UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology


Howard Adelman

How one investigates is as important as who does the investigation (the previous blog) and what framework one brings to the investigation (the first blog in this series).  Further, how one communicates the results of one’s investigation is integrally related to what is revealed, but I will reserve the discussion of that aspect of the methodology only after we examine the majority of the Report. For the context of how results are conveyed is as important as the context of the actual events themselves and the methodology for determining facts.

The Commission never visited Gaza. Israel never even acknowledged the repeated requests from the 2014 Gaza War Commission to permit entry from Israel. Egypt would not even allow the Commission to enter via the Rafah crossing, allegedly due to the security situation (para. 3). However, as we read on, Egypt’s refusal was irrelevant. Why?

“Israel also regulates all (my italics) crossings allowing access to and from Gaza. While it is true that the Rafah crossing is governed by Egypt, Israel still exercises a large degree of control, as only Palestinians holding passports are allowed to cross, and passports can only be issued to people featuring on the Israeli generated population registry.” (para. 29) Israel controls who gets passports in Gaza. Why is this claim made? Israel “controls the Palestinian population registry, which is common to both the West Bank and Gaza, and Palestinian ID-cards can only be issued or modified with Israeli approval.”

Assertions like this undercut the credibility of the report. Though most readers of the report will be unfamiliar with the so-called passport war, the basic facts are these:

  • The PA, not Israel, overwhelmingly controls who receives passports in Gaza
  • The PA issues approximately 500 passports per business day to Gaza residents
  • The PA is the party, not Egypt, which restricts the issuance of passports based on vague security concerns
  • Egypt’s restrictions are imposed, not only for security reasons, but to prevent overstayers and using Egypt as a place to escape from living in Gaza
  • Hamas has a record of confiscating passports held by members of Fatah, in part in retaliation for the PA limitations on who gets passports
  • Gaza human rights organizations have campaigned to end the practice; thus A-Dameer, one of the Gaza-based human rights organizations, once declared that, “The PA automatically prevents people affiliated with Hamas from receiving passports. We have appealed to the prime minister on the matter, but have so far received no response.”
  • The enforcement of these practices shifts depending on the character of the relations between Hamas and Fatah at the time
  • The major obstacle to leaving Gaza has not been the absence of passports, but the possibility of entry to either Egypt or Israel, both of which restrict entry, but Egypt has permitted students to cross, those seeking medical services, those with visas to other countries and those en route to attend the annual haj pilgrimage
  • Israel’s veto rights based on the Oslo accords over the Palestinian population registry is almost totally irrelevant to the issue over the issuance of passports, and is a red herring if ever there was one.

Why would the commission damage its credibility over such a side issue? Because, just as in referring to the Palestinian State, the Commission is committed to reinforcing the position that Israel is an occupying power, for an occupying power has additional responsibilities that an alien belligerent does not have. This is a clear example of ideology more than even a human rights frame influencing the content of the Report.

However, by and large the writing of the Report has not been influenced by the imposition of such crass uses of ideology. The Commission has relied on expert witnesses, especially when it had to determine the type of weapons used in a specific incident. However, witnesses who might contest the findings are not used. In using expert witnesses from the medical field to reinforce the source of death or injury, the Commission does not explain why medical doctors concerned with children’s health in Israel were not interviewed, but those in Gaza were.

However, the Commission has primarily relied on affected individuals through written submissions (500) and interviews (280), and on other witnesses primarily from human rights organizations. I will later offer a hypothesis to explain this source as the primary evidence in the documentation. The Commission also heard from representatives of the government of the West Bank, as indicated above, referred to as the representatives of the Palestinian State. No explanation is offered for that designation. Nor is there any consideration presented of how such a designation might in itself determine Israel’s non-participation in the process and whether such a designation arose after Israel’s refusal to participate or was one of the provocations that incited Israel to remain aloof from the proceedings of the Commission.

