International Relations

Subject: International Relations

Instructions

This assignment is a take-home essay consisting of 3 questions, 2 pages total, to test knowledge and assimilation of the course objectives. Please exclusively use the course materials attached to support each answer. To answer these questions paraphrase, do not use quotations.

Please answer all three questions below in a paragraph format by listing the number followed by your answer. I recommend using the MEAL plan to organize your paragraphs. For more information, please check out this link https://twp.duke.edu/sites/twp.duke.edu/files/file-attachments/meal-plan-2-1.original.pdf. Please cite your sources using in-text citations; a reference list is not needed. Please review your work for errors before submitting it and ensure that it is grammatically correct. Your submission should be no more than 2 pages in length. Use 12 pt. font and double-space.

1. Explain what Zewei’s article from the week reading was all about. Be sure to identify the thesis and conclusions.

2. What are the main ideas in Steinberg’s article?

3. Based on the Cragg, Arnold, and Muchlinski’s article, when and why did “business and human rights” become an international topic? What explains the delay?

See attached articles for readings.

Guest Editors’ Introduction Human Rights and Business

Wesley Cragg York University

Denis G. Arnold University of North Carolina, Charlotte

Peter Muchlinski School of Oriental and African Studies

ABSTRACT: We provide a brief history of the business and human rights discourse and scholarship, and an overview of the articles included in the special issue.

KEY WORDS: business, human rights, UN Framework, Ruggie, corporations

DISCUSSION OF BUSINESS AND HUMAN RIGHTS from an expUcitly ethicalperspective has a unique history. Prior to the last decade of the last century, it was rarely discussed or examined. This might at first glance seem rather surprising. The idea of human rights has been the subject of intense inquiry and debate now since the renaissance and on some accounts before (Lloyd 1991, Lee and Lee 2010). The pursuit of human rights has motivated revolutions, for example the American and French revolutions. Debates about their ethical, political and legal status and foundations have played a central role in academic and political discourse since the Enlightenment. In the twentieth century, the practical political challenges of embed- ding human rights in intemational law have dominated the agendas of emerging intemational institutions like the United Nations, particularly since the end of the Second World War. In contrast, the first discussion of business and human rights in intemational institutions can be traced back only to the 1980s with the draft UN Code of Conduct on Transnational Corporations (United Nations 1984). Even with this UN initiative, significant academic attention to the topic was ignited only in the early to mid-1990s (an important early work is Donaldson 1991). Surprising as this late emergence of the subject might seem, the reasons are not hard to find. Until late in the last century, it was conventional wisdom that the responsibility for protecting and advancing and etihancing respect for human rights lay with govem- ment (Ruggie 2006 and 2007). On this view, the only human rights responsibilities of the private business sector were indirect legal responsibilities. It was only in the 1990s that doubts about the efficacy of this allocation of responsibilities began to gain widespread attention, driven, it is widely agreed, by the phenomenon of glo- balization (Chandler 2003, Ruggie 2006, Kobrin 2009, Cragg 2010, Lee and Lee

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2010). By extending the economic importance and reach particularly of multinational corporations, a process encotiraged and facilitated by national and intemational laws and treaties limiting in significant ways the capacity of governments to control the movement of goods based, for example, on the conditions under which they were produced, globalization gave rise to serious questions about both the ability and the willingness of national govemments to fulfil their human rights responsibilities.

As Geoffrey Chandler points out (2003), the first red flags were raised by NGOs like Amnesty Intemational in 1991. However, the real catalyst for change was “the arbitrary execution of Ken Saro-Wiwa and eight other Ogonis” by the Nigerian Govemment in November 1995 (Chandler 2003), an event whose character and impact are explored in this volume of essays by Florian Wettstein (2012). It was subsequent to this event that human rights commitments began to appear in the voluntary ethics codes of major multinational corporations and industry associa- tions encouraged by govemment exhortations and pressed by NGOs increasingly determined to hold corporations with intemational business interests to account for human rights abuses.

An early sign that significant shifts in views about the allocation of human rights responsibilities between the public and private sectors were under way occurred in 1998 when the United Nations Sub-Commission for the Promotion and Protection of Human Rights established a sessional working group to study and report on hu- man rights and business. What followed in 2003 was a report entitled “Norms on the Responsibilities of Transnational and Other Business Enterprises with Regard to Human Rights.” At the core of the report was the proposal that transnational corporations and other business entities should be brought directly under the am- bit of intemational human rights law, humanitarian law, intemational labor law, environmental law, anti-corruption law and consumer protection law (Hillmanns 2003: 1070). That is to say, the report was calling for a dramatic shift away from the prevailing conventions and assumptions allocating the fundamental responsi- bility for protecting and promoting human rights to the State. Not surprisingly, the report aroused strident opposition on the part of a significant section of the business community and govemments (Amold 2010). While the report was never formerly endorsed by the UN, it did have two significant impacts. First, it resulted in a se- ries of recommendations that eventually led the UN Secretary General to appoint, in 2005, a special representative, John Ruggie, to take up the issue of the human rights responsibilities of transnational corporations and other business enterprises. Its second significant impact was to bring into sharp relief three key questions: Was it appropriate to bring corporations under the ambit of intemational law heretofore focused on nation states and to a lesser degree on individuals? Did corporations have human rights responsibilities beyond those set out by law whether domestic or intemational? If the human rights responsibilities of corporations did extend beyond those required by law, what exactly was the nature of those responsibilities?

The work of the UN Sub Commission both stimulated and was supported by legal scholarship concemed to determine whether enterprises that enjoy the pro- tection of certain human rights could also be understood to have human rights responsibilities or duties. The result was a growing consensus based on analogy

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with the responsibilities owed by natural persons to observe human rights and the fact that large transnational corporations in particular both had the power to infringe human rights and were guilty of significant human rights abuses, that it followed that transnational corporations could be understood to have direct human rights responsibilities (Clapham 2006).

Over the last two decades, legal practice has also moved in this direction evidenced by litigation under the US Alien Torts Claim Act and some important developments, in common law jurisdictions, concerning parent company liability for human rights related harms caused by overseas subsidiaries. Similar developments have also taken place in civil law countries, notably in France and the Netherlands, where lawyers have begun to engage in socially entrepreneurial public interest litigation (Muchlinski 2009). On the other hand, legislative attempts to extend human rights liabilities to home based companies, in the form of private members bills in the US Congress and the Parliaments of Australia, the United Kingdom and Canada, have all met with failure.

Business ethics scholars have also found themselves drawn into the debate first by reflections on the phenomenon of globalization and its human rights impacts and also by the work of the UN Sub Commission and the more recent work of the Special Representative of the UN Secretary General, John Ruggie (2006,2007,2008, 2010, 2011). Business ethics scholars have argued that transnational corporations have direct human rights obligations on contractualist grounds (Donaldson 1991, Cragg 1999) and on an agent based conception of human rights (Arnold 2010). They have also defended the use of human rights as potentially enforceable transnational norms of conduct for TNCs (Campbell 2006, Kobrin 2009). Other scholars have challenged the applicability or usefulness of rights language pertaining to corporate obligations in non-Western contexts (Strudler 2008). As evidenced by the contribu- tions to this special issue, discussion and research have ranged across the ethical dimensions of all three of the questions brought into focus by the debate generated by the Draft UN Norms.

In 2011 the United Nations Human Rights Council endorsed the “Protect, Respect and Remedy” Framework submitted by John Ruggie as Special Representative of the Secretary General of the United Nations. In that report he proposed the adoption of a framework that addresses all three of the questions highlighted by the earlier work of the Sub Commission described above. Ruggie’s framework features a State duty to protect human rights, a corporate responsibility to respect human rights, access to effective remedies for human rights abuses and a responsibility on the part of all actors to engage in due diligence with a view to identifying and managing responsibly the potential and actual human rights impacts of their activities. The work of John Ruggie and his proposed framework, now referred to widely as the UN Framework, have had the effect of further sharpening and structuring discussion on the human rights responsibilities of transnational corporations particularly with regard to their operations in developing and underdeveloped parts of the world, in zones of conflict, and in areas in which government has become seriously dysfunc- tional or deeply and systemically corrupt.

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The influence of John Ruggie’s work and his recommendations can be seen to be in play in this special issue (Cragg 2012, Wood 2012, Wettstein 2012, and MucMinski 2012).

As Peter Muchlinski (2012) points out, the proposal that corporations have direct human rights responsibilities, is “significant, if not revolutionary.” Though this re- sponsibility is not a legally binding one under international law, nonetheless it directly challenges prevailing conventional legal wisdom in international law that holds that only governments and to a much lesser degree individuals have direct human rights responsibilities. At the heart of Ruggie’s framework is the view that corporations have a responsibility to respect human rights particularly where international and national human rights law does not reach or is not enforced. Corporations should take up this responsibility, Ruggie argues, to avoid reputational and other risks aris- ing from rising public expectations surrounding their “social licence to operate” combined with increased public scrutiny which are all a consequent of globalization.

The first paper in this special issue (Cragg 2012) examines the “enlightened self interest” account Ruggie argues provides corporations with a persuasive reason to take up the “responsibility to respect” and identifies it as a serious weakness in the justificatory foundations of the UN Framework. The paper argues that the UN Framework can be expected to acquire significant traction on the part of transna- tional corporations only if the corporate responsibility to respect human rights is clearly demonstrated to be and acknowledged by corporations themselves to be a direct and explicitly ethical or moral obligation, a moral obligation that is distinct from their obligation to obey the law. The paper argues that paradoxically the most effective way of extending the direct reach of international human rights law to include transnational corporations is to acknowledge, and persuade the corporate sector to acknowledge, that the “responsibility to respect” human rights is in the first instance an explicit and direct moral obligation

The UN Framework constructed by John Ruggie (2008, 2010, 2011) allocates to governments the duty to protect, a positive duty, and to corporations the duty to respect, an essentially negative duty to do no harm. In “Silence as Complicity: Ele- ments of a Corporate Duty to Speak Out against the Violation of Human Rights,” Florian Wettstein (2012) challenges this allocation of responsibilities. He argues that when four conditions are satisfied—voluntariness, connection to the human rights violation, power to significantly influence the perpetrator, and a certain social or political status—corporations have a positive moral obligation to speak out against human rights abuses perpetrated by governments with a view to protecting or help- ing to protect potential or actual victims.

Building on conditions similar to those set out in Florian Wettstein’s analysis of silent complicity, Stepan Wood questions, in the third article, John Ruggie’s rejec- tion of the view that “sphere of influence” should play a role in defining the human rights responsibilities of corporations. To the contrary, Stepan Wood argues, the ability of corporations to influence the actions of others as a result of their relation- ships or “their leverage” does generate significant moral obligations that go beyond the “responsibility to respect,” a negative moral responsibility to do no harm, to include a responsibility to protect human rights, a positive moral responsibility to

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do good. The central purpose of Wood’s analysis is then to define the nature of the responsibilities that come with leverage.

If we accept that corporations have human rights responsibilities, then the next task is to define the responsibilities of corporations for ensuring that their human rights responsibilities are effectively fulfilled. A related set of issues concems the responsibilities of other key players for ensuring that corporations fulfil those re- sponsibilities. Individual and institutional investors are an example. A formal feature of Canadian corporate law permits equity holders to bring shareholder proposals to the attention of other equity investors for discussion and decision by formal vote. In 2008, a group of institutional investors used a shareholder proposal to persuade a large Canadian gold mining company, Goldcorp, to commission a human rights impact assessment of the operations of its Marlin Mine in Guatemala. In the fourth article, Aaron Dhir (2012) analyzes the law allowing shareholder proposals (the very controversial use made of the shareholder proposal tool to bring about a human rights impact assessment of the Marlin Mine), implementation of the subsequent assessment, its impact on communities adjacent to the mine and the implications of this initiative for the ethical use of shareholder proposals.

In the fifth, penultimate, article, John Bishop (2012) strikes a cautionary note pointing out that with responsibilities come rights. If corporations have human rights responsibilities, they must be accorded the rights required to fulfill those responsibilities. It is important therefore to identify carefully the rights required by corporations as the nature and scope of their human rights responsibilities are delineated. A key purpose of this article is to undertake that analysis and to assess the boundaries of corporate human rights responsibilities through a consideration of the boundaries appropriately placed on the nature and scope of corporate rights.

In the concluding paper in this special issue, Peter Muchlinski (2012) argues that the UN Framework requirement that corporations exercise due diligence for the purpose of ensuring that they meet their responsibility to respect human rights will lead to the evolution of legally binding duties under both national and intemational law. He suggests that the development of binding duties will be of particular value to involuntary stakeholders. Finally, picking up a theme central to the first paper in the special issue, he suggests that the result of an evolving understanding of the human rights duties in corporate law might well be a view of the purpose of the contempo- rary shareholder owned corporation that goes beyond enlightened shareholder self interest to a stakeholder focus grounded on a more integrated ethical understanding of the role of business in society in the twenty-first century.

NOTE

To preserve the integrity of the editorial process, the editors of the special issue played no role in the review of the papers by Cragg and Muchlinski. Those submissions to the special issue were instead managed by former editor-in-chief and current senior associate editor Gary Weaver.

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REFERENCES

Arnold, D. G. 2010. “Transnational Corporations and the Duty to Respect Basic Human Rights,” Business Ethics Quarterly 20(3): 371-99.

Bishop, John. 2012. “The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations,” Business Ethics Quarterly 22(1): 119^4.

Campbell, Tom. 2006. “A Human Rights Approach to Developing Voluntary Codes of Conduct for Multinational Corporations,” Business Ethics Quarterly 16(2): 255-69.

Chandler, Geoffrey. 2003. “The Evolution of the Business Human Rights Debate,” in Business and Human Rights, ed. Rory Sullivan, 22-32 (Sheffield, UK: Greenleaf Publishing Ltd.).

Clapham, Andrew. 2006. “Corporations and Human Rights,” in Human Rights Obligations of Non-State Actors, chap. 6 (Oxford: Oxford University Press).

Cragg, W. 1999. “Human Rights and Business Ethics: Fashioning a New Social Contract,” Journal of Business Ethics 27(1-2): 205-14.

2010. “Business and Human Rights: A Principle and Value-Based Analysis,” in Oxford Handbook of Business Ethics, ed. George Brenkert and Tom Beauchamp, 267-305 (Oxford: Oxford University Press).

.. 2012. “Ethics, Enlightened Self Interest and the Corporate Responsibility to Respect Human Rights: A Critical Look at the Justificatory Foundations of the Proposed UN Human Rights Framework,” Business Ethics Quarterly 22(1): 9-36.

Dhir, Aaron. 2012. “Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights, and TWAIL Discourse,” Business Ethics Quarterly 22(1): 99-llS.

Donaldson, T. 1991. The Ethics of International Business (Oxford: Oxford University Press).

Hillmanns, Carolin F. 2003. “UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights,” German Law Joumal 4( 10) : 1065-80.

Kobrin, Stephen, J. 2009. “Private Political Authority and Public Responsibility: Transnational Polities, Transnational Firms, and Human Rights,” Business Ethics Quarterly 19(3): 349-74.

Lee, Daniel E., and Elizabeth J. Lee. 2010. Human Rights and the Ethics of Globalization (Cambridge: Cambridge University Press).

Lloyd, Denis. 1991. The Idea of Law (Harmondsworth: Penguin Books).

Muchlinski, Peter. 2009. “The Provision of Private Law Remedies against Multinational Enterprises: A Comparative Law Perspective,” Journal of Comparative Law 4(2): 148-70.

2012. “Implementing the New UN Corporate Human Rights Framework: Implications for Corporate Law, Govemance, and Regulation,” Business Ethics Quarterly 22(1): 145-77.

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Ruggie, J. G. 2006. Promotion and Protection of Human Rights: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises. UN Doc E/ CN.4/2006/97.

2007. Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts. UN Doc A/HRC/4/035.

