing father. The second political prisoner in China, Huseyin Celil, is a Canadian citizen and Uyghur activist who has been held in a Chinese prison for fourteen years. Similar to the experience of Dr. Wang, Celil was arrested in 2006 during a trip with his family to Uzbekistan and brought back to China in 2007. He has been held at a secret location and denied access to legal counsel, family, and Canadian officials. Celil has also spent much of his time in solitary confinement and is suffering from poor health. His case and cause have not been sufficiently examined by Canadian authorities. Indeed, in February 2020, the Canadian ambassador to China mistakenly told a parliamentary committee that Celil was not a Canadian citizen, and that Canadian officials were therefore not obliged to help him. The targeted abductions, arbitrary detentions, torture in detention, false and trumped-up charges, and culture of impunity continue as I write. In 2018, Canadians Michael Spavor and Michael Kovrig were abducted, arrested, tortured in detention, and currently face spurious espionage charges. Their abductions and arrests occurred following the Canadian Government’s arrest of Meng Wanzhou (December 2018), an executive of the Chinese company Huawei, pursuant to a U.S.- Canada Extradition Treaty. However, while Meg Wanzhou has been free on bail, provided with the best legal counsel, and able to challenge her extradition before Canadian courts, the targeted abduction of the“two Michaels”has been an exercise in hostage diplomacy by the Chinese Communist Party. These two case studies are not isolated ones, instead demonstrating the pattern of oppression and criminalization of fundamental freedoms that has become characteristic of resurgent global authoritarianism, and the impunity that underpins it. II. Case Study: Khomeini’s Iran The second case study is the supreme leader Ayatolla Ali Khomeini’s Iran. Close to three years ago, the RWCHR published a report titled,“Realizing Rights Over Repression in Iran,” documenting and detailing the assault by the Iranian regime, where they target leaders of all civil society groups in Iran: assaults on women, journalists, environmentalists, lawyers, trade unionists, religious and ethnic minorities, students, peace protesters, dual nationals, and the like. Overall, this reflects a widespread and systematic assault on human rights, and amounts to the criminalization of innocence, and the criminalization of fundamental freedoms. Since the publication of this report, the assaults on each of these civil society groups has intensified, together with increasing numbers of arrests, detentions, torture, convictions, and imprisonment in COVID-19 infested prisons. The women’s movement in Iran is a looking glass into these patterns of massive repression, which now include the disturbing trend of banishing these women human rights defenders to exile in remote prisons, far from public scrutiny, and where they are at risk of infection from COVID-19 or worse. This was a subject of a recent RWCHR petition to the UNWorking Group on Women’s Rights. The banishing of women rights defenders to remote prisons, far removed from their place of residence, also inflicts further psychological suffering on their families, by depriving them of their ability to visit their loved ones. While Evin Prison may be the primary site for detaining political prisoners in Iran, women rights defenders are increasingly being sent to prisons with even harsher conditions. Qarchak Prison, sometimes described as “the end of the world,” is of particular concern, as it is infamously known for having the worst conditions in Iran. At Qarchak Prison, over 1,000 women are confined to a former livestock warehouse in tenmeter, windowless cells with at least twelve inmates per cell. The prison does not have proper ventilation, clean air, drinkable water, or adequate food or medicine. There are constant fires burning in the fields surrounding the prisoners, and the prison itself has a poorly installed sewage system. Prisoners constantly have trouble breathing. Moreover, these women political prisoners are held in the same cells as inmates convicted of violent crimes. All that has been mentioned above is in violation of both Iranian and international law.