The Commission claimed that “a number of Israeli non-governmental organizations were reluctant to cooperate with the Commission of Inquiry, fearing in some cases that there could be negative repercussions on their work.” This is hard to believe and no back-up is provided for this contention. Certainly B’Tselem, Israel’s premier human rights organization, seemed to show no reluctance in offering evidence and is extensively cited in the Report.

Those who were not interviewed rather than those who were may be of somewhat greater significance. I mentioned two types of missing witnesses above, Israeli doctors and military experts on the use of weapons who might contradict the findings of the one military expert employed. A military expert on munitions was consulted to determine types of weapons used. That testimony, which is included in the details of each of the incidents described, reinforces the sense of detachment and concern with factual detail in the Report, but there is no reference to other military experts who might have a different view, and, if so, how the Commission adjudicated between and among differences. We will have to see when we examine the detailed descriptions whether this was significant. Alternatively, was there sufficient consensus such that the attention to detail on the munitions had another purpose that explains why this needed to be included in such detail. This is especially important since there is relatively very little in the Report, as there was in the Goldstone Report, discussing weapons banned by international humanitarian agreements.

There is no record of interviewing military personnel on either side or experts from either side or from other armies, or experts in humanitarian law, mainly the ICRC already discussed, other than from human rights organizations. The Commission also relied on satellite imagery, video and photographic evidence. But all of these sources, both neglected and included, were subsidiary. The Commission “gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were done remotely, the lapse in time since the incidents occurred, and the possibility of reprisals.”

The primary method in examining and presenting the evidence of the depiction of individual incidents is the use of “reasonable grounds” as the measure of what took place. That is, what “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.” (para. 19) Such a determination is based on the reliability and credibility of the source related to the objectivity and quality of the evidence and the methodology by which the evidence was obtained. The validity and veracity of the information itself was evidently based on cross-section comparisons. In examining the presentation of individual incidents, we will have to see if a major method of scientific objectivity was used, namely what checks were used to see if the evidence was false – known as the application of the principle of falsifiability, or whether that principle was employed at all.

This allows me to segue into a very different methodology altogether, and not one even mentioned or discussed in the methodology section –s literary and stylistic methods of presentation as well as issues related to determining scientific reliability and objectivity. First, it is very interesting that the Commission decided to place the depiction of the damages to Israeli civilians and property first. Of the almost 500 paragraphs in the Report which constitute the bulk of its material, only 50, or 10%, deal with attacks from Gaza against Israel. 90% deal with incidents of civilian deaths and injuries and property damage in Gaza. That may be justified because the proportions represent the different degrees of damage done by each side to the other, something that will have to be determined by a specific examination of incidents.

Before the Commission gets into the examination of the specific incidents, it offers an account of the legal framework it uses and of the context in which it places its investigation and the conflict that occurred. On the matter of the legal framework, the Report discusses three area of international law – humanitarian law (14 paragraphs), human rights law (8 paragraphs) and international criminal law (5 paragraphs).  The proportion given to each type of law is no indication of the importance in compiling the Report. For when one studies the Report, it is clear that the overwhelming framework for examining the legal issues in the conflict is humanitarian law.

On the issue of humanitarian law, the Report presents the most relevant principles for the conduct of war and presents them fairly and succinctly.  However, the Report offers no explanation of why it neglected to deal with other very relevant principles of humanitarian law. The first concerns not the conduct of war (ius in bello), the means and methods of engaging in a violent conflict, but the reasons for going to war in the first place (ius ad bellum). The Geneva and Hague Conventions are summarized as well as some follow-up treaties and references to customary international law, but case law seems to be reserved largely as citations in depicting and analyzing specific incidents. There is only an implicit and glancing reference to the reasons each side had for engaging in war in the first place and the extent to which the initiation of hostilities was justified.