2008. Protect, Respect and Remedy: A Framework for Business and Human Rights. UN Doc A/HRC/8/5.

2010. Business andHumanRights: Further Steps towardthe Operationalization of the “Protect, Respect and Remedy” Framework. UN Doc. A/HRC/14/27.

2011. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. UN Doc. A/ HRC/17/31.

Strudler, Alan. 2008. “Confucian Skepticism about Workplace Rights,” Business Fthics Quarterly 18(1): 67-83.

United Nations. 1984. “Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises. UN Doc. E/1990/94.

Wettstein, Florian. 2012. “Silence as Complicity: Elements of a Corporate Duty to Speak Out against the Violation of Human Rights,” Business Ethics Quartery 22(1): 37-61.

Wood, Stepan. 2012. “The Case for Leverage-Based Corporate Human Rights Responsibility,” Business Ethics Quarterly 22(1): 63-98.

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Western International Law and China’s Confucianism in the 19th Century. Collision and Integration

Yang Zewei*

Professor of Law, Wuhan University, Wuhan, China

The Confucian world view in China was based on the concept of the Celes- tial Empire of China and embodied in the Tributary System. The Chinese view could not fit into the equal international relationship asserted among European countries. In the mid-19th century, especially after the Opium Wars, international law embarked on a furious collision with Chinese tra- ditional Confucianism. Threatened by forces of Western powers, the Qing government had no choice but to come to compromise with the Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply international law.

Introduction

Due to its special history and culture, China did not build a diplomatic system based on the principle of sovereign equality. The Confucian world view based on the concept of the Celestial Empire and the Tributary System lasted until the mid-19th century. The Opium War (1839–1842)1 not only

* Ph. D. E-mail: yangzewei@hotmail.com. 1) From the late eighteenth century, Britain began to export opium to China. In 1838 more than 40000 chests of opium were exported to China. In consequence, opium flooded China and the Qing Government fell into a severe financial crisis because the outflow of silver caused its soaring price. In the end of 1838, Emperor Daoguang sent Mr. LIN Zexu as the imperial missioner to ban opium in Guangzhou. In June, 1840, the British government,

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forced China to learn about the modern international relations, but also forced a way for international law, a European norm of a new international relationship, into China. From then on, international law began to collide as well as integrate with Chinese traditional Confucianism.2 Threatened by the force of Western powers, the Qing government had no choice but to come to compromise with Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply international law. Meanwhile, although the Qing Government had been forced to enter into the international community and an international legal system, international law played little role in China’s foreign relations. Instead the Unequal Treaty Regime played an important role.

This article includes four sections. Section I is an introduction to the Chinese Confucian world order regime, centered on the Celestial Empire of China and the Tributary System. Section II discusses the collision between modern international law and Chinese traditional Confucianism regarding world order, international relations, foreign trade and treaty regime. Section III discusses the integration of modern international law and Confucianism, including the introduction of modern international law into China, the Unequal Treaty Regime and the Tsungli Yamen (Office of Foreign Affairs). Section IV offers a tentative conclusion that the collision between western

allied with France and the USA, launched the Opium War against China. However, for the British government the opium issue merely gave it an excuse to go to war against China – without it the conflict would still have occurred. As a result, China was defeated and was forced to sign the Treaty of Nanking on 29 August 1842 and the Treaty of the Bogue on 8 October 1943. 2) Confucianism is a school of political and ethical philosophy, not a religion, founded by Confucius (551–479 BC) and his disciples. Since the Han Dynasty, Confucianism had become the mainstream of feudalism in China, and Confucianists developed new theories to meet the needs of different feudal dynasties. As a result, Confucianism had been domi- nating Chinese academy for more than 2000 years and Confucian classics had been the guiding rules for feudal authorities. Meanwhile, Confucianism, as the main body of Chinese traditional culture, had played an irreplaceable role in maintaining national integrity and stability, and provided a huge contribution to preserve and develop traditional culture. See Li Zhaojie, Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order, Singapore Journal of International & Comparative Law, Vol. 5, 2001, p. 314. J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 6. Mark Mancall, China at the Center, 300 Years of Foreign Policy, London 1984, pp. 22–23.

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modern international law and Confucianism ended with the latter’s com- promise. The integration of the two, as a result of coercion from Western powers, in practice helped to promote China’s modernization.

I. World Order According to Confucianism

The Confucian world order is based on the view of the Celestial Empire of China and the Tributary System.

A. The Celestial Empire of China

In 221 B.C., Emperor Qin Shi Huang built a unified country. Then, a regime of the Celestial Empire of China gradually came into being, which had been the basic policy on foreign relations in the later 2000 years of history. According to the regime of the Celestial Empire of China, Chinese authority regarded China as a Celestial Empire with ultimate supremacy over other countries with China as the only civilized country; then the world was entered on Chinese Celestial Empire, with neighboring countries as “barbarians” or “dependent countries”, which should pay tributes to China. In order to show its grandeur and generosity, China always granted more gifts to these tributary states than their tributes.

At least three factors can be identified leading to the establishment of the regime of the Celestial Empire of China:

Firstly, a wrong concept about geography.3 Geographically speaking, China is in a relatively independent and locked

area with seas to its east and south, and deserts and mountains in its west and southwest.4 As a result, since ancient times the Chinese have believed that China lies in the center of the world, which explains why China is always referred to as zhongguo (central state) or zhongtu (central land). For example, the work QingChao WenXian TongKao (A Comprehensive Analysis of Civil Institutions of the Qing Dynasty), composed in the mid-Qing Dy- nasty, pointed out that “China surrounded by seas lies in the center of the world; those, living in the border land beside seas, are yi (people living in

3) See Li Zhaojie, International Law in China: A Legal Aspect of the Chinese Perspective of World Order, SJD thesis at the University of Toronto 1996, pp. 9–11. 4) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 215.

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the frontiers), and overseas countries are yi too.”5 Here, the word “yi” con- notes barbarians or tributaries.

Secondly, imbalance of development between China and neighboring states.

China had created a splendid culture superior to neighboring states and had long taken the lead in the cultural development in the world. Therefore, generally speaking, the neighboring states had long been under the influence of Chinese culture. It is not surprising that Chinese authorities gradually formed a sense of superiority over “foreign” countries. According to Gong- yang Shou, a famous ancient scholar, one of the most important reasons Confucius wrote Chun Qiu (Spring and Autumn) was to emphasize China’s superiority over foreign states.6 Mencius (372 BC – 289 BC) also says that “I only know China makes foreign states change, but never know China is changed by foreign states.” 7 Mathew Ricci, an Italian scholar, pointed out that “Chinese believe China is the only country in the world that deserves praise and commendation. In terms of its grandeur, system and academic achievements, they regard foreigners as unreasonable barbarians. In their view, no other king, dynasty or civilization deserves commendations.”8 Since foreign states are on the outer fringes of Chinese civilization, the only reason for them to conduct an intercourse with China is to learn from the admirable Celestial Empire.

Thirdly, the political needs of the emperors. In order to maintain the throne, every emperor claimed himself to be the

emperor chosen by Heaven to own and govern the world, thus claiming that “under the whole heaven, there is no land that is not the Emperor’s, and within the sea-boundaries of the land, there is none who is not a subject of the Emperor”.9 The theory of the divine right of emperors, integrated with Confucian cardinal guides and constant virtues which value priority

5) QingChao WenXian TongKao (A Comprehensive Analysis of Civil Institutions of the Qing Dynasty), Vol. 293. 6) Li Xueqing (ed.), Commentary on Gongyang’s Chun Qiu (Spring and Autumn), Peking University Press 1999, p. 400. 7) Mencius, Collected Works of Mencius, China Book Press 1988, p. 44. 8) Mathew Ricci and Louis Gallagher, China in the Sixteenth Century: The Journals of Mathew Ricci, translated by He Gaoji etc., China Book Press 1983, p. 18. 9) Book of Odes (in Chinese), Chap. II.

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in place or rank, verifies the absolute authority of the monarchy who has the supreme power and no one else is higher than or equal with him.

Two factors repose at the center of the view of China’s Celestial Empire: de (the virtuous conduct) and li (proper ceremony).

De, as the political ideology of Confucianism, was a basic guiding prin- ciple for the emperor to deal with foreign relations. De covers a wide range of contents, including religion, ethics and national policy, and even “every virtuous conduct in the world”.10 Confucianism lays special emphasis on the self-cultivation of virtues, holding that the virtue of an emperor would play a crucial role in maintaining the harmony of the world. So, an emperor should rule the country by a kingly way, instead of by force of dictatorship. It is stated in liji – zhongyong (The Book of Rites – The Doctrine of The Golden Mean), one of the Confucian classics, that an emperor should treat others kindly in order to win their hearts. How to treat others kindly? The general principle was to employ a pacification policy in order to achieve conciliation between ethnic groups or states, and at the same time grant more economic benefits to them through the Tributary System. Thus, the feudal emperors, with supreme virtues, maintained the unification of the world.

Li is another crucial factor in the construction of Confucian world order. Guanzhong, an ancient statesman, pointed out that “‘Call the wavering with the proper ceremony; cherish the remote with virtuous conduct; when both of them are shown invariably, there are none but will be won.”11 The factors de and li play together in order to guide the world into a harmony. “Proper ceremonies are employed to build a harmonious world.”12 Li explicates the structure and order of the relations between China and foreign countries. The proper ceremonies, such as conferrence of titles of nobility and the tributary system, constructed the emperor – subject relationship between China emperors and foreign kings, thus maintaining a harmonious world.

According to Confucianism, the purpose of a united world, rule by a kingly way and rule of virtue is to build a harmonious and orderly society. In the case of the relationship between China and small countries, it means that a big country should be kind to small countries, instead of coercing or

10) See Liu Zehua, A History of Politics in the Qin Dynasty, Nankai University Press 1984, p. 38. 11) Zuozhuan (Zuo Qiuming’s Commentary on Chunqiu), China Book Press 1980. 12) The Analects of Confucius, China Book Press, 1980.

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threatening them, while a small country should be sincere to a big country, full of respect and humility. 13 Accordingly, Confucianism’s influence on the idea of Celestial Empire is manifested in the fact that each country has its own position in the system and each fosters its harmonious relationship with others.

Thanks to Confucianism, the concept of Celestial Empire of China is enriched with characteristics of anti-violence and anti-war. Comparatively speaking, before the mid-19th century, China-dominated East Asia was indeed exposed to less violence and wars than afterwards. In the Ming Dy- nasty, Emperor Zhu Yuanzhang made an imperial edict which stated “Those small remote barbarian states, if only constituting no threat to China, shall not be attacked by the Empire.”14 Then Emperor Zhu decided that more than 20 states, including Korea and Japan, were “No-attacking states”, and instructed his descendants to abide by his decision.

It should be noted that the scope of Confucian world order is not quite definite, including the so-called “barbarian” subordinate neighboring states, such as Korea, Luichiu, Annam, Burma, and other countries in Central and Southeast Asia, sometimes Japan. Besides, the countries of these areas will- ing to establish a foreign relationship with China in a subordinate status, are also within the scope of the Confucian world order.15

B. The Tributary System

The Confucian world order, based on the Celestial Empire ideology, pro- duced a wide range of diplomatic norms and systems, and consequently established the unique tributary system in East Asia.16

The Tributary System is a comprehensive and intricate system, through which the Empire of China established relationship with neighboring vassal states. According to regulations made in the Qing Dynasty, the Tributary System mainly includes the following: 1) the Emperor’s appointment of

13) Mencius, Collected Works of Mencius, China Book Press 1988, p. 13. 14) See The Ming Shi-lu (also known as the Veritable Records of the Ming Dynasty, Cathay Bookshop 1983, pp. 485–486. 15) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 215. 16) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, p. 137.

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the ruler of a vassal state, recognition of its tributary status, and conference of an official seal on the ruler to send an official communication; 2) the ruler’s honorific title in the hierarchy ladder of the Empire of China; 3) only Chinese calendar date allowed in all official communications, including the memorial to the throne; 4) presenting memorials to the throne according to regulations; 5) offering the local products to the throne as a symbolic tribute; 6) escort of the tribute mission from the imperial post to the im- perial palace; 7) the tribute mission’s obeisance of Chinese manners when presenting himself before the emperor, especially the kowtows (namely, prostrating himself three times and striking his head on the ground thrice at each prostration); 8) grant of gifts to the tribute mission by the emperor; and 9) some trade privileges in the capital and across borders. Besides, the Tributary System contains regulations on the tribute commission’s frequency and scale, its entry and departure, its residence in the capital, and its con- duction of trade and so on.17

In fact, the Tributary System is conducive to maintaining the Chinese Empire and the tributary states.18 To the Chinese Empire, it is not only a way to acknowledge and maintain the world order centered on China, but also one safeguard of the Empire of China, because the surrounding countries as an “outer fence” kept the Empire from barbarians’ aggressions. So the Tributary System helped to protect Chinese Empire’s security and sovereign integrity. The tributary states even benefited more. First, thanks to the title from the Chinese emperor, the ruler of the tributary state legal- ized his throne, and improved his authority before his subjects. Second, the tributary states were not only protected by China from any foreign invasion, but also able to ask for China’s aids in natural disasters. Third, because of the Tributary System, the tributary states not only received much more valuable gifts from the emperor than the tribute which they provided to China, but also were permitted to conduct trade with China.19 Of course,

17) See the Collected Statutes of Great Qing Empire, 1818. 18) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 221. 19) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, pp. 140–141.

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the Tributary System promoted cultural ties as well.20 In short, the Tributary System played an important role in political, economic and cultural relations.

In some sense, the Tributary System is a comparatively stable system,21 within which China’s foreign relations were developing. In other words, to the Chinese, any type of foreign intercourse must be adapted into this system.22 For example, foreign envoys were treated as tributary missions, and the sending of diplomatic envoys of China was also within the scope of the Tributary System, regardless of their duty. The most vivid example was that in the Ming Dynasty when Zheng He and his fleet went on seven expeditions from 1403 to 1433, even reaching the Indian Ocean and the east coast of Africa.

In accordance with the Tributary System, China had established cor- responding agencies. For example, in the Ming Dynasty the Ministry of Rites was in charge of supervising the relations with tributary states, and the Ministry of War was in charge of relations with clans and tribes. In the Qing Dynasty, Li Fan Yuan (the ministry dealing with vassal states affairs) was established to deal with the relations with Mongolians, and later with barbarians as well. It is thus clear that the Ministry of Rites and Li Fan Yuan are two main agencies in the Tributary System. Besides, there were some other agencies involved in the procedural tasks, for example, Hui- Tong Guan providing residence for tributary commissions, Hung-Lu Si supervising the official rites, and the Ministry of War escorting tributary commissions to the border.23

The Tributary System originated during the Zhou Dynasty and brought into its completion during the Ming Dynasty and the Qing Dynasty. Its long history itself has proved its smooth functioning in China. It is recorded in the Collected Statutes of Great Ming Empire that there were 123 vassal states presenting tributes to the Ming Empire.24 According to the Collected

20) See Immanuel C. Y. Hsu, The Rise of Modern China, 2nd ed., New York 1975, p. 184. 21) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 222. 22) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, p. 141. 23) See Chen Tiqiang, China’s Administration of Foreign Affairs, Chongqing 1943, Chapter 1. 24) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 3.

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Statutes of Great Qing Empire, the states, including Korea, Luichiu, Annam, Siam, Sulu, Lao, Burma and Holland, sent tributary commissions to China regularly in the Qing Dynasty.25

The success of the Tributary System depended on two reasons. On one hand, the System was not based on force, although forces may be used on rare occasions (Emperor Yang in the Sui Dynasty and Emperor Taizong in the Tang Dynasty went on an expedition against Korea, and Emperor Chengzu in the Ming Dynasty occupied Vietnam). The Celestial Empire of China disdained to intervene in the internal affairs of neighboring states, unless a usurpation of the throne or a coup or other behavior that was contrary to customary rules was staged (the same reason as modern democratic states’ non-recognition of a coup government that overthrew the previous demo- cratic government). Truly stated by Zeng Jize: “The relationship between China and its dependent states is totally different from that between the West and its dependent states.”26 It is not surprising that the neighboring states respected China, took all efforts to learn from China, and were proud of adaption to Chinese culture.