7 Fall 2021 Nasrin Sotoudeh, for whom I – along with the RWCHR – have been acting as international legal counsel, is an iconic Iranian woman human rights lawyer who embodies the struggle for human rights in Iran, and whose persecution and prosecution is a looking glass into the assault on human rights in Iran. Nasrin Sotoudeh’s situation has deteriorated ever since her first imprisonment ten years ago, when I first began to represent her while she was a Member of Parliament. Since then, she has been repeatedly arrested for doing nothing other than fighting on behalf of the rights of women, for the rights of juveniles destined for execution, for the rights of journalists whose expression is silenced, for the rights of minorities like the Bahá’í targeted for persecution, for lawyers imprisoned for defending political prisoners, and on behalf of other political prisoners, until some three years ago, when she once again became a political prisoner herself. She was convicted and sentenced to 38 years in prison and 148 lashes – a virtual death sentence for a woman in her late 50s. In August 2020, Nasrin Sotoudeh launched a hunger strike, not on her own behalf, but on behalf of other political prisoners at risk of catching COVID-19 in the Iranian prisons. Suffering from heart complications and respiratory disease, she was transferred from Evin Prison to a hospital for medical treatment, but she was abused, detained, and shockingly returned to prison having been denied treatment. The UN Special Experts collectively called this action“unfathomable.” During her extensive time in prison, our advocacy was supported by Prime Minister Trudeau of Canada, who condemned her imprisonment and called for her release, as did President Macron of France, the then Presidential candidate, and now U.S. President Joseph Biden, the European Union, and others. She was then transferred from Evin Prison not to a hospital to receive urgent medical treatment, but rather to the infamous Qarchak Prison, a vermin-infested, almost uninhabitable prison. As a result of sustained advocacy, in November 2020, Nasrin was released on furlough, but after one month, she was sent back to prison. In an open letter to the Iranian leadership5 signed by the International Bar Association, by US Pen, by the Center for Human Rights in Iran, and by the RWCHR – we called for the quashing of her conviction and for her release. In addition, we stated that every day of her continuing imprisonment is an assault on the Iranian Islamic constitution, as well as on Iran’s international treaty obligations; and that only her release would demonstrate Iranian fidelity to the rule of law, to the Iranian Constitution, and to Iran’s own international treaty obligations. As I write, Nasrin Sotoudeh has been released on furlough for medical treatment, once again on the grounds of sustained advocacy, but is still threatened with return to prison. III. Case Study: Maduro’s Venezuela The third case study is President Maduro’sVenezuela. Some four years ago, I was appointed a member of a Panel of Independent Legal Experts by the Organization of American States, along with Justices Santiago Canton of Argentina and Manuel E. Ventura Robles of Costa Rica, to investigate whether there were reasonable grounds to believe that crimes against humanity are being committed in Venezuela. In May 2018, after a comprehensive inquiry, and after analyzing documentary evidence and witness testimony, we concluded that there exist reasonable grounds to believe that seven major crimes against humanity were being committed in Venezuela, including multiple murders and extrajudicial executions; some 12,000 cases of arbitrary detention and deprivation of liberty; some of the worst cases of torture that we have ever seen; wanton disappearances; political persecutions; sexual violence and rape in detention; and perhaps the worst of the crimes against humanity – state orchestrated humanitarian suffering – the weaponization of food and medicine targeting those either in the political opposition or believed to be in the opposition. During our investigation, we held public hearings in Washington, and heard astounding evidence with respect to assaults on the rule of law, on the independence of the judiciary and on the democratic opposition. Here, I present a looking glass into these assaults through the cases of two political prisoners, Leopoldo López and Judge Maria Lordes Afiuni. I have represented the leader of the democratic opposition, Leopoldo Lopez, who had been imprisoned on trumped up charges, since 2014. What we heard in the testimony before us was compelling, revealing, and, in fact, indicting, not of Lopez, but of the Maduro regime, both expressly and specifically. We heard testaments 5. International Bar Association, Pen America, Center for Human Rights in Iran, and Raoul Wallenberg Centre for Human Rights,“Open Letter to His Excellency, Ayatollah Ali Hosseini Khamenei, Supreme Leader of the Islamic Republic of Iran,”IBANET, Dec. 2, 2020, available at https:// www.ibanet.org/MediaHandler?id=92722B13-8E65-4441BF8A-8104FE349DF6