This point is crucial. For both strands of international humanitarian law are critical to analyzing a conflict. To what extent does the Report engage in such discussions and what reason, if any, is offered for the relative inattention? The section on humanitarian law dutifully lists all the relevant international instruments. However, the focus of the discussion overwhelmingly concentrates on reinforcing the claim that Israel is an occupying power because:

  • Israel still occupies part of the Palestinian entity, namely the West Bank and East Jerusalem, and occupation of only part of a territory is sufficient to define a party as an occupying one
  • Israel exercises effective control over Gaza, not because it any longer has troops on the ground, but because it retains the capacity to launch troops easily into Gaza
  • Israel continues to control the air space and marine access
  • Israel exercises de facto control over the Gazan economy
  • As mentioned above, Israel controls not only access and egress via the crossings into Israel, but over the crossing into Gaza through its veto over the Palestinian population registry and, hence, over who does or does not get passports.

However, the key criterion of the readiness militarily to occupy a territory is whether a country, in this case, Israel, can at will assume physical control of the territory. Since Israel, by the war itself, gave proof that it could NOT do this both in beginning hostilities against Gaza as well as in the staging of those hostilities – conducting a ground war only after a period of air war – Israel could not be an occupying power by this criterion. The interesting point is that the Report cites the relevant measure but engages in no discussion of whether the measure is or is not applicable. It merely assumes that Israel had the capability in spite of the massive evidence to the contrary. It is not simply that the massive evidence is ignored, but even the argument is totally bracketed.

Nor does the Report get onto the issue of necessary versus sufficient conditions. Each criterion the Report cites is a criterion for determining occupational status. The question is whether they amount to sufficient conditions only in combination? Or does the presence of any one by itself determine whether one state is in occupation of another territory? The Report is written not in the form of a social science investigation, which considers and weighs the arguments for each side in a contentious controversy, but in the form of a prosecutorial notification before a court citing only evidence and arguments for the viewpoint it is putting forth, a viewpoint which reflects the position of the UNHRC and majority of members of the UN when it comes to the Gaza case (but not the case of Russia in the Ukraine, for example).

Perhaps Israel is legally an occupying power. The evidence as presented is totally unpersuasive and defies common sense. For if Israel were really in control of Gaza, how did Hamas manage to smuggle all those missiles and mortars into Gaza? Surely Israel’s going to war and the way it went to war are the best indicators that it did not exercise effective control over Gaza. If the issue of effective control of air space and of maritime access and of occupying a part of the territory of a state were key, then given the American extra-territorial military role on the Dew line in Canada, and its deployment of nuclear-armed missiles in the north of Canada contrary to general public knowledge, the United States, one might argue, has been an occupier of Canada, quite aside from the fact that America is by far the most important influence on the Canadian economy. The absurdity of such a claim, that America is an occupying power in Canada, should at the very least instigate the Commission to present the arguments and evidence for the other side in full instead of dismissing them as simply incidental and troublesome claims by the party, namely Israel, which allegedly wants to disown its responsibilities.

If the primary emphasis is on the issue of humanitarian law, why the big emphasis on the issue of occupation? And why does the issue take so much of the space within the humanitarian law section when the key issue of occupation seems to be the applicability of human rights law and the point the Report makes at the end of the discussion of human rights law: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.” (para. 46) If Israel is an occupying power, then Israel is accountable to Gazan residents for justifying its behaviour and the relationship is not just one between two alien entities, Israel and Gaza.

The Report not only neglects key issues of humanitarian law. First, it avoids the critical issue of the justification for going to war in the first place. However, even other issues in the conduct of war than proportionality, distinction between combatants and non-combatants and the choice of military weapons used, are not discussed. Why is there no discussion of the principle of humane treatment? That principle prohibits violence to life and person, torture, taking hostages, treating the enemy population, whether combatants or non-combatants, in a humiliating and degrading manner, executions without due process and proper legal protections. In fact, the principle of humane treatment is referred to only once in the Report, not in the paragraphs discussing humanitarian law, but in a depiction of one incident of claimed mistreatment by Israeli troops. In paragraph 342, the Report cites the relevant Articles 27 and 29 of the Geneva Convention IV, and then makes the claim that in several cases, Palestinians were detained in their homes in Khuza’a, and then insulted, threatened with death and ill-treated by members of the IDF.