On the other hand, the System was useful to adjust relations and co- ordinate the complicated interests between China, a central state, and its neighboring tributary states.27 Although the latter, small and weak, were in a subordinate position, they still would accept this type of relationship because they received enough political, economical and cultural benefits. King Ruanfushi of Vietnam said in his official letter to the Ministry of Rites of the Qing Government in 1819: “Small countries are grateful to China’s conferrence of their titles and would like to be China’s fence; China is kind and generous to other states and sticks to those ancient codes and records.”28

25) See J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 11. 26) See Zeng Jize, Zeng Huimin gong (jiegang) yi ji (A Collection of Zeng Jize’s Works), Yuelu Books 1983, p. 208. 27) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 224. 28) He Xinhua, The View of T’ien Hisn in Ancient China, Southeast Asian Studies, No. 1, 2006, p. 54.

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It should be evident that Confucian world order was a hierarchy,29 in which the interdependent relationship between China and its neighbor- ing states was asymmetrical. The Celestial Empire of China, in the core of the system, was less dependent on these tributary states than they were dependent on China. It was because of the asymmetry that China possessed a dominating power over the tributary states. However, this hierarchy was different from others, given the fact that it was not a relationship between the conqueror and the conquered, or a relationship between a sovereign state and its colony. Instead, the relationship was built on the basis of the superiority of Chinese culture and morality, which was elevated into cul- tural imperialism in order to expand Chinese culture instead of expanding its territory. In another words, the ideal way to build the Confucian world order was to influence the world by means of Chinese virtues. One core of Confucianism was to achieve peaceful evolution by means of culture, way of living and sense of values.

It has been a political ideal since ancient Qin Dynasty that culture has been used to eliminate borders. Chinese Emperor and his empire relied on much more assimilating neighboring states than conquering by force. The acceptance of China’s assimilation does not mean Chinese troop or Chinese governor in the country, it would be enough if only Chinese calendar would be officially issued and followed in the country. The principles of morality and justice be- tween China and its neighboring states have been persistent with the spirit in the Spring and Autumn Period (770 B.C. – 476 B. C.). Although the System has developed more and more complicated, it has never changed in the sense that the Ministry of Rites (Li Bu) has always been in charge. Although it is not developed into the Ministry of Foreign Affairs, it is not degraded into the Ministry of Colonial Affairs either.30

29) See J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 20. 30) See Wang Ermin, Study on the History of Contemporary Ideology in China, Huashi Press 1987, p. 210.

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II. The Collisions between Modern International Law and Confucianism

In the 17th century, modern international law started its journey of de- velopment in Europe. Meanwhile, the Qing Dynasty, in a period of great prosperity, still held fast to the tributary system, which was contrary to the new equal international relationship in Europe. In the mid-19th century, the Opium Wars broke out, and the Qing Empire’s defeat in consequence forced China to learn about modern international relations, and inter- national law, the new norms for the new international relations.31 From then on, the collision between modern international law and traditional Confucianism started.

A. World Order

Modern Western world order and China’s Confucian world order repre- sent different international relations. The latter is an unequal relationship, self-centered and regarding other states as dependent states, but it takes non-intervention with dependent states’ affairs, so it is a conservative and closed system. The former takes a form of equality, emphasizing sovereign equality, but it is an “expanding” system – unequal in its nature, the law of the jungle prevailed in the relationship with non-Christian states.

Therefore, when modern Western world order encounters China’s Con- fucian world order, they collide with each other. On one hand, capitalist states in the Western world would like to break the unequal relationship, instead of accepting the Confucian world order; on the other hand, the “expanding” nature of modern Western world order inevitably links with aggressive policies that are plotted to break China’s Confucian world order and bring it into the world order of Western states. In 1793, Lord Macart- ney’s visit, as the British official representative, was the first action toward China; however, his requirements were turned down by the Qing’s Emperor, Qianlong, because these requirements were “incompatible with the Qing Dynasty’s system”.32

Macartney’s visit signaled the incoming collision, but the Qing Empire, ignorant of the development of the world, still adhered to the all-powerful

31) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, p. 336. 32) Zhen Tianting (ed.), Materials about the History of Ming Dynasty and Qing Dynasty, Vol.2, Tianjin Renmin Press 1980, p. 376.

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Confucian world order and traditional view of China’s Celestial Empire, instead of adapting to the changed world. It is then not surprising that unprepared China would soon face a tragedy.

B. International Relations

According to traditional Confucianism, the kowtows hold a position of very great importance, meaning respect in family and social relations, and was the most grand ceremony to the emperor. In the eyes of Chinese, this etiquette is necessary for the tributary mission to show respect and good faith to the emperor.33 Moreover, the etiquette shows the supremacy of the emperor and the superiority of the “Central Empire” of China, so it is more than a ritualization, but a real part of China’s world order. When the Western missions to China were required to perform the Kowtows, they refused on the ground that the Kowtows meant unequal state relations, which had become a serious problem to Western states, and a barrier for China to develop international relations.34

It is worth mentioning that on the way to Beijing, Macartney had been treated as “British tributary mission”, instead of diplomatic envoy from an equal state by the official of the Qing Dynasty. Thus, “China’s relationship with western countries had long been built on the fictitious tributary system; the only way to conduct trade with China was to conduct tributary trade based on the Confucian world order”.35

In summary, before the Opium Wars, the relationship between the Qing Empire and foreign states was unequal. The relationship with Western states was only a trade relationship strictly limited within the tributary system. It should be noted that although this shows the Qing Empire’s self-arrogance, it was built on the basis that no state’s sovereignty was injured. In some sense, the relationship between the Qing Empire and the vassal states is more likely a political alliance, a mutually supportive relationship. This non-intervention relationship had been exemplified in the Han Dynasty’s

33) See Gerrit W. Gong, The Standard of “Civilization ” in International Society, Oxford 1984, p. 132. 34) See A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, pp. 54–55. 35) Seizaburo Shinobu, Japanese Political History, Vol.1, translated by zhou Qiqian, Shanghai Translation Press 1982, p. 89.

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policy to Xiongnu,36 an ancient nationality in China, and the Qing Dynasty’s policy to its “dependent states”, which were conferred titles by the Qing Emperor, but remained completely independent. To the Western states conducting trade in China, although the Qing government still treated them with a sense of superiority, instead of equality, the Qing government never imposed its will on these states.

C. Foreign Trade

Because of its vigilance and precaution against “barbarians”, as well as fears that the relationship with foreign states would endanger the Empire, the Qing adopted a closed-door policy, which strictly limited trade with foreign states. The Canton System limited the ports in which European traders could do business in China. It also forbade any direct trading between Eu- ropean merchants and Chinese civilians. Instead, the Europeans, generally employees of major trading companies, had to trade with an association of Chinese merchants known as the Cohong. The European presence was restricted to the Thirteen Factories on the harbor of Canton (Guangzhou). In 1684, the Emperor Kangxi of the Qing Dynasty allowed foreigners to trade with China in four cities, including Guangzhou. In 1759, Emperor Qianlong limited westerners to the port of Canton (Guangzhou), and no other area, with strict limitations. This was referred to as “the Canton System”,37 mainly including the Thirteen Factories and the guarantee system, under which foreign traders were only allowed to do business with these designated Hong-merchants who guaranteed and supervised foreign traders, but forbidden to directly deal with the Qing government. This manage- ment system of trading, under which the Hong-merchants supervised by the Qing government were supervising foreign traders, reflected the Qing Empire’s superiority over westerners, its contempt of westerners and in general Confucian view of the world order.

After the Industrial Revolution, in the 1830s–1840s the capitalist world, led by Great Britain, was eager to expand. British merchants and industrial

36) Documents of Han Dynasty, Vol. 94. 37) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 38.

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capitalists insisted that “the Canton System must be changed”,38 and “the business system under restriction is unreasonable”, consequently the British government must “immediately intervene”, “to liberate trades with China from the present shackles of the Canton System”, and place British-China trade on “a secure, favorable, decent, and constant basis”.39 That is to say, even before the Qing Empire’s ban on opium-smoking and the opium trading, Britain had fermented military invasion.

D. The Treaty Regime

After the Opium Wars, the 1842 Treaty of Nanjing between Britain and China initiated a great number of unequal treaties, which broke the Con- fucian world order and produced a new system in international relations – the Unequal Treaty Regime. The Unequal Treaty Regime, contrary to the normal principles of international intercourse, was an embodiment of encroachment on China’s sovereignty by Western powers. These unequal treaties, signed under coercion of armed forces, gave Western powers uni- lateral privileges in a variety of areas, such as the system of extraterritoriality, the trade ports, the leased territories, conventional duty, foreign customs commissioners, most-favored-nation treatment, navigation rights on coastal and inland waters, religion, education, sphere of influence, foreign troops stations, legation quarters, investment in railways, mines and industry, the opium trade, labor trade, free recruitment, establishment of radio stations and banks, and so on. These privileges, as the main content of the Unequal Treaties Regime, amounted in essence to quasi-sovereign power over China, exercised by Western countries in order to plunder China.

The Unequal Treaty Regime signified a fundamental change of rela- tionship between China and foreign countries. The world order in which “China was in a commanding position about international relations”40 had been broken by Western powers with the Unequal Treaty Regime and

38) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 179. 39) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 67. 40) See A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, p. 696.

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replaced by a new world order.41 To Western powers, these treaties “marked a new era of their policies on China and the bankruptcy of China’s close- door policy”.42 Just as A. B. Morse, an American scholar, said, “Before 1839, it was China who set up conditions for western states to follow in order to keep their relations; but, after 1860, it was western powers that imposed conditions of international intercourse over China against its will.” 43

III. The Integration of Modern International Law and Confucianism

In the mid-19th century, threatened by forces of Western powers, the Qing government had no choice but to come to compromise with Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply modern international law.

A. Introduction of Modern International Law into China

In 1864, William Alexander Parson Martin, an American missionary, trans- lated Henry Wheaton’s Elements of International Law into Chinese, titled Wanguo Gongfa (Public Law of All Nations), which was the first book on international law in Chinese, and the first formal and systematic introduc- tion of international law in China.44 His purpose of translating this book was to instruct the Chinese to observe the norms recognized by Western states, but as a matter of fact he became the first person who gave a com- prehensive introduction of international norms generally practiced among Western states. It was a progressive step to accept a theory of international

41) For example, the 1860 treaties of Tianjin and Beijing after the Second Opium War not only forced the Qing to agree foreign ministers to stay in Beijing, and forbade the Qing government to use the character of “yi” to refer to foreign states, but also required the Qing to inform all levels of governments. See Wang Tieya: the Comprehensive Collection of Old Treaties, Agreements, Regulations, etc., between China and Foreign Countries, Vol.1, Sanlian Book Press 1957, p. 146. 42) Philip Joseph, A Study in Political and Economic Relations with China, translated by Hubin, Business Book Press 1959, p. 3. 43) A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, p. 337. 44) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, p. 338.

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relations, which is contrary to the traditional tributary system, although China and the West have different purposes.

i) The Qing’s Views on International Law

In general, officials and scholars in the Qing Dynasty could be divided into two schools on international law.

One school included members such as Zheng Guanying, Xue Fucheng, Zhang Zhidong and Ma Jianzhong, who had no confidence in international law, holding that although international law could be helpful to some extent, the key still lie in China’s power and prosperity, with which China could enjoy benefits, otherwise China could not rely on international law at all.45

The other school, headed by Duan Fang, Li Hongzhang, Li Jia and Zeng Jize, held that international law was perfect and powerful, and could be relied on to keep national security and world peace. Li Hongzhang, who had long been in charge of foreign affairs, military forces, and economy, wrote in the preface to a new edition of Public Law of all Nations edited by William Alexander Parson Martin: “Public law is a law for international community, if it’s abided by, it can ensure the world peace; otherwise it will cause collisions and wars.” He held that Mr. Martin in this book “is fair and equitable … that he would like to take the book as a standard when dealing with foreign affairs.”

It should be noted that almost all open-minded scholars recognized the importance of international law.46 Many of them insisted that international law might be used to argue against western powers, but should not have a blind faith. Cao Tingjie not only explained Wanguo Gongfa (Public Law of All Nations) article by article and sentence by sentence, and composed Annotation of Wanguo Gongfa, but also submitted a written statement to the emperor suggesting international law be used to prevent wars and invasions.47

45) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, pp. 346–347. 46) See Tang Caichang, Collected Works of Tang Caichang, China Book Press 1980, pp. 44- 45. 47) Cong Peiyuan and Zhao Mingqi (eds.), Collected Works of Cao Tingjie, Vol.2, China Book Press 1985, pp. 410–411.

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ii) The Qing Government’s Application of International Law

Before the Opium Wars, Lin Zexu, a patriotic governor, tried to apply international law, especially international law on wars and aliens, in order to safeguard national independence and dignity. Lin took reasonable meas- ures based on international law to ban opium in China: firstly, he declared opium illicit; then he wrote to the British Queen to stop the opium trade; and at last, he took action to ban opium in Guangzhou.

William Alexander Parson Martin’s Wanguo Gongfa (Public Law of All Nations) was published in 300 copies, which were distributed to important coastal ports by the Tsungli Yamen (Office of Foreign Affairs) to argue against foreign states. Later on, the Qing government increasingly applied international law in foreign affairs, which seemed to help to some extent.

In the spring of 1864, Rehfues, a Prussian minister, took a naval vessel to China. He seized three Danish merchant ships as his prize. The Qing Government protested, based on these merchant ships were in China’s in- ternal waters under China’s jurisdiction.48 The Qing government’s protest, based on the view that international law and the threat to deny the Prussian minister, forced Prussia to release the Danish ships and make a compensa- tion of 1500 Yuan to the three ships.49

Another example is the China-Peru Treaty Incident. In 1874, when Peru sent an envoy to China to sign a commercial treaty, the Qing Government asked Peru to improve Chinese labor’s treatment and signed the China – Peru Convention to ensure a better treatment of Chinese labor in Peru. Besides, China – Peru Commercial Treaty included some clauses of mutual most-favored-nation treatment.

During the Sino-Japanese War in 1894, China’s declaration of war con- demned Japan’s “invasion of China had broken treaties and international law”.50 In 1899 and 1907, China sent representatives to the two Hague Peace Conferences,51 and signed the relative conventions and declarations. The

48) Beginning and End of the Management of Barbarian Affairs, Tongzhi Period, Vol. 26, p. 30. 49) See Jiang Tingbo, On Introduction of Public International Law in China, Qinghua Political Journal, 1932, pp. 61–64. 50) Liangxi (ed.), International Law, Wuhan University Press 2000, p. 36. 51) In 1899, China was represented by Yang Ru, China’s minister plenipotentiary in St. Petersburg; in 1907, China was represented by Lu Zhengxiang, ambassador plenipotentiary and extraordinary.

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above mentioned examples indicate that the Qing Government had applied international law to safeguard national interests.

B. The Unequal Treaty Regime

China was brought into the Capitalist world order by the Unequal Treaty Regime.52 The Unequal Treaty Regime originated in the 1840 Opium War, and came into being after the 1860 Opium War; after the 1895 Sino-Japanese War, it went on a groundbreaking development; the Final Protocol of 1901 signified its full development.53 The development of the Unequal Treaty Regime goes along with the collapse of Confucian world order and the invasion of Western powers.