8 No. 67 JUSTICE from Judge Renata Tovar, who had escaped from Venezuela and appeared before our hearings in Washington, confirming that she was ordered to issue a false arrest warrant against Leopoldo López. Were she to refuse, she declared, she would have had to fear ending up with what was characterized to her by the Maduro regime as the “Afiuni effect,” referring to the imprisonment and torture of Venezuelan Judge Maria Lordes Afiuni for doing nothing other than acquitting a political prisoner. As a result of this acquittal, Judge Afiuni was arrested eleven years ago, imprisoned and tortured in detention, where she has been languishing in prison ever since. What’s more, recently, she was once again convicted and sentenced to yet another five years in prison, under the false and invented charge of “spiritual corruption.” I have also been acting on behalf of Judge Afiuni, specifically in cases where the “Afiuni effect”has been used and abused to intimidate other judges. We likewise heard from the Special Prosecutor in López’s case, Franklin Nieves, who had also escaped fromVenezuela. Mr. Nieves, who came before our inquiry, testified that he too had been ordered to issue false and trumped-up charges against Leopoldo López. We heard from witnesses who admitted that they were tortured into false confessions against Leopoldo López. All this testimony demonstrated the massive assault on the rule of law, on the independence of the judiciary, and on the democratic opposition inVenezuela. Six months after we tendered our report, the Foreign Minister of Canada at the time, Chrystia Freeland, led seven states in making the first ever collective Referral by a State Party, namelyVenezuela, to the International Criminal Court. To date, the ICC Special Prosecutor has yet to open an investigation into crimes against humanity in Venezuela, notwithstanding the fact that the UN Commission on Human Rights issued its own set of reports that corroborated our own reports regarding crimes against humanity inVenezuela. This was followed by the Organization of American States, through its newly appointed Special Rapporteur on the Responsibility to Protect, Jared Genser, who issued a report that not only corroborated our OAS Report, and the reports of the UN Commission on Human Rights, but in fact, condemned the Special Prosecutor's inaction in not opening an investigation regarding Venezuela. The Venezuelan case study should be contrasted with that of the Special Prosecutor, initiating an investigation into the“Situation in Palestine.” Israel, unlikeVenezuela, is not a State Party to the ICC, and Palestine is not yet a state (though I otherwise support the Palestinian right to self-determination and statehood); nor does Palestine possess the attributes for statehood under international law. Likewise, the principles of “complementarity”and the “gravity of the offense” should also preclude any jurisdiction by the ICC in this case. In summary, the Special Prosecutor did not open an investigation in a case whereVenezuela is a State Party and the evidence is compelling of crimes against humanity, but rather in the case of the “Situation of Palestine” regarding Israel, which is not a State Party, impugning the independence, impartiality, and integrity of the ICC. I say this not only as someone who has been a longtime supporter of the ICC, but as someone who, as a parliamentarian, convened the first ever Parliamentary Consultative Assembly for an International Criminal Court in 2002; who tabled legislation adopted by the Canadian Parliament domesticating the Rome Statute in Canadian law, thereby authorizing Canadian exercise of universal jurisdiction; and who has been supportive of the ICC as a successor international tribunal of final resort after Nuremberg, but not a tribunal of original jurisdiction when such jurisdiction is not even present as in the case of the “Situation in Palestine.” Indeed, I have been consistently disappointed of late in what appears to be discriminatory standards that have been exemplified in the inaction in theVenezuelan situation – where there was clear jurisdiction – and the action in the “Situation in Palestine” – where there was no jurisdiction. IV. Case Study: Muhammad Bin Salman’s Saudi Arabia The fourth and final case study is that of Crown Prince of Saudi Arabia Muhammad bin Salman’s (MBS) Saudi Arabia, with the imprisoned Saudi blogger, Raif Badawi, as a looking glass into the assault on human rights and the pandemic of impunity, which underpins it. Badawi was imprisoned nine years ago for saying what the Crown Prince Muhammad bin Salman himself has been advocating for the last four years: namely, calling for a “more open Saudi Arabia,”and a“more moderate Islam.” But not only has Badawi been imprisoned – and is now in his ninth year of imprisonment – but so has his sister Samar Badawi, for doing nothing other than calling for the right to drive, a reform that in fact was implemented by the Crown Prince himself; while his lawyer Waleed Abulkhair was imprisoned for fifteen years for doing nothing other than acting as Raif Badawi’s
