On November 11, 2022, Francesca Albanese, the United Nations Special Rapporteur on the situation of human rights in the Palestinian territories, tagged Israel’s ambassador to the United Nations Gilad Erdan in a Tweet. She was responding to another raging, embarrassing speech of his. “I am beyond concerned” about the tone and content of Erdan’s speech, she wrote. “The UN shall be no home to intimidation and retaliatory threats.”
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From time to time, Albanese shares tweets and articles critical of Israel and speaks out harshly against the country, but from reading the first report she has issued since taking her post in April, it seems that she, like Erdan, is mainly working to preserve the “status quo.”
Her report was written like an op-ed on Zionism, colonialism and the ways to cope with it. In Albanese’s opinion, instead of focusing on the crime of apartheid, we should focus the discourse on settler-colonialism. She explains that the focus on apartheid is problematic, in part because even if the apartheid is solved, as long as Israel holds territories over the Green Line, it will be a crime of “aggression” and its colonialist enterprise there will continue.
Albanese’s proposal to end the focus on the crime of apartheid comes as it has begun to take root and influence public opinion in many countries in recent years - after it was recognized by Israeli and international human rights organizations, as well as Albanese’s predecessor in the post, Michael Lynk.
This proposal lacks all the meaning of the legal and public battles waged over the past few decades to end the broad immunity afforded to Israel and its senior leadership in the international arena. Most of the world’s nations are obligated by international conventions to help bring to justice those who commit war crimes and crimes against humanity, such as apartheid, extrajudicial killing, indistinction between civilians and legitimate military targets, denying freedoms and torture. But since leaders and generals of Germany and Japan went on trial at the end of World War II, international criminal trials have not been conducted for the crime of aggression.
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Especially after the invasions of Iraq and Afghanistan, Western nations have had no interest in conducting such trials. It is unsurprising, then, that instead of naming the specific Israeli officials who are responsible for specific crimes, Albanese chose to do the bare minimum in the report. She made general calls for an international investigation and for bringing those responsible for the crimes to trial.
It took the UN three-and-a-half years to prepare a list of companies that operate in West Bank settlements, after the December 2016 Security Council resolution instructing it to do so. Apropos of nothing, Albanese recommended that the list be updated, a step that will likely be dragged out over several years. She recommended this over calling out specific countries that ignore the existing list. Through a simple Google search, she could have found that the Norwegian government’s pension fund invests billions of dollars in Israeli companies, including some that operate in settlements and appear on the UN list.
Even though her report focuses on the issue of colonialism and the right to self-determination, it seems that Albanese herself is stricken with a colonialist approach. She claims that because of a lack of symmetry between the parties, the Palestinians and their leadership are not capable of conducting equitable negotiations with Israel, and that the matter of dismantling the occupation in the West Bank and Gaza Strip must be handed over to the UN General Assembly. It is difficult to understand the legal basis for Albanese’s claim that the Palestinian people, who are entitled to self-determination, will not be allowed to conduct the discussions of their fate for themselves.
Happy are the people who believe that countries that support Israel or buy weapons and tracking systems from it – and for 55 years did not turn their critical statements into actions – will stop betraying the Palestinians. This is all the more true after the Abraham Accords. Albanese’s focus on the colonialist aspect is woven into her entire report: The Palestinian leadership, with all its successes and failures, is almost completely absent, and the Palestinians are described as the objects, not as subjects, in Israel’s colonialist project and – in Albanese’s project to liberate them.
To Albanese, Israel’s story bears resemblance to that of the Spanish expedition led by Christopher Columbus, which began its colonization in the Americas with zero historical connection to the lands. According to her, “European Jewish settlers and refugees from Europe” arrived in Palestine before the UN Partition Plan in 1947, even though “a native Palestinian Arab population had resided for millennia” on that land. Albanese explained this by citing the strengthening international support for fulfilling the establishment of a “State for the Jews” in Palestine after the “genocidal horror of the Holocaust” and after centuries of antisemitism and persecution of Jews in Europe.
The erasure of any Jewish historic and religious affinity for the Land of Israel before 1947 not only contradicts the historical and archaeological record, but also recalls antisemitic claims of a global conspiracy of Jewish refugees using the Holocaust as an excuse to dispossess the Palestinian natives – not to mention the modern European far right’s claims of a Muslim conspiracy to colonize these countries by using refugees, at the expense of the native Christians.