The Unequal Treaty Regime, a child of a specific period of history, was in its nature a privilege of “quasi-sovereignty” exercised by Western powers over China. As J. K. Fairbank wrote, “unequal treaties made these privileges into a regime”.54 According to the treaty law, these treaties had become binding on China. That is why, although these treaties were against the Celestial Empire’s system, the Qing government had no choice but to regard the treaties as domestic law. Yi Xin, the head of the newly formed Tsungli Yamen, insisted “as long as we signed these treaties, we must abide by it”.55

In a word, the foreign relations in the Qing Dynasty was affected by these unequal treaties imposed by Western powers. Western powers which brought modern international law to China, however, only applied it among West- ern countries, not with China, or only applied international norms which were useful for their acts of aggression and robbing. It was the sanctity of unequal treaties that western powers stressed. Just as Prof. Cheng Tiqiang pointed out: “Western powers suppressed China first with force, then with

52) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 6. 53) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 11. 54) J. K. Fairbank (ed.), Cambridge History of China’s Qing Dynasty, Vol. 1, China Social Science Press 1983, p. 238. 55) Beginning and End of the Management of Barbarian Affairs, Tongzhi Period, Vol. 50, p. 50.

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unequal treaties, which governed all relations with China, leaving no space for the application of international law at all.” 56

Mr. Xue Fucheng enunciated that in the intercourse with Western states China could only act according to treaties, not international law. In an open letter, Guo Songtao explained that China had the right to refuse Western states’ illegal demands, but China must respect treaties. So did Ding Richang,57 a senior official in the Qing Dynasty.

These attitudes of Qing’s diplomats reflected the Qing government’s attitudes that the stress on the holiness of these unequal treaties was the common interest of China and western powers. Therefore, unequal treaties were basic regulations governing China’s relationship with foreign countries.

C. The Tsungli Yamen

Before the Opium Wars, all affairs with foreign countries, envoys and officials were in the charge of the imperial commissioners, generally the governor of Guangdong and Guangxi provinces. This caused a lot of trouble because there were no specific rules for him to follow. In 1861, the Qing established the Tsungli Yamen (Office of Foreign Affairs), which was the first diplomatic department for the Qing government and for China as well.

The Tsungli Yamen was established in conformity to the historical trend of the times. Western powers such as Britain, France and America, dis- liked dealing with the governor of Guangdong province, which they held unequal, and preferred direct contact with the central government. To the Qing government, the emperor and the central government did not know the details from the reports, false or contrary to the facts sometimes, from governors or imperial commissioners; meanwhile, the Emperor’s instruction might be delayed or ignored by officials. So, foreign ministers and diplomats repeatedly asked for intercourse directly with the emperor and the central government. The Tsungli Yamen was welcomed by foreign states, which British embassy exclaimed that they “had been working for it for decades”,58

56) Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 258. 57) See Wang Tieya, An Introduction of International Law, Peking University Press 1998, p. 397. 58) Yang Gongsu, Foreign History of Qing Dynasty, Peking University Press 1991, p. 116.

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and some Western states even said that this was “the best way for all states to keep a friendly relationship in China”.59

The Tsungli Yamen made it possible for foreign diplomats to directly make contact with the central government. However, there were still debates over how to present before the emperor of the Qing. In 1873, when Emperor Tongzhi took over the reins of the empire upon coming of age, foreign diplomats asked to make a ceremonial call and present their credentials to the emperor, with the etiquette of bowing three times to the Emperor, which was refused by the Qing. Later on, rules were set up for etiquette of receiving foreign envoys, the emperor could sit or stand, and foreign envoys should take the etiquette of bowing five times. In 1890 and 1901, disputes over the etiquette, venue and rite arose again.60 Western states believed that whether the emperor of China received foreign envoys and credentials with specific etiquette was not simply a protocol, but concerned with a state’s sovereignty and dignity according to modern international law. Similarly, the feudal dynasties, especially the Qing Empire, regarded this as the foun- dation of its foreign relations.

In 1901, the Qing Empire was forced to reconstruct the Tsungli Yamen into the Ministry of Foreign Affairs, because it “was overstaffed but unable to fulfill its responsibilities”.61 From then on, the Qing’s diplomacy began to develop in accordance with international practices, and at the same time, the Qing began to set up and train professional diplomats.62

IV. Conclusion

The Confucian view of the Celestial Empire of China and the Tributary Sys- tem lasted to the end of the 19th century. It was in the same period of history that modern international law was introduced into China and underwent ups and downs in China. Therefore, modern international law inevitably collided as well as integrated with Chinese traditional Confucianism. The

59) History Department of Qinghua University (ed.), Addendum of Beginning and End of the Management of Barbarian Affairs, Xianfeng Period, Vol. 4, p. 680. 60) See Yang Gongsu, Foreign History of Qing Dynasty, Peking University Press 1991, p. 117. 61) History Institute of Tianjin Social Science Academy (ed.), Report on U. S. Special Envoy Luan Keyi to China, pp. 5–6. 62) See Jiang Tingbo, Materials Collection on Modern Foreign History in China, Vol. 1, Busi- ness Book Press 1932, pp. 323–324.

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Qing government had been brought into a wider international community and international legal system by Western powers, but as a matter of fact, modern international law played no concrete role in the Qing’s foreign rela- tions. Instead the unequal treaty regime played a main role. At that time, international law, norms and regulations were believed to be only applied among Western states, those “civilized” or “Christian” states, not China. The only law applied to China in its foreign relations was the Unequal Treaty Regime.

In conclusion, the collision and integration of Western modern interna- tional law and traditional Confucianism in the 19th century are characterized by the following traits: 1) The collision ended with China’s compromise and retreat. To China,

modern international law had been regarded to be alien and contrary to its “system”. Even worse, it would break the Confucian view of the Celestial Empire and the tributary system. Those who proposed to adopt international law were denounced as “sinners against the Confu- cian heritage”.63 However, when modern international law was forced into China, the Qing government tended to abide by treaties, and proposed a diplomatic policy emphasizing modern international law. There were a number of high officials in position executing this policy. For example, Yi Xin proposed to deal with foreign states with good faith, and Zeng Guofan was strongly against immoral international relationships and insisted on abiding strictly to treaties.64

2) The integration of modern international law and traditional Con- fucianism was happening under the coercion of Western forces. As mentioned above, modern international law, norms and regulations did not apply to the Qing Empire, and the only law applied to China in its foreign relations was the Unequal Treaty Regime. In around 60 years, China had been forced into five wars: i) the First Opium War of 1840–1842; ii) the Second Opium War of 1858–1860; iii) the Sino- French War of 1883–1885; iv) the Sino-Japanese War of 1894–1895;

63) See Jerome Cohen, China’s Attitude Towards International Law – and Our Own, in Jerome Cohen, Contemporary Chinese Law, Cambridge 1970, p. 283. 64) See Articles and Letters of Zeng Guofan, Vol. 30, p. 49.

306 Yang / Journal of the History of International Law 13 (2011) 285–306

and v) the War of Eight Powers against China of 1900–1901.65 Then, China was forced to sign humiliating unequal treaties after each war: i) the Treaty of Nanjing after the First Opium War of 1840–1842; ii) the treaties of Tienisin and Beijing after the Second Opium War of 1858–1860; iii) the Articles on Annam after the Sino-French War of 1883–1885; iv) the Treaty of Shimonoseki after the Sino-Japanese War of 1894–1895; and v) the Final Protocol after the War of Eight Powers a against China of 1900–1901. These unequal treaties constituted the framework of the Unequal Treaty Regime in China.

3) The collision and integration of modern international law and Confu- cianism as a matter of fact were conducive to China’s modernization. If we regard the Opium Wars as historical incidents that broke the Qing’s closed-door policy, Wanguo Gongfa (Public Law of All Nations) can be regarded as a theory that broke the Qing’s benighted view of the Celestial Empire. Dong Xun, a minister of the Tsungli Yamen, in the Preface to Wanguo Gongfa, acknowledged that “Nowadays, there are many nations outside China. If there is no law to regulate them, how are nations possible?”66 Zhang Sigui also said, the key to the richness and powerfulness of Britain, France, Russia and America was that “devotion to production, agriculture, commerce and industry makes a country rich, and improvement of weapons and troops makes a country powerful”.67 This eventually led to the Self-Strengthening Movement (1861–1895), an institutional reform during the late Qing Dynasty, initiated by some ruling elites to adopt Western technol- ogy, which in turn contributed to speed up the pace of China’s modernization.

65) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 251. 66) Dong Xun’s Preface (in Chinese), in W. A. P. Martin, Public Law of All Nations, Vol.1, Beijing 1864, p. 1. 67) Zhang Sigui’s Preface (in Chinese), in W. A. P. Martin, Public Law of All Nations, Vol.1, Beijing 1864, p. 4.

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The Politics of NGOs, Human Rights

and the Arab-Israel Conflict

Gerald M. Steinberg

Summer 2011 Vol. 16, No. 2 (pp. 24–54)

Access Provided by Bar-Ilan University at 04/27/11 10:28AM GMT

Gerald M. Steinberg

The Politics of NGOs, Human Rights and the Arab-Israel Conflict

ABSTRACT

Terms such as “non-governmental organization” or “global civil society” are used to describe tens of thousands of groups, varying greatly in structure, objective, funding, impact, and other key aspects. The main influence of these organizations results from the application of “soft power” as “the ability to get what you want through attraction rather than coercion or payments”. NGOs are particularly influential on issues related to human rights and humanitarian aid. Their soft-power is based on the perception of technical expertise, combined with morality and normative goals, untainted by partisan politics or economic objectives, and projected through the media and other channels. Powerful NGOs, such as Human Rights Watch, Amnesty International, and the International Federation of Human Rights, work cooperatively in transnational advocacy networks, using the language and frameworks of human rights and humanitarian assistance, These orga- nizations spread their views and campaigns via frameworks such as the UN Human Rights Council, in alliance with diplomats and political leaders from selected governments with similar objectives. Israeli policy has been a central focus of this NGO soft-power influence from the 2001 Durban NGO Forum through the UN Goldstone Commission on the Gaza war. The central role of NGO influence is reflected in the Goldstone Commis- sion’s mandate, procedures, and reports, and the campaign to implement its recommendations. The article examines the influence of NGO activity in the political conflict, and on Israeli foreign and security policy in particular.

NGOs (non-governmental organizations) or CSOs (civil society organizations) have become important actors in the “soft power”

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 25

arena of international diplomacy. In the United Nations system, over four thousand NGOs are accredited to the Economic and Social Council (ECOSOC),1 giving them privileged access to many UN activities, includ- ing meetings of the Human Rights Council (HRC),2 the 2001 World Con- ference on Racism3 (also known as the Durban Conference), and special frameworks such as the UN Committee on Inalienable Rights of Palestinian People,4 the Committee on the Elimination of Racial Discrimination,5 and the Committee Against Torture. NGO officials speak in the sessions, meet with participating diplomats, and submit documents that are quoted in final reports.6 Diplomats, journalists, academics, and other decision-makers and opinion leaders routinely accept NGO claims, in most cases without independent verification.

NGOs, both individually and through wider “transnational advocacy networks” or a “global civil society” framework, are influential in many fields, from environmental issues to human rights and humanitarian aid. Their moral claims are a major source of this influence, as reflected in Chan- dler’s reference to NGOs as “oriented around universal beliefs and motiva- tions”.7 Similarly, Keck and Sikkink argue that while “governments are the primary guarantors of rights, they are also their primary violators”, leaving individuals or minorities with “no recourse within domestic political or judicial arenas”. On this basis, they analyze the ways in which domestic NGOs “. . . bypass their state and directly search out international allies to bring pressure on their states from the outside.”8

In the areas of human rights and international aid, Amnesty Interna- tional (AI) was founded to campaign on behalf of “prisoners of conscience” and the abolition of torture, mainly in Eastern Europe and Africa.9 Human Rights Watch (HRW)10 grew out of “Helsinki Watch”, founded in the 1970s as a research-oriented alternative to AI. With the support of the United States and other Western governments, these NGOs gained entry into and influence in the UN and other political institutions. As their budgets grew, human rights NGOs became powerful international actors.

With the end of the Cold War, these NGOs defined new objectives, claiming to be experts in asymmetric warfare and advanced military tech- nology, as well as the arbiters of international law, human rights,11 military necessity, and proportionality. This transformation, and the political foun- dations of international legal institutions ( particularly the UN) and their sources of legitimacy, in contrast to domestic judicial institutions, allowed NGOs to increase their influence in the media and in the diplomatic sphere.12

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Thus, NGOs constitute an unregulated and nebulous sector described as “fuzzy at the edges”,13 but at the same time, they are highly influential. Journalists, UN officials, and academics repeat the technical claims and military analyses presented by NGOs such as HRW and AI without ques- tion. Revelations regarding the activities of HRW’s former senior military analyst, Marc Garlasco, the lack of detailed public information regarding his actual expertise, and the contradictions in the technical and military claims featured in his reports, illustrate the problematic credibility.14

These limitations are often masked by the NGO “halo effect”, through which groups perceived to promote “good” principles are protected from scrutiny by the image of objectivity and morality. This “halo effect” com- pensates not only for the lack of accountability but also for the lack of expertise in the military and diplomatic spheres in which many NGOs are active. According to Willets, “There is a widespread attitude that NGOs consist of altruistic people campaigning in the general public interest, while governments consist of self-serving politicians. . . . such an attitude should not be adopted as an unchallenged assumption . . .”15 Habibi demonstrates that NGOs that deal with human rights elicit “instinctive support amongst the general public”,16 and Heins shows that NGOs create “symbolical victims” and then portray themselves as altruistic rescuers.17

This process is enhanced by the dominance of post-colonial ideology among NGO officials who give preference to “victims” of Western impe- rialism and capitalism while criticizing liberal democratic societies. The ideological tilt among NGOs is reflected in their publications and analyses, particularly with respect to the application of international law and human rights claims. Kenneth Anderson noted that groups such as HRW, “focus to near exclusion on what the attackers do, especially in asymmetrical conflicts where the attackers are Western armies” and tend “to present to the public and press what are essentially lawyers’ briefs that shape the facts and law toward conclusions that [they] favor . . . without really presenting the full range of factual and legal objections to [their] position.”18

These critical perspectives will be shown below to be valid for a number of powerful international NGOs including HRW, AI, FIDH (France), Christian Aid (UK), and the Geneva-based International Commission of Jurists (ICJ). These and many other organizations lack the transparency, accountability, and checks and balances designed to mitigate and redress abuse. In parallel they have been shielded by the “halo effect”, which enhances credibility and the image of altruism.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 27

NGOs AND SOFT POWER

Notwithstanding these limitations, and in some ways as a result of them, NGOs exert a great deal of political power, particularly regarding moral and legal issues. As Blitt notes, NGOs “identify their primary goals as monitor- ing and reporting of government behavior on human rights . . . building pressure and creating international machinery to end the violations and to hold governments accountable.”19

This influence is based on the application of soft power, “the ability to get what you want through attraction rather than coercion or pay- ments”.20 Nye’s analysis includes the realization that “NGOs and network organizations have soft power resources and do not hesitate to use them.”21 Among those resources, the perception of expertise, and commitments to a universal morality untainted by partisan politics or economic objectives, are crucial for these human rights NGOs.

The Internet and advanced information technologies have greatly enhanced NGO soft power. NGO networks with hundreds, and in some cases, thousands of member organizations, “are able to focus the attention of the media and government on their issues”.22 The extensive resources available to global NGOs permit them to engage in lobbying campaigns and to mobilize mass demonstrations and media visibility that have major impacts on governments and policies.23

For Europe, soft-power is not a residual or secondary element, but rather is often the primary vehicle to exert international influence, and the NGO framework is a central vehicle for exercising this power. The term NGO notwithstanding, European governments and the European Union (EU) provide hundreds of millions of euro annually to non-governmental organizations in order to promote specific policy goals.24

Such funding is central to European policy in the Southern Mediter- ranean and with respect to Israeli-Arab peace efforts,25 and has greatly enhanced NGO budgets, power, and influence. Among the key frame- works that provide funds to NGOs for political activities is the European Instrument for Democracy and Human Rights (EIDHR), with an annual budget of €160m, under the auspices of the Europe Aid Cooperation Office. In the Arab-Israeli zone, however, many such NGO projects, as demonstrated below, focus primarily on the conflict, and promote the Palestinian narrative.26

As a result, and in contrast to universality and the “fair application of human rights principles”, political NGOs focus on a smaller group of targets, where funding is available and their influence is amplified.