9 Fall 2021 lawyer, as authorized by Saudi Arabian law. I have been acting as legal counsel, along with the RWCHR, for Raif Badawi and Waleed Abulkhair, and we have been making ongoing representations to Saudi Arabian authorities seeking their release, in a petition anchored in both Saudi Arabian law and Islamic law. Three years ago, Chrystia Freeland, then Canadian Foreign Minister, called for the release of the two Badawis. The Saudi authorities erupted in fury, expelling the Canadian Ambassador from Saudi Arabia, pulling out the Saudi Ambassador from Canada, suspending all trade and investment with Canada, and recalling 15,000 Saudi students from Canada – in effect, a selfinflicted wound. But the importance of this outrageous set of Saudi decisions is that not a single democracy came to Canada’s defense. Two months later, Muhammad bin Salman’s Saudi Arabia, feeling duly enabled, took us down the road to the brutal assassination of Saudi journalist Jamal Khashoggi in the Saudi consulate in Istanbul. The assassination did in fact sound the alarm – for a period – and there was a mobilization of concern with respect to what was happening in Saudi Arabia, including unanimous resolutions calling for Badawi’s release adopted by both the U.S. House of Representatives and the Senate, the European Parliament, and the Canadian Parliament. But that protest soon abated, and Saudi Arabia, as part of the culture of impunity, was rewarded with the Chair of the G20, where during its meetings, no mention was made of either the imprisoned women human rights defenders, or of the case and causes of Raif Badawi and Waleed Abulkhair. I would like to think that maybe there exists a role for Israel and the IJL in helping to fight the case in Saudi Arabia, given the meetings between Israeli leaders and MBS; and in consideration of the fact that President Biden has said that Saudi Arabia has been behaving as a “pariah state” in matters of human rights – and will be held accountable. Israel, therefore, through quiet diplomacy, might recommend to MBS that it would be in his self-interest – in the interest of Saudi Arabia’s relationships with the Biden administration – to free the women human rights defenders, and to free Raif Badawi and his lawyer. This quiet diplomacy could well work to Israel’s benefit. Conclusion I believe that the IJL has a role to play in combating the global political pandemic, the assault on human rights, and the pandemic of impunity, including: First, unmasking and exposing the culture of criminality and corruption, and the impunity that has underpinned it among the resurgent global authoritarians. This is in the spirit of Andrei Sakharov, the father of the modern dissident movement, who would often speak to me of “the importance of the mobilization of shame against the human rights violators.” Second, the IJL might consider taking up the case and cause of the Uyghurs, the target of major assault on the rules-based international order, and thereby take up case and cause in a situation where we are witnessing acts constitutive of genocide. Third, the IJL might take up the case and cause of Iranian human rights lawyer Nasrin Sotoudeh, the embodiment of the struggle for human rights in Iran. Although Israel has often spoken of the Iranian four-fold threat – the nuclear, terrorist, regional hegemonic, and the incitement threats – it has not spoken sufficiently of the massive domestic repression of human rights in Iran, and the transnational threats and repression of human rights. I appreciate that Iran’s enmity toward Israel may even invite a negative reaction from the Iranian regime itself should Israel speak up on behalf of Nasrin Sotoudeh’s case and cause as a looking glass into the assault on human rights in Iran; but taking up her case can help unmask and expose the Iranian regime’s assault on its own constitution, rule of law, and its own treaty obligations, and thereby underpin, and help expose, the compelling case regarding the dangerous four-fold Iranian threat. Fourth, the IJL might also consider taking up the cases of the imprisoned Venezuelan Judge Maria Lourdes Afiuni and the imprisoned Saudi blogger Raif Badawi and his lawyer Waleed Abulkhair for reasons set forth above. Finally, I would be remiss if I did not mention, briefly, two other concerns. One is the repatriation of the bodies of the fallen soldiers Hadar Goldin and Oron Shaul, and the two missing civilians also being held by Hamas, whose refusal to provide any information, let alone repatriate the remains of the fallen soldiers, is a standing assault on foundational principles of international human rights and humanitarian law. These include the right of the families to information and to truth, the right to repatriation of the remains of the fallen soldiers, the right to protect the dignity of the remains and arrange for proper burial under Jewish law, and the right to accountability for these breaches of international human rights and humanitarian law. Indeed, the international
10 No. 67 JUSTICE community, as trustees of international human rights law, must be called to account for these breaches and avoid becoming a bystander community to these ongoing violations of international humanitarian and criminal law. Second, Israel should appoint a Special Envoy to combat antisemitism, so that it can become part of the community of nations that have themselves designated such Special Envoys, and thereby make appropriate recommendations. In conclusion, we must see it as our individual and collective responsibility to speak on behalf of those who cannot be heard, to bear witness on behalf of those who cannot testify, to act on behalf of those who are putting not only their livelihood but their lives on the line. This is what the pursuit of justice is all about. This is what “tzedek, tzedek tirdof” is all about. This is the mandate and mission so compellingly undertaken by the IJL. n Irwin Cotler is an Emeritus Professor of Law at McGill University, International Chair of the Raoul Wallenberg Center for Human Rights, former Minister of Justice and AttorneyGeneral of Canada, and International Legal Counsel to Prisoners of Conscience. He has also been recently appointed as Canada’s first ever Special Envoy for Preserving Holocaust Remembrance and Combatting Antisemitism.