Quite aside from whether Israeli soldiers behaved this way in this incident – which will be discussed in another blog – or whether this was an exceptional incident, the real issue is why was the principle of humane treatment never discussed in the legal section and only cited once as far as I could find in the whole document?  After all, the Report does discuss and describe the extra-judicial execution of alleged collaborators (paras. 490-502), describing them as not uncommon, as mostly perpetrated against those imprisoned in Gaza before the outbreak of the war, ostensibly as a warning against other potential collaborators. These were among the most heinous breaches of the principle of humane treatment, and infinitely worse than the alleged conduct of the Israeli soldiers in this one incident cited. The Report documented 21 incidents in total (there were others), at least 11 of them from persons previously incarcerated in Al-Katiba prison. “On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were ‘found guilty of giving information on the whereabouts of fighters and civilian houses’.” (para. 495)

Overt abductions, torture, extra-judicial killings, kangaroo trials in some cases, are all severe breaches of the principle of humane treatment, some evidently for strictly political reasons to dispose of Fatah personnel during war when the killings would not be noticed. It is interesting that the Report includes a promise made by the PA that the government would investigate at least 25 cases under this rubric “once it recovers control of the Gaza Strip” and the PA did not mean recovering control from Israel. This and other comments all challenge the Report’s assumption more than conclusion that Israel was an occupying power in control of Gaza. Another relevant aspect is that witnesses in Gaza refused to come forward and be acknowledged lest revenge be meted out against them.

The Report has to be applauded by inclusion of these incidents and pointing them out as breaches of the Geneva Conventions. But then why not discuss the applicable principle of humane treatment in the legal section? Why the overall emphasis on proportionality? There are other principles that are also ignored, one related to the principle of non-discrimination which directly overlaps with human rights principles. So is the principle ignored of preferential protection for women and children non-combatants, more particularly, protecting women from rape or assault, and prohibiting children from being combatants? Ignoring rape and assault of women might be understandable since neither side had a reputation for engaging in such activities. But there is plenty of evidence and certainly far more allegations that the militant groups in Gaza had no compunction against the use of child soldiers. Did the Commission not have a responsibility to investigate such allegations?

Once the principles of ius ad bellum were ignored, and which will be discussed in much greater detail in my next blog dealing with context, the playing down of the principle of humane treatment and of the gender issue may have been given little play because the condemnations overwhelmingly bring Gaza militants to the forefront and allow Israeli troops to appear much better in following such norms. But this is a mere speculation. We shall have to establish whether it has greater importance when we get deeper into the Report.

Next: Context and the Justification for Going to War


The Boycott, Divestment and Sanctions (BDS) Movement: Part I: A Rhetorical Critique of BDS

The Boycott, Divestment and Sanctions (BDS) Movement


Howard Adelman


In the next three blogs, I assume the persona of a critic of Israel. The reader can judge whether that persona believes Zionism in general is a settler colonial enterprise, or believes that Israel has expanded its settlements on the West Bank, or because the writer is milquetoast and simply supports the Palestinian cause. I can assure the reader of only one thing – the writer is not an anti-Semite, though very critical of Jews and not just Zionists.  However, this is not a screed against Israelis or Zionists or Jews. It is a screed against my fellow Arabs and Muslims for their pusillanimous and hypocritical approach to the challenge facing them. My voice is not simply one of discontent or of a dissident against the organized Palestinian and Arab establishment. I come from that establishment.

I realize that I am taking on what is literally the weakest link, the soft underbelly of the anti-Israeli movement. But that softness is the real enemy, not Israelis, Zionists or Jews. For it diverts our energies and time into supporting BDS, not simply against Israel, but against Israeli academics who were never even part of the original target of the BDS movement. This is not an irrational screed. I intend to demolish the case for the BDS movement, not because it is not muscular enough, though it is certainly the skinny pasty victim on the beach, but because it is not ethically consistent or coherent.