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Israel has become the primary target of these powerful political and ideo- logical NGOs, in parallel to the agenda of the Organization of the Islamic Conference (OIC), which dominate the UN human rights frameworks.

NGOS AND THE UN IN THE ARAB–ISRAELI CONFLICT

Following the end of the Cold War, powerful NGOs such as HRW and AI sought new issues and means of maintaining and increasing their influ- ence. Kaldor refers to the emergence of a “global civil society” resulting from “a growing consciousness of a set of duties towards mankind, which developed as a consequence of the wars of the 20th century.” The increased role of NGOs in conflict regions was justified by moral concepts such as the “duty to interfere (Devoir d’Ingerence)” in the context of humanitarian disasters.27

In parallel, the Islamic bloc28 expanded its influence in UN human rights mechanisms. In his detailed analysis, “Human Rights and Politicized Human Rights: A Utilitarian Critique”, Habibi cites the “hundreds of one-sided resolutions” that have emerged from the UN General Assembly, Security Council, Economic and Social Council Commission (ECOSOC), Human Rights Commission (HRC), and Commission on the Status of Women as evidence that “At the UN, Israel is singled out for more intense scrutiny and held to higher standards than any other country.”29

The network of human rights NGOs has played a critical role in contributing to and reinforcing this intense focus on Israel in the UN human rights structures. Following the collapse of the Oslo negotiations and during the period of violence between 2000 and 2004, referred to as the “second intifada”, NGOs with ECOSOC status frequently supported the Islamic governmental delegations that dominated the Human Rights Commission.30 The NGO statements, testimonies, and “expert reports” highlighted allegations against Israel and repeatedly called for “independent investigations”. Major international NGOs, including HRW, AI, the ICJ, and FIDH (France) submitted numerous reports and statements to the UN Human Rights Commission (UNHRC) during this period.

These publications often cited reports by Palestinian NGOs, such as the Palestinian Center for Human Rights (PCHR), Al Haq, and Al Mezan, which, in turn, relied on claims made by Palestinian witnesses, which could not be verified. They also tended to ignore or downplay Israeli human rights perspectives, including the killing of over 1000 civilians in terror attacks, and the wider context of the conflict.31 As Heins notes, in

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 29

such NGO reports, it is “not the event, but the event’s telling that counts”, and “The process of establishing the facts of victimhood plays itself out through language (including pictures), which implies that it is inherently contestable.”32

The high-profile 2001 UN Conference on Racism, held in Durban, consisted of three frameworks of which the NGO Forum was the most influential. This Forum included thousands of representatives from an esti- mated 1,500 organizations, whose participation was enabled by extensive funding provided by the Ford Foundation,33 the UN, as well as govern- ment programs in Canada and Western Europe. In addition to having their costs paid, the high level of NGO participation in the Durban Conference is also explained by the impact provided by UN recognition, legitimacy, and on this basis, increased prospects for additional funding. Heins notes the ease with which the Durban mechanism enabled indi- viduals to “mutate into NGOs, even for a few days by just filling out and submitting forms that are available as PDF downloads.”34 The Durban Forum, as well as the strategy that followed, is an important example of a powerful NGO-based transnational advocacy network operating in the soft-power dimension. The Ford Foundation played an important coor- dinating role for NGO advocacy network, particularly in assisting Pales- tinian groups,35 while powerful global actors such as HRW and AI were central in forming the agenda. In addition, the South African National NGO Coalition played a central role, working with Palestinian NGOs, including MIFTAH, the Palestinian Committee for the Protection of Human Rights and the Environment, BADIL, Al Haq, and the Palestinian NGO Network (PNGO).

The draft texts were composed during a series of regional and prepa- ratory conferences, including one in Tehran during February 2001, from which Israelis and Jewish delegates were excluded by the Iranian govern- ment.36 The resolutions included references to “holocausts and the ethnic cleansing of the Arab population in historic Palestine” and of the “racist practices of Zionism and anti-Semitism”.37 In Durban, the NGO Forum was also physically intimidating for Jewish and Israeli participants. David Matas and others report a “steady stream of incidents” directed at the members of the Jewish caucus. “On entry to the forum grounds, every participant was accosted by virulent, anti-Semitic slogans, pamphlets, slurs and chants”, including “kill all the Jews”.38 Copies of core anti-Semitic literature, such as the “Protocols of the Elders of Zion” and cartoons of “hooked nose” Jews with “pots of money surrounding their victims” were distributed by the Arab Lawyers Union and similar groups.39

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In this atmosphere, and with the active participation of “mainstream” NGOs such as HRW and AI, the NGO Forum adopted a final declara- tion that featured attacks on Israel. (Similar language was removed from the text of the governmental forum of the Durban Conference, following a walkout by American and Israeli delegations, and intense negotiation among the remaining delegates.)40 Article 164 asserted that, “Targeted victims of Israel’s brand of apartheid and ethnic cleansing methods have been in particular children, women and refugees.” Article 425 advocated “a policy of complete and total isolation of Israel as an apartheid state . . . the imposition of mandatory and comprehensive sanctions and embargoes, the full cessation of all links (diplomatic, economic, social, aid, military coop- eration, and training) between all states and Israel.” In this spirit, Article 426 condemned states that “. . . are supporting, aiding and abetting the Israeli apartheid state and its perpetration of racist crimes against humanity including ethnic cleansing, acts of genocide.”41

Korey refers to the Ford Foundation’s role in the Durban conference as a “stumble”, noting that “not every initiative of the foundation has gone well . . . Durban turned out to be a propagator of vulgar anti-Semitism.” Previous “world conferences on racism” had focused on South African apartheid. In the case of Durban the Arab and Islamic regimes, with the assistance of the NGO networks, turned their attention and resources to attacking Zionism.42 The combined NGO/UNHRC “Durban strategy”, was implemented in March 2002 following a series of mass Palestinian terror attacks followed by the IDF operation Defensive Shield.

Palestinian officials claimed that the IDF had committed a “massacre” in the Jenin refugee camp.43 NGO officials quickly repeated these claims. On 16 April Le Monde cited reports by HRW concluding that Israel had committed “war crimes”44 and demanded the appointment of an “inde- pendent investigative committee”. Shortly afterwards, an AI statement declared, “The evidence compiled indicates that serious breaches of interna- tional human rights and humanitarian law were committed, including war crimes”, and demanded an immediate inquiry.45 Other influential NGOs issued similar statements, reports, and condemnations, including Caritas (a Catholic group),46 as well as Palestinian NGOs funded by European governments, such as MIFTAH.

HRW was particularly active in this campaign,47 issuing 15 press releases and reports condemning Israel in 2002.48 In May its 50 page report, “Jenin: IDF Military Operations”, was based largely on unverifiable “eyewitness testimony” from Palestinians.49 One sentence mentioned the justification for the operation, noting that “The Israelis’ expressed aim was

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 31

to capture or kill Palestinian militants responsible for suicide bombings and other attacks that have killed more than seventy Israeli and other civil- ians since March 2002.”50 In contrast, HRW’s detailed indictment against Israel included allegations that “IDF military attacks were indiscriminate . . . failing to make a distinction between combatants and civilians . . . the destruction extended well beyond any conceivable purpose of gaining access to fighters, and was vastly disproportionate to the military objectives pursued.” It alleged that the IDF had used Palestinian civilians as human shields “to screen Israeli soldiers from return fire”. It also referred to the death of Munthir al-Haj, acknowledged as an “armed Palestinian militant”, as a case of “murder” and “willful killing”.51 (Such claims, categorizations, and legal analysis by human rights NGOs in the context of armed conflict have been shown to be inconsistent and highly problematic.)52

Following HRW’s lead and other NGOs, the UN Report similarly exculpated the Palestinian side from all responsibility. It stated that, “Israeli military retaliation for terrorist attacks was often carried out against Pal- estinian Authority security forces and installations. This had the effect of severely weakening the Authority’s capacity to take effective action against militant groups that launched attacks on Israelis.”53 (The UN report also differed from HRW and other NGOs on some significant points, such as noting that, “Armed Palestinian groups sought by the IDF placed their combatants and installations among civilians. Palestinian groups”, and their tactics, “targeted at IDF personnel but also putting civilians in danger.”54)

After Jenin, the NGO networks supported and often led UN con- demnations of Israel that reflected the Durban strategy, particularly in the human rights frameworks. In parallel, HRW also supported the sanctions and boycotts of the Durban NGO declaration. In a CNN interview, HRW executive director Kenneth Roth called for “conditioning” or cutting US aid funds to Israel.55 In October 2004, HRW published “Razing Rafah”, based on unverifiable Palestinian allegations and unsubstantiated security judgments. This also provided the foundation for the participation of HRW officials (specifically head of the Middle East and North Africa division, Sarah Leah Whitson) in anti-Israel boycott campaigns.

In parallel, NGO soft power was a significant factor in sessions of the UNCHR—both the biannual and emergency sessions. The 58th Ses- sion in 2002 included the participation of approximately 300 NGOs, many reflecting pro-Palestinian positions, including PCHR,56 Al Haq, and others.57 On 2 April 2002, during the IDF Operation Defensive Shield in Jenin, Al-Haq charged that, “The Israeli government has launched a new

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campaign of aggression against the Palestinian people that threatens the lives of the whole of the civilian Palestinian population.”58 It also repeated the demands of PLO head Yassir Arafat for international intervention, through “. . . immediate steps to ensure protection for the civilian Palestin- ian population, and . . . an immediate end to the illegal Israeli occupation of the Palestinian Territories. . . .”59

Much of the language included in NGO statements is often reflected in the UNCHR resolutions and reports. Israel was condemned for “. . . gross, widespread and flagrant violations of human rights in the occupied Palestinian territory, in particular regarding the violation of the right to life, . . . the disproportionate and indiscriminate use of Israeli military force against the people of Palestine and its leadership”, and numerous other allegations.60 This text closely followed the submissions from AI, PCHR, Al Haq, and other NGOs. As in the case of the NGO statements, the UN report included only minor references to the numerous terror attacks against Israelis.

In 2006, in response to the widely perceived bias of the existing system, the Human Rights Council was created to replace the Human Rights Commission.61 However, this institutional reshuffling had little impact on the role of the NGO community, and the First Special Council Ses- sion in July 2006 followed the earlier pattern. Statements by officials from AI, HRW, World Vision International, the ICJ, and others again made accusations holding Israel responsible for “deliberate and disproportionate attacks” against the Palestinians amounting to “war crimes”, and “collective punishment”62 in Gaza.

The UN Committee on the Exercise of the Inalienable Rights of the Palestinian People provides another venue for NGO involvement in this agenda. It holds numerous public conferences and “civil society” seminars in which NGO officials play a central role. NGO statements often reflect soft power and the Durban strategy, including allegations of “apartheid”,63 “ethnic cleansing”,64 and calls to impose “sanctions, boycotts and divest- ments”.65 Former Australian Foreign Minister Alexander Downer noted “concern at the high level of UN secretariat resources devoted to anti-Israeli activity”, explicitly citing the UNCEIRPP.66 According to a report by the Anti-Defamation League (ADL), the committee is “the single most prolific source of material bearing the official imprimatur of the UN which maligns and debases the Jewish State”, and noted that this committee is “the only committee in the UN devoted to a specific people”.67 These NGO confer- ences take place in venues designed to provide public and media expo- sure, such as Vienna, Geneva, Beijing, Jakarta, and the EU Parliament in

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 33

Brussels. In the past decade 148 NGOs registered with the CEIRRPP that have issued statements or participated in these sessions.68

NGOs that focus on human rights are also central in the activities of the UN Committee on the Elimination of Racial Discrimination, whose formal mission is to monitor implementation of the International Covenant on the Elimination of All Forms of Racial Discrimination. A February 2007 session featured documents and updates by six NGOs whose submissions were placed on the Committee’s website and also formed a major part of the final report.69 A joint submission from Palestinian NGOs Al Haq, BADIL, and Al Mezan, as well as some Israel-based NGOs with similar agendas (ICAHD and Mossawa), characterized Palestinians as “indigenous” while branding Jews as “colonizers” and claimed that Israel engaged in “forced expulsions” of the indigenous population. This submission also included a comparison of the State of Israel to Nazi Germany.70

Israel’s separation or security barrier, which was constructed in response to large scale terror attacks, was also a central focus of UN and NGO coop- eration. In 2004, NGOs published a number of press releases, letters, and reports calling on the UN to take action, and demanding that the US and the EU penalize Israel.71 NGOs active in this campaign included HRW, AI, Christian Aid, World Vision,72 the Palestinian Environmental NGO Network (PENGON), the Palestinian Grassroots Anti-Apartheid Wall Campaign, Palestinian affiliates of the ICJ, the UK-based War on Want, the Mennonite Central Committee, and Medicine du Monde (France). Christian Aid lobbied the British government, including a press release entitled “Why the Israeli ‘barrier’ is wrong”, which referred to Palestinian hardships inflicted by Israel’s “land grab”.73

NGO activity supported the diplomatic campaign led by the OIC that resulted in a UNGA resolution, referring the issue to the ICJ for an “advisory opinion”. The ICJ issued its advisory opinion in July 2004. As anticipated, the majority claimed that the Israeli “separation barrier” was a violation of international law, although a dissenting opinion by Judge Buergenthal pointed out the inconsistencies and errors in the majority view.74

The UNHRC-NGO activities targeting Israel were also prominent during the second Lebanon War (12 July–14 August 2006), which coincided with the Second Session of the UNHRC. Statements were submitted by Badil, AI, ANND (Arab NGO Network for Development), HIC (Habitat International Coalition), and others. Most NGO statements ignored the context of the conflict, including the Hezbollah attacks that led to the Israeli response.

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This cartoon won the BADIL (Palestinian NGO Resource Center for Palestinian Residency and Refugee Rights) 2009–10 “Al Awda Award.” The NGO receives

funding from a number of European governments.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 35

NGO officials, in support of the Arab and Islamic delegations (Egypt, Saudi Arabia, Indonesia, Qatar, Bahrain, Pakistan, and others) again pressed the UNHRC to establish a commission of inquiry, with a mandate focusing only on allegations against Israel. The Commission claimed that investigat- ing Hezbollah “would exceed the Commission’s interpretive function and would be to usurp the Council’s powers”.75 The report repeated the language of the NGOs in their written statements, including accusations of “collec- tive punishment” and “excessive, indiscriminate and disproportionate use of force by the IDF”.76

In 2008, planning began for the “Durban Review Conference” (DRC) scheduled for April 2009. Chaired by Libya and Iran, with the support of the OIC, the expectation was that this would repeat and expand on the 2001 conference. The NGO network sought to play a central role in these activities, including promotion of an NGO Forum modeled on the Durban experience.77 However, in January 2008, the Canadian government (led by the Conservatives, which were in opposition during the 2001 conference) declared that it would not participate in Durban II. In November, Israel announced a similar decision, followed in early 2009 by the US, Italy, Hol- land, and others. In response, a number of NGOs expressed sharp opposi- tion to these decisions not to participate. HRW condemned the delegations for “undermining the conference”, arguing that there was “no justification for the decision”78 and pressed for “engagement”.79 Al-Haq accused Israel of creating an “apartheid regime in the Occupied Palestinian Territories”.80

The intense debate concerning the role of NGOs in this process and the intense criticism of the 2001 experience led to a decision against hold- ing an NGO Forum in the 2009 Review Conference. On this issue, the delegates and UN officials agreed not to provide official support for this activity, and major NGO funders, including the Ford Foundation and the Canadian government adopted similar policies. As a result, the NGO role and influence in the review Conference was relatively minor and restricted largely to off-site gatherings that were sparsely attended.81

THE NGO ROLE IN BDS AND “LAWFARE”

In the decade since the 2001 Durban NGO Forum, NGOs have adopted a number of different tactics for implementing the call for “a policy of complete and total isolation of Israel as an apartheid state”.82 The goal of imposing “mandatory and comprehensive sanctions and embargoes, the full cessation of all links (diplomatic, economic, social, aid, military

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cooperation, and training) between all states and Israel”83 has become the basis for a campaign of boycotts, divestment, and sanctions (BDS) mod- eled on the South African experience. Allegations regarding human rights and international law violations are used as a prime tool of the Durban strategy.