11 Fall 2021 he Boycott, Divestment, Sanctions (BDS) movement’s placards held aloft outside shopfronts and on demonstrations are a visible reminder of the ongoing campaign against the State of Israel, but the real activity has long moved off the streets and into the wholesale financial markets. In this arena, activists target those who manage money to persuade them to divert capital – measured in the millions of dollars – away from companies linked to the economy of the State of Israel. In July 2021, Ben & Jerry’s announced that it will no longer sell its products in what it termed“the Occupied Palestinian Territory.” Ben & Jerry’s, now the enfant terrible of socially responsible business, occupies the space where the real economy and the financial markets meet. Ice cream might be the end-product, but it is the shares of its ultimate parent, Unilever, that are traded in the financial markets. In this article, I take stock and consider what the road ahead might look like. Introduction Non-financial environmental, social, and corporate governance (ESG) issues are embedded in the psyche of institutional investors like never before. Undoubtedly, such considerations are a badge of highly developed and responsible financial markets. The BDS movement seeks to hang on to the coattails of this phenomenon. Activists frame the Israeli-Palestinian dispute in human rights terms, intending to strike a chord with those applying ESG policies to their investment portfolios. We must see this for what it is. The interests of the BDS movement are privileged over pensioners and other end-investors, whose money is ultimately used to weaponize a political agenda amounting to nothing more than old-fashioned maximalism. BDS activists view ESG policies as affording them the opportunity to pursue this agenda through financial intermediaries, who become nothing more than hapless foot soldiers. Far from protecting the Palestinian population, BDS campaigns are indifferent to the risk of collateral damage. Their campaigns put at risk the livelihoods of Palestinian workers employed by the companies they target.1 “Weaponize,”“foot soldiers,”and“collateral damage” are not terms that should be used lightly. They are terms more commonly associated with military intervention. The irony is that scholars point to nonmilitary measures to defend human rights as generally being more effective than military intervention.2 Yet this self-styled “civil society”movement continues to interpose itself in a way that promotes division, resembling all the bluntness and absence of foresight that often are the hallmarks of military intervention. As a major financial services economy, it is no surprise that much BDS activity in the financial markets has a UK nexus. It is often assumed that the law in England and Wales – unconstrained by comprehensive antiboycott legislation – has created the right conditions for BDS to flourish in the financial markets. Although there is some truth to this, a basic regression analysis reveals that in many cases, the cause is an inadvertent or purposeful misunderstanding of the legal position, or a failure to enforce regulatory standards or pursue available remedies. The remainder of this article takes English Law and BDS: Taking Stock T DanielA. Harris 1. In Judea and Samaria, thousands of Palestinians employed by Israeli businesses receive average salaries far higher than average salaries paid by Palestinian employers. The employment of Palestinians in Israeli businesses in Judea and Samaria also promotes peace and reconciliation. See, for example, Mohammed S. Dajani Daoudi, Ali Qleibo, Khaled AbuToameh, Nabil Basherat, Nadia Aloush, Rami Levy, Daniel Birnbaum, Dan Diker, Danny Tirza and Pinhas Inbari, “Defeating Denormalization: Shared Palestinian and Israeli Perspectives on a New Path to Peace,”JERUSALEM CENTER FOR PUBLIC AFFAIRS, available at http://jcpa.org/pdf/Defeating_Denormalization_Final_22_ january.pdf 2. See, for example, the op-ed: Stefano Recchia,“Afghanistan: What Biden's critics get wrong, and the debt owed Afghan refugees,”THE HILL, Aug. 26, 2021, available at https:// thehi l l .com/opinion/national-security/569530afghanistan-what-bidens-critics-get-wrong-and-thedebt-owed-afghan. Prof. Recchia states, “forcible democracy promotion in deeply divided societies won’t succeed.”