In other words, after she survived two concentration camps, medical experiments, forced labor and a death march, my grandmother may have been left bald, toothless, lacking functioning internal organs and with most of her family murdered, but she had a satellite phone she used to coordinate a colonialist project. The truth is that she knew nothing of the Palestinians – she simply came to the sole place in the world that would accepted her.
Not an act of mercy
Albanese’s claim that the Jews began arriving en mass in Palestine just because the United Nations took pity on them after the Holocaust is also factually incorrect. This was not an act of mercy, but one of political agendas. The countries that had nothing to do with the Holocaust had a range of diplomatic reasons to vote in favor of the UN partition plan. After World War II, the founding of a state for the Jews in Palestine was also a convenient solution for European countries, who did not want to take back the Jewish refugees. Most of these refugees had had their property confiscated, had no official documents and were in poor health; the countries preferred that they disappear into Palestine or the United States.
This argument also downplays the severity of the antisemitism the immigrants faced. It ignores the fact that even though some Jews immigrated to Palestine out of choice, the large waves of Jewish migration to Palestine before the Holocaust began were mostly the result of pogroms, antisemitism and antisemitic legislation – and the dramatic effect of laws restricting immigration to the United States in 1924. In other words, this was not a false pretext intended to justify colonialism, but a true motive of the Jews to immigrate to Palestine. For example, my grandfather, like many other Jews, migrated to Palestine after a series of pogroms in western Ukraine; according to estimates, about 200,000 Jews were murdered in the country between the two world wars.
In her report, Albanese expresses support for the armed Palestinian struggle as part of the legitimate struggle against colonialism. Since the end of the Cold War and the wars for liberation in the last quarter of the 20th century, international support for the legitimacy and legality of the armed struggles of liberation movements and separatist groups has decreased. In the Palestinian context, most of the main Palestinian armed groups have been declared terrorist organizations by most European countries, Canada, Japan, Australia and the United States. Albanese ignores these designations.
From time to time, the armed the armed Palestinian struggle also includes intentional attacks on Jewish Israeli civilians. Sophisticated antisemites employ a method in which they voice support for the Palestinian armed struggle without adding a “minor” caveat that it is forbidden to harm civilians, whoever they may be. Albanese certainly recognizes that the fundamental principles of international law include a prohibition on intentionally harming civilians, and an obligation to differentiate between civilian and military targets. This is why the U.N. international commission of inquiry report on South Africa stated that the crimes of the apartheid regime cannot be used to legitimize crimes against international law committed by armed liberation groups. In a similar fashion, no crime that the State of Israel and its security forces commit can legitimize an intentional attack against Jewish Israeli civilians.
On this matter, Albanese added an argument – whose source in international law is not quite clear – according to which Israel has lost the right to self-defense and preventative action because it is a colonialist occupying force. In other words, if there is intelligence that a Palestinian intends to go to an Israeli pub and shoot people there, as happened at Tel Aviv’s Ilka Bar in May, or blow up a bus stop in Jerusalem, as happened on Wednesday, Israel does not have the legal option of defending its citizens. Albanese herself knows that this is an unacceptable viewpoint, and in a Tweet she wrote that she hopes the International Committee of the Red Cross – considered one of the bodies that sets the customary rules of humanitarian international law – will adopt her position.
In the age of social media, you do not have to make a special effort to earn admiration through criticizing Israel. It is more than enough to echo claims of antisemitic conspiracy theories, to distort the rules of international law and hint at support for harming civilians. If Israel criticizes Albanese and refuses to meet with her, it will only strengthen her standing in certain circles and brand her an underdog. At the same time, a true call to break the status quo would exact a personal price from Albanese. If she wants Western diplomats to meet with her, and if she wants to continue receiving senior positions in the United Nations or in other international organizations – which are appointed mostly by Western countries – she cannot risk accusing the United States and specific European countries of their direct and indirect aid for Israel’s policy of apartheid. She cannot publicly challenge the cloak of legal and diplomatic immunity they grant Israel, or explicitly call for the United States to halt or change the military aid it provides to Israel.
Perhaps for her Twitter followers, the report will suffice. But the Palestinian refugees all over the world, and Palestinian residents on both sides of the Green Line deserve more than that.
Eitay Mack is a lawyer and a human rights activist.