There are numerous examples in which NGOs have featured promi- nently in BDS campaigns. These include academic boycott efforts, par- ticularly in the UK, and North American and European church-based anti-Israel divestment resolutions, and other forms of sanctions efforts, including calls for arms embargoes.84 For example, in the UK academic boycott movement, which initially began within the framework of the Association of University Teachers (AUT),85 the language of the boycott resolutions was taken from PNGO. The AUT boycott effort was initiated in 2002, as part of the Jenin campaign to demonize Israel, and was revived in the context of the separation barrier campaigns and the ICJ advisory decision. PNGO co-sponsored a conference in December 2004 in London to focus on this issue.86 Powerful groups such as War on Want continue to promote academic boycott efforts in the UK and elsewhere.

In parallel, the NGO network also promoted anti-Israel divestment resolutions and debates among Lutheran, Anglican, and other Protestant church groups. This campaign involves many Palestinian NGOs, such as MIFTAH, BADIL, Al-Mezan (based in Gaza), Association for the Defence of the Rights of the Internally Displaced (ADRID), Ittijah, and others. In addition, the public relations effort behind divestment has gained visibility through the activities of Christian-based NGOs, such as the Mennonite Central Committee (based in North America and a recipient of significant Canadian government funding), the Sabeel Ecumenical Liberation Theol- ogy Centre (based in Bethlehem), and groups such as Christian Peacemaker Teams and Ecumenical Accompaniment Programme in Palestine and Israel (EAPPI).

HRW was also active in the BDS campaigns, both as a major source of allegations against Israel, and in an activist role. The 2004 publication of “Razing Rafah” and the accompanying press conference87 at Jerusalem’s American Colony Hotel provided the basis for HRW’s involvement in the effort to force Caterpillar to end sales to Israel. This activism included emails and letters, as well as participation in rallies. (AI and other NGOs were also involved in these activities).88 The publicity surrounding the Caterpillar boycott campaign added to the soft power war against Israel. Although Caterpillar rejected the pressure, the overall impact was to increase the visibility of delegitimization based on boycott and sanctions.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 37

A leader of BDS activities in Scandinavia has been the Coalition of Women for Peace (funded by a number of European governments and the New Israel Fund). Their lobbying played an important role in the decision by the large Norwegian government employees’ pension fund and other groups to sell shares in Israeli firms. The radius of BDS campaigns is widen- ing. In 2009, Belgian municipalities boycotted a bank due to its business dealings in Israel.89 The 2009 Toronto Film Festival, which included a number of films related to the 100th anniversary of the founding of Tel- Aviv, was the focus of a well-organized boycott campaign.90 A prominent director pulled out of the festival in protest of the focus on Tel-Aviv, and he was supported by a number of well-known artists. Similarly, the organizers of the 2009 Edinburgh International Film Festival returned a £300 gift from the Israeli embassy following protests.91

Events such as “Israel apartheid week” (IAW) on university campuses are closely related to the BDS and demonization process, and NGOs are actively involved in these frameworks as well. In 2010, NGO speakers at IAW events included officials from ICAHD ( Jeff Halper on “Israeli Apartheid: The Case for BDS” in Glasgow; and on “Israel and Palestine hurtling Towards Apartheid” at UC Santa Cruz), the Alternative Informa- tion Center, PCHR, Addameer, and Badil (Nidal al-Azza on “Refugees and Israel’s Apartheid Regime” at Al Quds University). Many campuses screened NGO videos, such as “Breaking the Silences”, “Israeli Soldiers talk about Hebron”, and the “Occupation 101” video, which includes interviews with leaders from HRW, Rabbis for Human Rights, ICAHD, B’Tselem, and the Gaza Community Mental Health Programme.

NGOs are also prominent in the “lawfare” campaigns used to further the delegitimization of Israel. This strategy involves exploiting the terminol- ogy of international human rights and humanitarian law by accusing Israel of “war crimes”, “crimes against humanity”, and other violations.92 The lawfare strategy was included in the NGO Forum of the 2001 Durban Con- ference which called for the use of legal processes against Israel including the establishment of a “war crimes tribunal”.

Taking advantage of universal jurisdiction statutes in a number of Western countries, NGO-led lawfare cases in national courts, as distinct from international frameworks such as the ICJ and ICC, are often filed in venues where there is no connection between the forum and the parties and events at issue. Examples include the 2001 suit in Belgium against Ariel Sharon for the Sabra and Shatila massacre; suits in the UK against Doron Almog (2005) for the 2002 targeted killing of Hamas leader Salah Shehade, and against Ehud Barak (2009) and Tzipi Livni (2009) for the

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Gaza war; the 2008 case in Spain against seven Israeli officials (also on Shehade); and the 2005 civil suits in the US against Avi Dichter (citing Shehade) and against Moshe Ya’alon for a 1996 operation in Lebanon against Hezbollah.

Cases have also been filed against those doing business with Israel such as the US lawsuit brought by the parents of Rachel Corrie against Caterpillar (2005); the 2008 case in Canada against companies involved in West Bank construction, and two suits filed (2006, 2009) against the UK government to block arms export licenses to companies doing business with Israel. While all the lawfare cases referenced here have been dismissed in the preliminary stages, the propaganda impact and damage have been significant.

NGOs leading anti-Israel lawfare include PCHR (cases in Spain, the UK, New Zealand, and the US over the Shehade killing and the Gaza War), the New York-based Center for Constitutional Rights (Dichter, Ya’alon, Corrie cases), Al-Haq (Barak, Canada cases), Al Mezan (Barak case), Yesh Gevul (Shehade cases in the UK) and Adalah (Spain case). Michael Sfard, Israeli attorney and legal advisor for Yesh Din, Breaking the Silence, and others, is also a prominent actor working with Al Haq and other NGOs on the 2008 case in Canada, and potential filings in the UK.

NGOs, THE 2008–9 GAZA WAR, AND THE GOLDSTONE REPORT

The renewed hostility in Gaza that erupted into full scale conflict on 27 December 2008 was accompanied by an expansion of the combined UN-NGO soft power campaign targeting Israel, in which the full range of tactics that had been developed prior to the Durban Conference were implemented.93 NGOs including HRW and AI condemned the Israeli operation and presented a chronology that downplayed or erased the con- text of Hamas attacks that preceded the Israeli incursion. The NGOs were also central in the Special Session of the UNHRC held in January 2009.

Statements from Al-Haq, and the Mouvement contre le Racisme et pour l’Amitie entre les Peuples (MRAP), declared Israel guilty of “war crimes” and “crimes against humanity”. AI, HRW, and ICJ accused Israel of “indiscriminate” and “disproportionate” attacks.94 Libyan-linked Nord Sud XXI charged Israel with participating in an “intentional effort ongoing for more than 60 years by an illegal occupier and its allies to destroy the Palestinian people”,95 with the aim to commit genocide.96

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 39

As in the 2006 Lebanon War, the major international NGOs—par- ticularly HRW and AI—joined with the OIC states that dominate the council, as well as the Palestinian leadership in campaigning for establish- ment of an inquiry. The Council adopted Resolution S-9/1 on 12 January 2009, creating the foundation for what became the Goldstone inquiry, with the mandate of investigating “all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Terri- tory, particularly in the occupied Gaza Strip.”97 (Goldstone was a member of the board of HRW, and following HRW’s advocacy, had condemned Israel during the war. He resigned from HRW after the appointment to head the commission.) Hamas violations, such as massive use of human shields,98 indiscriminate rocket fire,99 and the 2006 kidnapping of an Israeli soldier (Gilad Shalit), were not mentioned by the NGOs or the resolution establishing the fact-finding mission.100 This special session and its outcome reiterated the disproportionate NGO/UNHRC emphasis on the Arab-Israeli conflict. Between 24 December 2008 and 13 January 2009, roughly the same period as the Gaza fighting, over 600 villagers were mas- sacred by Ugandan rebels in the Congo. Yet this was not included in the NGO/UNHRC agenda.

After the Goldstone commission was established, NGOs provided the substance of its subsequent report. A number of Israel-based advocacy groups, including the Public Committee Against Torture in Israel, Physi- cians for Human Rights-Israel, and Adalah participated in a May 2009 NGO “town hall meeting” in Geneva held by the Goldstone Commission. A representative from PCATI spoke at the public sessions of the Commis- sion in July 2009, referring to “collective punishment” and “[Palestinian] martyrs”.101 In addition, the Association for Civil Rights in Israel, Bimkom, Gisha, HaMoked, PCATI, PHR-I, and Yesh Din submitted a joint state- ment to the Commission.102 The text does not address alleged Hamas war crimes, “. . . but rather offers our own distinct perspective—human rights violations for which Israel must be held accountable.”

This NGO document also makes entirely speculative assertions about the motivation for the IDF operation against Hamas, claiming that “To the extent that this was planned as a punitive operation which main purpose was not the achievement of actual military objectives, but the inflicting of deliberate damage as a deterrent and punitive measure.” The submis- sion also accuses the IDF of having “deliberately and knowingly shelled civilian institutions”, supporting the legal claim that “Israel deviated from the principle that allows harm only to military objectives, and carried out

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strikes against civilian sites in an effort to achieve political ends.” References and evidence are missing for many accusations, such as the allegation that “[m]any prisoners . . . were held in pits in the ground . . . apparently dug by the army”; details are sourced to “information in our possession”.103

Goldstone’s report,104 published on 15 September 2009, strongly reflected these NGO submissions and statements. The text referenced over 50 NGOs, including 70 references each for B’Tselem and the PCHR, 27 for Breaking the Silence, and more than 30 each for Al-Haq, HRW, and Adalah. Significantly, many of these citations refer to speculative issues unrelated to the conflict in Gaza, seeking to brand Israeli democracy as “repressive”, and to widen the scope of the condemnations and the resulting political campaigns.

For example, closely following the HRW and AI, which rejected Israeli claims that Hamas used mosques for military purposes, paragraph 495 claims that: “Although the situations investigated by the Mission did not establish the use of mosques for military purposes or to shield military activities, the Mission cannot exclude that this might have occurred in other cases.” IDF video material clearly documented mosques being used as weapons depots and even the site of a Hamas anti-aircraft position.105

Similarly, the discussion of international legal claims106 mirrored the NGO rhetoric, particularly with respect to collective punishment, distinc- tion and proportionality, and the use of human shields. Goldstone adopted the disputed legal claim published by the PLO Negotiation Affairs Depart- ment, and promoted by NGOs such as B’tselem, HRW, and AI, that Gaza remained “occupied” after the Israeli 2005 disengagement.107

Civilian casualty claims were also based largely on NGO allegations and estimates, with references to PCHR, HRW, AI, B’tselem, and others, and asserting (erroneously) that the “data provided by non-governmen- tal sources with regard to the percentage of civilians among those killed are generally consistent . . .”108 B’Tselem’s data differ significantly from PCHR’s, though both are unverifiable. PCHR’s list characterizes Hamas military figures, including Nizar Rayan and Siad Siam, as civilians.109

After the publication of the Goldstone report, and its recommenda- tions, the NGO network campaigned for the adoption of its punitive rec- ommendations, particularly in the US and Western Europe. This lobbying effort continues, with as yet undetermined results.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 41

NGO SOFT POWER IMPACT ON HARD POWER

While academic boycotts, NGO campaigns, and UN condemnations and diplomatic scoldings are sometimes dismissed as of little consequence in terms of “hard power” dimensions of security, weapons and military tech- nology, intelligence, economic factors, etc., the overall impact of the soft- power targeting is significant and growing. Using the language and mecha- nisms of human rights and international law, the objective is to apply the South African model to Israel, allowing the NGOs to create “symbolical victims” and portraying themselves as altruistic rescuers of the Palestinians, to apply the framework developed by Heins.110 The 2001 Durban NGO Forum declaration, adopted in South Africa, and proclaiming the goal of “the complete international isolation” of Israel highlights this linkage. As Irwin Cotler has stated, “A conference that was to commemorate the dis- mantling of apartheid in South Africa turned into a conference that called for the dismantling of Israel as an apartheid state.”111

Following efforts to implement this objective, in which the power- ful NGO transnational advocacy network plays a leading role, increasing evidence points to Israel’s growing international isolation. Although the “occupation” and settlements are cited as motivations for the campaign, the one-sided narrative places responsibility exclusively on Israel, and treats Palestinians as victims, often without examining behavior. This reinforces the view that the target is Israel’s existence as a sovereign Jewish homeland, and is not limited to the post-1967 dimensions of the conflict.

Anthony Julius argues that the new anti- Zionism “is predicated on the illegitimacy of the Zionist enterprise” that views Israel as having been “established by the dispossession of the Palestinian people . . . enlarged by aggressive wars waged against militarily inferior forces, and . . . maintained by oppression and brutality.”112 Julius as well as Christopher Mayhew and Michael Adams conclude that these views promote the argument that, “It is impossible to justify the continuance of the State of Israel” on “legal, historical or moral grounds”.113

The growing hard-power impacts of these soft-war campaigns, led by the NGOs, and based on human rights and international legal claims can be seen in a number of dimensions. Israeli links with Europe on security, and, to a growing degree, also on economic matters, have been negatively affected. There are also indications that this process is extending to the US and elsewhere. In the military and security dimensions, including operational considerations, the impact can be seen in a number of recent examples. In the 2006 Lebanon war, the international outcry and pressure

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originating with HRW’s false allegations regarding the number of civilian casualties in Qana, and amplified by journalists and political leaders, led PM Olmert to order a 48–hour halt in Israeli air strikes. According to Harel and Issacharoff, the Qana incident “was the best gift that (Hezbollah leader) Nasrallah could have hoped for as Hezbollah now had Arab and interna- tional backing and had no reason to accept the terms of a cease fire.”114 This allowed Hezbollah to redeploy its forces and probably extended the war.

These campaigns based on allegations of violations of international law are also impacting Israel’s ability to acquire needed weapons and related equipment. International NGOs have been leading the calls for arms embargoes against Israel based on allegations of human rights viola- tions during the “second intifada”,115 the 2006 Lebanon War,116 and the 2008–09 Gaza conflict.117 In the UK, AI and other NGOs testify frequently before UK parliamentary committees involved in arms exports, and their reports, accusing Israel of war crimes and deliberate attacks against civilians, are highlighted by major British media outlets.118

In 2000, the UK government began to reconsider the sale of F-16 parts directly to Israel. While a 2002 government decision allowed F-16 and Apache helicopter parts to be sold to a third party for incorporation and onward transfer to Israel, this was also halted (albeit unofficially) following the 2006 Lebanon War.119 During the 2008–09 Gaza fighting, British media and politicians emphasized AI’s claims that weapons used by Israel to carry out allegedly unlawful attacks included British components. According to the BBC, this report triggered the British government’s deci- sion to undertake a review of all military export licenses to Israel.120 On 10 July 2009 the British government revoked five licenses for the sale of Saar 4.5 naval parts to Israel. Ha’aretz cited “heavy pressure” from NGOs and MPs in explaining this decision. The British government did not provide evidence that the Saar gunboat was used in a way that violated interna- tional law, but rather “investigated” the likelihood that the gunboat had been used at all during the operation. This followed the NGO practice of portraying Israeli actions in Gaza as generally unlawful and immoral, meaning that any weapon that had been employed was assumed to have been used illegally.