12 No. 67 JUSTICE stock before considering the road ahead, as well as the lessons that may feed into a future legislative response. Beneficiary Preferences For trustees of private sector occupational pension schemes, and for local government pension scheme (LGPS) authorities,3 the threshold question is whether an investment decision taken in the pursuit of beneficiaries’ objectives involves matters that are financially material to that decision. The decision-making process should always incorporate any matters which the trustee has concluded — or, if it has properly discharged its duties and obligations, ought to have concluded — are financially material. In contrast, where the matters are not financially material, the scope for trustees to take account of them is more limited. In the absence of an explicit mandate, the trustee must overcome a two-part test. The Law Commission Report entitled “Fiduciary Duties of Investment Intermediaries”4 expressed it thus: “In general, non-financial factors may only be taken into account if two tests are met: (1) trustees should have good reason to think that scheme members would share the concern; and (2) the decision should not involve a risk of significant financial detriment to the fund.”5 The first limb of the test is often assumed by BDSsupporting trustees to be a low bar in circumstances where they have ESG policies that have been disclosed to beneficiaries. Often, however, this assumption is misplaced. Unless the policy is explicit and detailed on this topic, it is doubtful whether a fiduciary could make the jump and conclude that beneficiaries share its views on BDS, simply based on ESG policies that are often “high level and unilluminating.”6 Such interpretative gymnastics would indicate a desire to stretch the limits of what is rational or logical, perhaps in order for a trustee to apply the trust property to make its own moral statement.7 A legal challenge to those trustees making such a jump is surely only a matter of time. Tobacco, for example, illustrates this point. In the world of socially responsible investment, a tobacco company, for obvious reasons, is often excluded from investment portfolios.Yet if a tobacco company repurposes one of its research and development subsidiaries for COVID-19 research,8 beneficiaries are more inclined to adjust their thinking, at least relative to other tobacco companies. Those boycotting the tobacco company are immediately schooled in how things are rarely black and white. In the circumstances of the Israeli-Palestinian dispute, where the underlying factual and legal matrix is so complex that politics tends to fill the inevitable knowledge gap, the situation does not lend itself to a consensus in the way that pollution or pay-day lending might. The divisive nature of the Israeli-Palestinian dispute is an unconvincing candidate for any consensus between beneficiaries. Where the issue is whether to support a highly political and partisan policy, the possibility of a consensus is surely further reduced. When it involves a person’s nest egg, that consensus is even more remote. Even if there appears to be a consensus, a trustee will be at risk of personal liability if it wilfully turns a blind eye to obvious red flags indicating that it has, in fact, been manufactured. On the subject of extracting beneficiary preferences, albeit nominally on questions of sustainability, the Principles for Responsible Investment (PRI)9 has recommended that fiduciaries 3. LGPS authorities are not strictly trustees but have been described as “quasi-trustees” with similar duties to trustees: R (Palestine Solidarity Campaign Ltd) v. Secretary of State  UKSC 16 at ,  and . 4. Law Commission, “Fiduciary Duties of Investment Intermediaries,” 2014 (Law Com No 350), available at http://www.lawcom.gov.uk/app/uploads/2015/03/lc350_ fiduciary_duties.pdf 5. Ibid., para. 6.34. 6. Guy Opperman MP’s forward to the DWP Consultation on the“Consideration of social risks and opportunities by occupational pension schemes,” March 24, 2021, available at https://www.gov.uk/government/ consultations/consideration-of-social-risks-andopportunities-by-occupational-pension-schemes/ consideration-of-social-risks-and-opportunities-byoccupational-pension-schemes#fn:15 7. Trustees must not use property held by them for investment purposes as a means of making moral statements: Harries v. Church Commissioners  1 WLR 1241. The judicial direction of travel appears to be to imply a test of rationality. See, for example, Braganza v. BP Shipping Ltd  UKSC 17, albeit that was a case which involved a contract rather than a trust arrangement. 8. See British AmericanTobacco,“BAT working on potential COVID-19 vaccine through US bio-tech subsidiary,”Apr. 1, 2020, available at https://www.bat.com/group/sites/ UK__9D9KCY.nsf/vwPagesWebLive/DOBN8QNL# . It is somewhat unfortunate that the name is abbreviated to “BAT” given the presumed origin of COVID-19, but the point still stands. 9. Principles for Responsible Investment, the leading proponent of responsible investment, which boasts not one but two UN bodies as partners.