In the short term, the British decision has more of a symbolic rather than practical impact, as most of Israel’s military imports originate in the US. However, Israeli officials have expressed concerns about the widening impact of the NGO campaign of delegitimization, including the possibility that other EU states may follow Britain’s lead, or that pressure generated by NGO criticisms will also eventually impede US arms transfers.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 43

Divestment efforts are also accelerating. Following an NGO campaign led by the Coalition of Women for Peace via the “Who Profits.org” project, the Swedish and Norwegian state pension funds announced that they were divesting from Israeli defense contractors such as Elbit. The Danske Bank in Denmark is reportedly following this path.121 The economic impact of these specific divestment moves is marginal, but they contribute to the wider process. In addition, NGO-led lawfare against Israelis has interfered with travel and related interaction involving key individuals from the politi- cal, military, and security sectors. As noted, former foreign minister and current opposition leader Tzipi Livni was forced to cancel a trip to Britain in 2009, following efforts to initiate legal proceedings against her related to the 2008–09 Gaza conflict. The lawfare cases against Israeli officials initiated by NGOs in Spain, Holland, New Zealand, Australia, and elsewhere (all of which were eventually dismissed) had similar impacts.

Lawfare also exacts economic costs, as each case requires the involve- ment of legal experts focused on defending against and defeating these efforts. In Canada, an economically based lawfare case against a Canadian firm for commercial involvement in the construction of the separation barrier/beyond the 1949 armistice line (submitted by Al Haq and other NGOs) also required a defense and incurred legal costs, which could deter firms from doing business in Israel. (Like the other lawfare cases, this one was dismissed by the court, but the damage caused by the filing and related publicity was not undone.)

In what is expected to be the next round of this “soft power” warfare, these tangible hard-power dimensions are likely to increase. The leaders of the efforts to press for the adoption of the Goldstone report by the UNSC, including NGO officials, see this as accelerating and amplifying the pro- cess of imposing UN sanctions on Israel, including arms embargoes. As in other dimensions, this follows the South African model. Although a UNSC endorsement is considered unlikely, the UNGA, in which the Arab and Islamic bloc wields more power, is almost certain to endorse Goldstone, which will also add to the sanctions process, albeit with less intensity.

Similarly, the NGO-led efforts to open proceedings against Israeli officials under the framework of the International Criminal Court (ICC) are designed to extend this process and its impact. In parallel, the BDS movement threatens to expand the hard-power impacts. BDS has a number of related dimensions, including academic and economic boycotts, divest- ment campaigns, and support for UN sanctions, as imposed on rogue states—Iraq under Saddam, North Korea, Iran, and the apartheid regime in South Africa.

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The academic boycott was the first and perhaps the most visible ele- ment. While formal measures have been blocked, in part due to legal issues, evidence is growing of the impact of the informal or “silent” boycott in excluding Israeli academics from a number of frameworks. Similarly, efforts to promote widespread economic boycotts of Israeli products, as well as divestment campaigns are expanding.122

Thus, the effort to translate NGO soft power into hard power through these mechanisms continues. To counter these impacts wider soft-power warfare, the targets—particularly Israel—will need to find remedies to address the sources of NGO power.

SPEAKING TRUTH TO NGO POWER

The image of non-governmental organizations active in global issues and regional conflicts, as apolitical experts and impartial watch dogs far removed from the push and pull of politics, is no longer valid. In the past decades, NGOs have become major political powers, particularly in the context of the Arab-Israeli conflict. They exercise influence through public discourse, political advocacy, and legal proceedings. Using their preferential access to the media and diplomatic mechanisms, NGOs set agendas, frame the moral issues and factual allegations, and promote both soft- and hard-power strategies. As demonstrated, the two are closely related.

However, NGO accountability remains a serious problem. In contrast to government policy-making structures, there is virtually no system of checks and balances on the power of NGOs, and independent analyses have only just begun. While serious media outlets, such as the New York Times, have a semi-independent “public editor”, and other institutions have ombudsmen to expose ethical breaches, professional lapses, and corruption, such mechanisms are largely unknown among the powerful NGOs. NGO enthusiasts boast that these organizations are “everything that governments are not”,123 yet in many ways this is more of a curse than a blessing.

This situation is amplified by the general absence of transparency among political NGOs, including with regard to decision making, hiring policies, and agenda-setting. In most cases, NGO officials stay in their positions for many years or decades, as in the case of Kenneth Roth at HRW. When the infrequent changes at the top do occur, as in the case of Amnesty International in 2010, these processes are closed, highlighting the NGO democracy deficit.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 45

In the absence of accountability, transparency, and checks and bal- ances, the main engine driving NGO power is the funding that they receive. Money translates into power, influence, and the ability to manipulate the public debate, and the large international NGOs now have operating bud- gets in the tens of millions of dollars. In a 1990 decision upholding limits on corporate election campaign donations (McCain-Feingold), the US Supreme Court warned of “the corrosive and distorting effects of immense aggregations of wealth”. The same analysis can be applied to the “aggrega- tions of wealth” in the NGO community, and its role in manipulating the marketplace of ideas in the context of the Arab-Israeli conflict. Foreign governments, primarily in Europe, but also including some US, Canadian, Japanese, and Australian funds, are the primary source of the “corrosive and distorting effects”.

Moreover, in the case of Europe, the annual transfer of large amounts of government funds to a selected group of political NGOs (in reality, FONGOs, or Foreign Government-funded Non-governmental Organi- zations) often takes place without transparency. The EU has refused to release any significant documents related to the funding process for NGOs involved in Arab-Israeli issues, including the names and the positions of the officials involved, contending that such information constitutes highly classified and extremely sensitive state secrets. (This is another example of soft-power imitating hard power.) This lack of funding transparency exacerbates the problems of non-accountability.

Thus, in order to address these deficiencies in the activities of political NGOs, prescriptive initiatives should focus on the following dimensions: (1) Transparency (both for the funding process and the organizations them- selves); (2) Systems of accountability, such as an ombudsman, and regular independent investigations, which are built into the NGO mechanisms; (3) Mechanisms to ensure a balanced debate and critical exchanges, and to prevent a monopoly on the “marketplace of ideas”; (4) Regulation, where necessary, to ensure that these basic systems of “checks and balances” are implemented for powerful NGOs.

In an August 2010 speech, Tony Blair, speaking in his capacity as the Quartet’s special Middle East envoy, referred to demonization as “a con- scious or often unconscious resistance, sometimes bordering on refusal, to accept Israel has a legitimate point of view”. The supporters of these politi- cal attacks are characterized by an “unwillingness to listen to the other side, to acknowledge that Israel has a point, to embrace the notion that this is a complex matter that requires understanding of the other way of looking at

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it.” Blair compared the soft-power delegimization to the Iranian threats to “wipe Israel off the map”, noting that the former is “more insidious, harder to spot, harder to anticipate and harder to deal with, because many of those engaging in it, will fiercely deny they are doing so. It is this form that is in danger of growing, and whose impact is potentially highly threatening.”124

Notes

1. UN Economic and Social Council, “List of non-governmental organi- zations in consultative status with the Economic and Social Council as of 17 October 2007.” E/2007/INF/4. Accessed 12 December 2009, http://esa.un.org/ coordination/ngo/new/INF2007.pdf.

2. “UN Human Rights Council.” Accessed 15 December 2009, http://www2 .ohchr.org/english/bodies/hrcouncil/.

3. “World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, 31 Aug.—7 Sep. 2001”. Accessed 28 November 2010, http://www.un.org/WCAR/durban.pdf.

4. UN Committee on the Exercise of the Inalienable Rights of the Palestin- ian People. Accessed 15 December 2009, http://www.un.org/Depts/dpa/qpalnew/ committee.htm.

5. Committee on the Elimination of Racial Discrimination. Accessed 12 December 2009, http://www2.ohchr.org/english/bodies/cerd/.

6. Ann M. Florini, “Who Does What? Collective Action and the Changing Nature of Authority,” in Non-State Actors and Authority in the Global System, ed. Richard A. Higgott, Geoffrey R.D. Underhill, and Andreas Bieler (London, 1999).

7. David Chandler, Constructing Civil Society: Morality and Power in International Relations (New York, 2004), 1.

8. Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders, Advocacy Networks in International Politics (Ithaca, NY, 1998) 13.

9. “Amnesty International—Who Are We?” Accessed 7 January 2010, http:// www.amnesty.org/en/who-we-are/history.

10. HRW (Human Rights Watch), Financials, 16 November 2008. Accessed 23 June 2010, http://www.hrw.org/en/about/financials.

11. Kenneth Anderson, “Questions re Human Rights Watch’s Credibility in Lebanon Reporting,” Kenneth Anderson Laws of War Blog, 23 August 2006. Accessed 25 June 2010, http://kennethandersonlawofwar.blogspot.com/2006/08/questions- re-human-rights-watchs.html.

12. Harel Ben-Ari, “Analytical Framework for the Consideration of the Norma- tive Position of International Non-Governmental Organizations (INGOs) Under International Law” (PhD diss., Bar Ilan University, 2009).

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 47

13. Chandler, Constructing Civil Society, 1. 14. Sarah Mandel, “Experts or Ideologues: Systematic Analysis of Human

Rights Watch,” NGO Monitor Monograph Series, Jerusalem, September 2009; Benjamin Birnbaum, “Minority Report: Human Rights Watch Fights a Civil War Over Israel,” The New Republic, 27 April 2010. Accessed 14 December 2010, http:// www.tnr.com/article/minority-report-2.

15. Peter Willetts, introduction to ‘The Conscience of the World’: The Influence of Non-Governmental Organisations in the UN System, ed. Peter Willets (Washington, DC, 1996); and, “The Impact of Promotional Pressure Groups in Global Politics,” in Pressure Groups in the Global System: The Transnational Relations of Issue-Oriented Non-Governmental Organizations, ed. Peter Willets (London, 1982).

16. Blitt, “Who Will Watch the Watchdogs?”, 262–398. 17. Heins, Nongovernmental Organizations, 24. 18. Anderson, “Questions re Human Rights Watch’s Credibility”. 19. Blitt, “Who Will Watch the Watchdogs?”, 288. 20. Joseph S. Nye, Jr., Soft Power: The Means to Success in World Politics (New

York, 2004), x. 21. Ibid., 94. 22. Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of

Power in World Politics,” The American Political Science Review 99.1 (2005), 29–43, especially 37.

23. Nye, Soft Power, 90. 24. Tanja Borzel and Thomas Risse, “Venus Approaching Mars? The EU as an

Emerging Civilian World Power,” in Promoting Democracy and the Rule of Law: American and European Strategies, ed. Amichai Magen, Thomas Risse, and Michael McFaul (London, 2009).

25. Fred Tanner, Joanna Schemm, Kurt R. Spillmann, Andreas Wenger. The European Union as a Security Actor in the Mediterranean: ESDP, Soft Power and Peacemaking in Euro-Mediterranean Relations. Z�rcher Beitr�ge zur Sicherheits-Z�rcher Beitr�ge zur Sicherheits- politik und Konfliktforschung, Nr. 61 (Zurich, 2001); George Joffé, “European Multilateralism and Soft Power Projection in the Mediterranean,” Instituto Da Defesa Nacional, Portugal, 2002. Accessed 18 December 2010, http://www.idn .gov.pt/publicacoes/consulta/NeD/NeD_101_120/NeD101/n_101.pdf#page=11. For a counter view see Adrian Hyde-Price, “’Normative’ Power Europe: A Realist Critique,” Journal of European Public Policy 13.2 (2006), 217–34.

26. Vera van Hullen and Andreas Stahn, “Comparing EU and US democracy promotion in the Mediterranean and the Newly Independent States,” in Promot- ing Democracy and the Rule of Law: American and European Strategies, ed. Amichai Magen, Thomas Risse, and Michael McFaul (London, 2009).

27. Kaldor, Global Civil Society: An Answer to War, 129–30. 28. Officially, the Organization of the Islamic Conference. 29. Habibi, “Human Rights and Politicized Human Rights”, 8. 30. A 2006 UN reform resulted in the creation of the Human Rights Council.

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31. Statements and Press Releases issued by Amnesty International during the 58th Session of the UNCHR (UN Commission on Human Rights), April 2002. Accessed 2 September 2009, http://www.amnesty.org/en/library/asset/ IOR41/021/2002/en/c7ca49b0-d802-11dd-9df8-936c90684588/ior410212002en.pdf, p. 39.

32. Heins, Nongovernmental Organizations, 24. 33. William Korey, Taking on the World’s Repressive Regimes: The Ford Foundation’s

International Human Rights Policies and Practices (London, 2007), 249–69; Edwin Black, “Ford Foundation Aided Groups Behind Biased Durban Parley,” Forward, 17 October 2003, Accessed 1 February 2010, www.forward.com/articles/6855/

34. Heins, Nongovernmental Organizations, 16. In addition to automatic admis- sion for NGOs with ECOSOC status, other NGOs were able to apply for special accreditation for this conference. See “NGOs not in Consultative Status with the Economic and Social Council that have been accredited to the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.” Accessed 8 January 2011, http://www.un.org/durbanreview2009/pdf/Note_by_ the_Secretariat_on_NGO_accreditation.pdf .

35. Korey, Taking on the World’s Repressive Regimes, 249–69; Black, “Ford Foundation Aided Groups Behind Biased Durban Parley”.

36. Paul Lungen, “Iran tries to exclude CIJA from Durban II Conference,” The Canadian Jewish News, 24 April 2008. Accessed 23 June 2010, http://www.cjnews .com/index.php?option=com_content&task=view&id=14521&Itemid=86

37. UNGA Preparatory Committee Third session, 5 July 2001, A/CONF.189/ PC.3/ Accessed 21 December 2009, http://www.racism.gov.za/substance/confdoc/ decldraft189b.htm.

38. Korey, Taking on the World’s Repressive Regimes, 249. 39. Ibid., 251. 40. Irwin Cotler, “Durban’s Troubling Legacy One Year Later: Twisting the

Cause of International Human Rights Against the Jewish People,” Jerusalem Issue Brief 2:5, Institute for Contemporary Affairs/Jerusalem Center for Public Affairs, August 2002. Accessed 2 January 2010, http://www.jcpa.org/brief/brief2-5.htm.

41. NGO Forum at Durban Conference 2001. Accessed 20 January 2010, http:// www.ngo-monitor.org/article/ngo_forum_at_durban_conference_

42. Korey, Taking on the World’s Repressive Regimes, 250. 43. The IDF entered the Jenin refugee camp following a series of terror attacks

against Israeli civilians. In response, Palestinian officials such as Saeb Erakat alleged that Israel had killed five hundred people, and committed “war crimes”. Dore Gold, Tower of Babble: How the United Nations has Fueled Global Chaos (New York, 2004), 212–8. See also Dr. David Zangen, “Seven Lies about Jenin,” IMRA, 8 November 2002 (translated from Ma’ariv).

44. Martin Seiff, “Analysis: Why Europeans Bought Jenin Myth,” UPI, 20 May 2002. Accessed 13 December 2009, http://www.upi.com/Business_News/

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 49

Security-Industry/2002/05/21/Analysis-Why-Europeans-bought-Jenin-myth/ UPI-34731022008462/.

45. Margaret Wente, “Call it Sham-nesty International, an Apologist for Terror,” Toronto Globe and Mail, 9 May 2002. Accessed 12 December 2009, http://www .ngo-monitor.org/article.php?id=585.

46. ReliefWeb, “Caritas Aid Workers Witness the Horror of Jenin,” Catholic Agency for Overseas Development, 29 April 2002. Accessed 6 January 2010, http:// www.reliefweb.int/rw/rwb.nsf/db900sid/ACOS-64BMEG?OpenDocument.

47. In explaining the absence of reports on Palestinian terror attacks, HRW officials argued that international humanitarian law did not apply to non-state actors and “militant groups”. “Transcript of interview with Urmi Shah from HRW,” broadcast in Jenin: Massacring the Truth, produced and directed by Martin Himel, Elsasah Productions, for Global Television Network, Inc., July 2004. Accessed 8 January 2010, http://www.ngo-monitor.org/article.php?id=1023.

48. HRW, “News: Israel and the Occupied Territories,” 2002. Accessed 3 January 2010, http://www.hrw.org/en/news-filter/228?page=16.

49. HRW, “Jenin: IDF military operations,” May 2002. Accessed 23 June 2010, www.hrw.org/reports/2002/israel3/.

50. dem. 51. Idem. 52. Asher Fredman, “Precision Guided or Indiscriminate? NGO Reporting on

Compliance with the Laws of Armed Conflict,” NGO Monitor ( Jerusalem, 2010). 53. UN Report of the Secretary-General prepared pursuant to GA resolution

ES-10/10. Accessed 12 April 2010, http://www.un.org/peace/jenin/. 54. Idem. 55. Kenneth Roth, CNN, 10 December 2002. 56. Palestinian Centre for Human Rights, Letter to Mary Robinson UNHCHR,

Geneva, Switzerland, 22 April 2002. Accessed 22 December 2009, http://www .pchrgaza.org/Interventions/robinson_22april2002.pdf.

57. UNCHR—Report on the Fifty-Eighth Session, 18 March–26 April 2002. Accessed 12 December 2009, http://www.unhchr.ch/Huridocda/Huridoca.nsf/ (Symbol)/E.2002.23++E.CN.4.2002.200.En?Opendocument.

58. The founder of Al-Haq, Charles Shamas, is also on the board of Human Rights Watch.

59. Al-Haq to the 58th Annual Session of the UNCHR, 2 April 2002. Accessed 13 January 2003, http://unispal.un.org/UNISPAL.NSF/0/A909C78C53AB1F3785 2571000077633B.

60. UNCHR—58th Annual Session. Accessed 12 December 2009, http://www .unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.2002.23++E.CN.4.2002.200 .En?Opendocument.

61. UN, GA/10449, 15 March 2006. Accessed 23 June 2010, http://www.un.org/ News/Press/docs/2006/ga10449.doc.htm.

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62. Database of written statements submitted to the UN Human Rights Coun- cil. Accessed 4 November 2009, http://ap.ohchr.org/documents/sdpage_e.aspx? b=10&se=1&t=7.

63. “To call Israel a Nazi state, however, as is commonly done today, or to accuse it of fostering South African-style apartheid rule or engaging in ethnic cleansing or wholesale genocide goes well beyond legitimate criticism.” Alvin H. Rosen- feld, “Progressive” Jewish Thought and the New Anti-Semitism, American Jewish Committee, New York, 2006; Interview with Gideon Shimoni, “Deconstructing Apartheid Accusations Against Israel,” Post-Holocaust and Anti-Semitism, Jeru- salem Center for Public Affairs, 60.2, September 2007; “Report of the All-Party Parliamentary Inquiry into Antisemitism,” UK All-Party Parliamentary Group Against Antisemitism, Westminster, September 2006.

64. UNGA, “Civil Society Makes Voices Heard During United Nations Public Forum in Support of Palestinian People,” 10 June 2009. Accessed 6 January 2010, http://www.un.org/News/Press/docs/2009/gapal1132.doc.htm.

65. dem. 66. Alexander Downer, “Extremist Islam Holds Little Appeal,” Middle East Quar-

terly, Fall 2005. Accessed 13 April 2010, http://www.meforum.org/779/alexander- downer-extremist-islam-holds-little.

67. “ADL to Ban Ki-Moon: UN Should Dismantle Anti- Israel Committee,” 20 July 2009. Accessed 13 April 2010, http://www.adl.org/PresRele/UnitedNations_94/ 5568_94.htm.

68. Civil Society Network on the Question of Palestine, Division for Palestin- ian Rights, DPA/UN. Accessed 23 April 2010, http://www.un.org/depts/dpa/qpal/ ngo/index.html.

69. Office of UNHCHR, NGO documents and updates submitted at the 69th session of CERD, Feb. 2007. Accessed 31 January 2010, http://www2.ohchr.org/ english/bodies/cerd/cerds69-ngos.htm.

70. Roselle Tekiner, “Race and the Issue of National Identity in Israel,” Interna- tional Journal of Middle East Studies 23.1 (1991), 39–55.

71. HRW: “Israel: West Bank Barrier Endangers Basic Rights: U.S. Should Deduct Costs From Loan Guarantees,” 1 October 2003. Accessed 9 January 2010, http://www .hrw.org/en/news/2003/09/30/israel-west-bank-barrier-endangers-basic-rights.

72. Tim Costello, “For the Children’s Sake, Tear Down this Wall!” The Age (Melbourne) 14 July 2004.

73. Christian Aid, “Why the Israeli ‘Barrier’ is Wrong,” 24 Feb. 2004. Reprinted on Relief Web. Accessed 11 January 2011, http://reliefweb.int/rw/rwb.nsf/0/f45d12 968829b6c585256e45007cb1cb?OpenDocument&Click=

74. Declaration of Judge Buergenthal (dissent). Accessed 26 January 2010, http://www.sharingjerusalem.org/pdf_Declaration_Judge_Buergenthal.pdf.

75. UNGA, “Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council resolution S-2/1,” 23 November 2006, 16. Accessed 1 February

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 51

2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/specialsession/A.HRC .3.2.pdf.

76. Idem. 77. Simon Wiesenthal Centre News Release, 17 October 2008. Accessed 7 Janu-

ary 2010, http://www.wiesenthal.com/site/apps/nlnet/content2.aspx?c=lsKWLbPJ LnF&b=4924937&ct=6269575.

78. HRW, “UN Race Conference Undermined by Western Withdrawals,” 19 April 2009. Accessed 2 January 2010, http://www.hrw.org/en/news/2009/04/19/ un-race-conference-undermined-western-withdrawals.

79. HRW, “Don’t Let Any Nations Derail UN Racism Conference,” 16 April 2009. Accessed 2 January 2010, http://www.hrw.org/en/news/2009/04/16/ dont-let-any-nations-derail-un-racism-conference.

80. NGO Monitor, Durban Review Conference 2009, 15 June 2009. Accessed 13 April 2010, http://www.ngo-monitor.org/article/durban_conference_0.

81. UN Watch, “UN Watch at Durban II”. Accessed 13 December 2009, http:// www.unwatch.org/site/c.bdKKISNqEmG/b.5156579/k.6720/UN_Watch_at_ Durban_II.htm.

82. Mirek Prokes, “WCAR NGO Forum—Analysis from the Organizational Point of View,” 22 September 2001. Accessed 23 June 2010, http://www.unitedagainstracism .org/pages/anWCAR.htm.

83. Edwin Black, JTA, “Anti-Israel Activists at Durban Were Funded by the Ford Foundation,” 16 October 2003. Accessed 23 June 2010, http://www.papillonsartpalace .com/aJnti.htm.

84. For a detailed analysis, see Gerald M. Steinberg, “Soft Powers Play Hard- ball: NGOs Wage War against Israel,” Israel Affairs 12.4 (2006), 748–68; see also NGO Monitor, “NGOs and the BDS Movement: Background and Funding,” presented at the Global Forum on Antisemitism, Jerusalem, December 2009. Accessed 24 August 2010, http://www.ngo-monitor.org/article/ngos_and_the_bds_ movement_background_funding_and_strategic_options.

85. For a detailed study of the forces that contributed to the academic boycott movement in the UK, see Manfred Gerstenfeld, “The Academic Boycott Against Israel,” Jewish Political Studies Review 15.3–4 (2003), 9–70; see also Ronnie Fraser, “The Academic Boycott of Israel: Why Britain?,” Papers in Post-Holocaust and Anti- Semitism 36 (1 September 2005); Jerusalem Centre for Public Affairs. Accessed 19 April 2010, www.jcpa.org/phas/phas-36.htm.

86. Fraser, “The Academic Boycott of Israel: Why Britain?” 87. HRW, “Razing Rafah: Mass Home Demolitions in the Gaza Strip,” October

2004. Accessed 24 August 2010, www.hrw.org/reports/2004/rafah1004/. 88. NGO Monitor, “HRW and Amnesty Promote Caterpillar Boycott,” 13 April

2005. Accessed 31 August 2010, http://www.ngo-monitor.org/article.php?id=527. 89. Willie Jackson, “Economic Retaliation against Tel Aviv,” Le Monde Diploma-

tique- English edition, September 2009. Accessed 23 June 2010, http://mondediplo .com/2009/09/12israelboycott.

52 • israel studies, volume 16 number 2

90. Barry Brown, “Toronto Film Festival Ignites Anti-Israel Boycott,” The Wash- ington Times, 5 September 2009. Accessed 23 June 2010, http://www.washingtontimes .com/news/2009/sep/05/filmmakers-react-anti-israel-film-festival-protest/.

91. “Building a Political Firewall Against Israel’s Delegitimization: Conceptual Framework,” Reut Institute, March 2010. Accessed 24 April 2010, http://reut-institute .org/data/uploads/PDFVer/20100310%20Delegitimacy%20Eng.pdf.

92. Anne Herzberg, “NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict,” 2nd edition, December 2010 (Steinberg, ed.). Accessed 9 January 2011, http://www.ngo-monitor.org/data/images/File/lawfare-english-executive.pdf.

93. Gerald Steinberg, ed., NGO Monitor Monograph Series, “The NGO Front in the Gaza War. The Durban Strategy Continues,” February 2009. Accessed 7 Jan- uary 2010, http://www.ngo-monitor.org/data/images/File/NGO_Front_Gaza.pdf.

94. UNHRC 9th Special Session, Oral Statements, 12 January 2009. Accessed 13 April 2010, http://www.un.org/webcast/unhrc/archive.asp?go=090112.

95. Idem. 96. UNHRC 9th Special Session, 8 January 2009. Accessed 26 January 2010, http://

unispal.un.org/UNISPAL.NSF/0/DC9AD14F2973AC668525753C006CE580. 97. UNHRC 9th Special Session Report, 27 February 2009. Accessed 6 June

2009, http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/ A-HRC-S-9-2.doc.

98. Video: Hamas brags about using woman and children as human shields. January 2009. Accessed 2 January 2010, http://www.mererhetoric.com/archives/ 11275301.html.

99. HRW, “Rockets from Gaza”. Accessed 2 January 2010, http://www.hrw.org/ en/reports/2009/08/06/rockets-gaza-0. 100. Steinberg, “The NGO Front in the Gaza War”. 101. “PCATI testifies before the UN Goldstone commission”, 14 July 2009.

Accessed 23 May 2010, http://www.stoptorture.org.il/en/node/1457. 102. The Association for Civil Rights in Israel, Gisha, The Public Committee

Against Torture in Israel, HaMoked: Center for the Defence of the Individual, Yesh Din, Adalah, Physicians for Human Rights-Israel. Submission of Human Rights Organizations based in Israel to the Goldstone Inquiry Delegation, Adalah’s News- letter 61, June 2009. Accessed 19 April 2010, http://www.adalah.org/newsletter/ eng/jun09/goldstone%20report_and_appendix[1].pdf. 103. “Submission of Human Rights Organizations based in Israel to the Gold-

stone Inquiry Delegation,” June 2009. Accessed 18 August 2010, http://www.acri .org.il/pdf/goldstone1.pdf. 104. Report of the UN Fact Finding Mission on the Gaza Conflict, Human Rights

in Palestine and Other Occupied Arab Territories, UN Human Rights Council, 12th session, Agenda item 7, 15 September 2009. Accessed 19 April 2010, http:// www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_ Report.pdf.

The Politics of NGOs, Human Rights and the Arab-Israel Conflict • 53

105. Israel Ministry of Foreign Affairs, “IDF Operation in Gaza: Cast Lead,” IDF Video: Hamas heavy weapons found inside mosque, 21 January 2009. Accessed 18 August 2010, http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/ Terrorism+and+Islamic+Fundamentalism-/Aerial_strike_weapon_development_ center+_Gaza_28-Dec-2008.htm. 106. Abraham Bell, “A Critique of the Goldstone Report and its Treatment of

International Humanitarian Law,” American Society of International Law Proceed- ings; 104; San Diego Legal Studies Paper No. 10–019, 31 March 2010. Accessed 1 April 2010, http://ssrn.com/abstract=1581533. 107. Report of the UN Fact Finding Mission on the Gaza Conflict, Human

Rights Council, 12th Session, 15 September 2009, 9. 108. Ibid, 10. 109. Professor Elihu D Richter MD MPH and Dr. Yael Stein MD, Com-

ments on B’Tselem’s Civilian Casualty Estimates in Operation Cast Lead, 14 September 2009. Accessed 21 April 2010, http://www.ngo-monitor.org/article.php? viewall=yes&id=2638. 110. Heins, Nongovernmental Organizations, 24. 111. Irwin Cotler, “Voices on Antisemitism,” United States Holocaust Memorial

Museum, 5 June 2008. Accessed 23 May 2010, http://www.ushmm.org/museum/ exhibit/focus/antisemitism/voices/transcript/?content=20080605. 112. Anthony Julius, Contemporary Secular Anti-Zionisms (New York, 2010), 456. 113. Quoted in Julius, Contemporary Secular Anti- Zionisms, 457. 114. Amos Harel and Avi Issacharoff, Spider Webs (Tel-Aviv, 2008), 337 [Hebrew]. 115. See the October 2000 letter signed by 20 organizations include Amnesty

International (AI) and Human Rights Watch (HRW), urging U.S. Secretary of State Albright to suspend the sale of helicopters to Israel. Accessed 24 May 2010, http:// www.ncccusa.org/news/01news48.html; and a 16 August 2001 BBC news story quoting Kate Allen, AI’s UK director, that “logic demanded a halt to the export licenses [to Israel]”. Accessed 4 April 2010, http://news.bbc.co.uk/2/hi/uk_news/ politics/1494543.stm. 116. “Israel/Lebanon: War Crimes without Accountability,” Amnesty International,

12 July 2007. Accessed 27 August 2010, http://www.amnesty.org/en/library/asset/ MDE02/001/2007/en/41eb7c2a-d37c-11dd-a329-2f46302a8cc6/mde020012007en .html; and HRW, “Fatal Strikes: Israel’s Indiscriminate Attacks Against Civilians in Lebanon,” 2 August 2006. Accessed 27 August 2010, http://www.hrw.org/en/ reports/2006/08/02/fatal-strikes. 117. See, for example, AI, “ Fuelling [sic] Conflict: Foreign Arms Supplies to

Israel/Gaza,” 23 February 2009. Accessed 27 August 2010, http://www.amnestyusa .org/countries/israel_and_occupied_territories/fuellingconflict.pdf. 118. See Asher Fredman’s analyses at length on the role of AI and HRW in shaping

public perceptions of the IDF’s actions in Gaza, and in influencing British decisions regarding arms sales to Israel (forthcoming manuscript, on file with the author.)

54 • israel studies, volume 16 number 2

119. Testimony of Bill Rammell MP, then minister of state at the Foreign and Commonwealth Office, to the Committees on Arms Export Controls, 22 April 2009. Accessed 28 August 2010, http://www.publications.parliament.uk/pa/cm200809/ cmselect/cmquad/178/9042201.htm. 120. BBC, “UK Cuts Israel Weapons Contract,” 13 June 2009. Accessed 28

August 2010, http://news.bbc.co.uk/2/hi/middle_east/8147377.stm. 121. “Israeli companies excluded from bank’s investments,” The Copenhagen

Post, 25 January 2010. Accessed 23 June 2010, http://www.cphpost.dk/component/ content/48048.html?task=view. 122. Daniel Bettini, “Pulling out: Europes economic boycott of Israel expanding,”

Ynet, 27 August 2010. Accessed 31 August 2010, http://www.ynetnews.com/articles/ 0,7340,L-3943666,00.html. 123. William F. Fisher, “Doing Good? The Politics and Antipolitics of NGO

practices,” Annual Review of Anthropology 26 (1997), 444. Accessed 26 January 2010, http://www.jstor.org/stable/2952530. 124. Speech by the Quartet Representative Tony Blair, Herzliya, 24 August 2010.

Accessed 31 August 2010, http://www.tonyblairoffice.org/news/entry/tony-blair- welcomes-re-start-of-direct-peace-talks-during-herzliya-speech/.

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