13 Fall 2021 should “Avoid questions that begin with a statement indicating a pre-existing position: this can bias the beneficiary’s response.” 10 Suppose, then, that a trade union, with no financial interest in a pension fund – just in terms of its political position – believes the pension scheme should divest from a stock on BDS grounds. Rather than lobby the pension fund’s trustee or scheme administrator with whom it has no relationship, the union issues a“guide” for its many millions of members, some of whom are also beneficiaries in the LGPS. The guide is entitled “Palestine: is your pension fund invested in the occupation?”11 The union makes the case to its members that they should communicate to their pension boards or scheme administrators their preference for divestment from certain stocks on human rights grounds. It feeds them a one-sided narrative. It even provides them with a pro forma letter to sign and send to the pension board or scheme administrator. The union takes care to disclaim responsibility and inform members that it is not their investment advisor – but the reality is very different. The union is in a position of influence. The member, by virtue of the union looking out for his or her employment rights, will have a high degree of trust and confidence in what the union communicates. When a fiduciary is on notice that a beneficiary’s preference simply adopts the wording of the model letter attached to a guide, and that the entire guide is premised on a leading question, the PRI’s cautionary advice surely applies. In such circumstances, the beneficiaries are arguably little more than proxies. The trustee is really in receipt of no more than a singular view of the union, a non-beneficiary. Even if a consensus across beneficiaries is detectable, the fiduciary must consider whether the pursuit of BDS (however the fiduciary may characterize it) is in the best interests of the fund. As the PRI has said,“Trustees and relevant parties should not take beneficiary preferences as instruction, but rather as key input.…”12 This process involves a duty to reach the decision with due skill, care, and diligence.13 In practical terms, the trustee must give proper weight to relevant considerations, including in this case the legal position, and discount irrelevant considerations. An honest appraisal of most investment management firms will reveal that their businesses pre-date ESG considerations. They are organized to measure and manage financial risk. The integration of non-financial ESG considerations into the investment management process has made fiduciaries heavily reliant on information from third-party ESG score providers and ESG exclusion list compilers. The marketplace is crowded with such providers, some of which are (or are lobbied or even influenced by) BDS activists. For example, the database of business enterprises published by the UN Office of the High Commissioner for Human Rights (OHCHR) on February 12, 2020 is increasingly cited in divestment and exclusion decisions. The format of a list is highly calculated: it is easily and cheaply operationalized by investment managers. Where a disposal is not expected to have an impact on overall portfolio risk or performance, the fiduciary has little incentive to look behind the blacklist to test its veracity. Those who may be inclined to do so soon discover that the lobbyists behind it included the pro-BDS NGOs Human Rights Watch, Amnesty International, Who Profits, and Al-Haq.14 The database sidesteps the highly involved legal and factual analysis required here, including making a seamless leap from the acts of a state to the acts of nonstate enterprises. The decision of the UK Supreme Court in DPP v. Richardson15 illustrates how an evidential link between a company and the State of Israel cannot be readily drawn. The database simply reframes and distils the entire analysis into the nebulous catchphrase“human rights concerns”which – to the unsuspecting – readily invites the leap to “human rights breaches.”The mere mention of “human rights” is calculated to marry-up with the boilerplate language of ESG policies, despite the suggestive assertions being unsupported by legal analysis or sound empirical research. 10. “Understanding and Aligning with Beneficiaries’ Sustainability Preferences,” PRINCIPLES FOR RESPONSIBLE INVESTMENT, Apr. 21, 2021, p.14, available at https://www. unpri.org/strategy-policy-and-strategic-asset-allocation/ understanding-and-aligning-with-beneficiariessustainability-preferences/7497.article 11. “Palestine: Is your pension invested in the occupation?” UNISON, Jan. 17, 2021, available at https://www.unison. org.uk/news/article/2021/01/palestine-pension-investedoccupation/ 12. Supra note 10, p.17. 13. The UK Financial Services Authority imposes the same standard on firms it regulates. 14. “UN BDS Blacklist,”NGO MONITOR, available at https:// www.ngo-monitor.org/key-issues/un-bds-blacklist/ which-ngos-are-involved-in-the-creation-of-the-blacklist/ 15.  UKSC 8 (see particularly para. 17).