I ask: upon what criteria – moral principles, efficaciousness of the BDS movement, current international political circumstances or my personal values or goals in life – should I support BDS?  Does or should it matter whether BDS is succeeding or, alternatively, whether it is badly in need of support? How should the existing strategies and tactics of BDS affect my support? This is not simply an exercise in sophistic rhetoric or an effort in verstehen, an empathetic re-enactment to better understand the BDS supporter from the inside as it were. Rather, this is intended to be an exercise in applied ethics where the support of BDS focused on Israeli academia is considered a possible reasonable moral choice for an effort in political activism.

It is a possible choice, but not a reasonable one for any self-respecting Palestinian, Arab, Muslim. I shall try to make clear why BDS is a fraud designed to serve, albeit unintentionally, in strengthening the Zionist program. Hopefully, this analysis will lead to a better understanding of the BDS movement with perhaps some implications for choosing alternative strategies.

This blogs will appear in three installments:

1) A succinct description of BDS and is rhetorical tropes;

2) What BDS- has achieved to date with an analytical critique of its claims for success;

3) A more fundamental moral critique.

Part I: A Rhetorical Critique of BDS

For the record, rather than offering information that is not already widely known, the BDS movement was launched in 2005 by 170 Palestinian civil society organizations. They represented refugees, Palestinians under occupation and Palestinian citizens of Israel. No one can accuse the BDS movement of a failure to be deeply rooted in Palestinian society.

Further, it is a non-violent effort. The roots began well before the initial 2005 date. Before even the first intifada broke out in 1987, Faisal Husseini (I said that I come from the establishment) argued that the use of force against the power of Israel backed by the might of America was an exercise in futility, a quixotic tilting at windmills that only invited more loss of territory and more concessions to the Zionists. Instead, the Palestinian movement had to imitate the efforts of Gandhi and Martin Luther King and host the Zionists on their own moral petard.

The methods of non-violent resistance had to be employed to enhance pressure on Israel through a program of boycotting Israeli products, just as Blacks in Alabama boycotted the use of the buses in Montgomery, Alabama. The movement had to promote financial disinvestment from Israeli companies by Western interests sympathetic to the Palestinian cause. Most importantly, it had to promote sanctions against the Israeli state and bring Israel down on its economic knees just as the West succeeded in forcing Iran through the use of sanctions to give up its military nuclear program. Hence, BDS, boycott, divestment and sanctions. These were to be and still are the purported tools to apply non-violent pressure against Israel.

This is why Uncle Faisal cleared out his huge accumulation of Palestinian records going back to the colonial period that he had collected in Orient House. He replaced the material with a huge collection of works on Gandhi’s and Martin Luther King’s tactics and successes. Though he never openly opposed the intifada, it was not the path he had recommended. The non-violent movement would look to the future and not try to build a case on either the records of the past or past exercises in military futility.

Note the following. The original mandate of BDS did not include boycotting the speeches of Israeli academics who appeared abroad to give talks. Yet much of the activity of the BDS movement on North American and British campuses has been directed towards that end. Secondly, the BDS movement on appearance had nothing to do with denying Israel’s right to exist or its legitimacy. Instead there were purportedly three finite goals, which, when met, would require the movement to retire. They were:

  1. ending Israel’s occupation and colonization of all Arab lands;
  2. recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality;
  3. respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.

On the surface, these seem like perfectly clear and even modest demands. But are they? Take the first. If Israel is defined by its opponents as a colonialist and occupying power, then the reference is not only to the West Bank, much of which Israel continues to occupy, while the rest remains under its control through the PLO that has been reduced to a satrap, but must refer to the whole of Israel itself. Just look at the original non-aligned conference in Bandung, Indonesia in April 1955, sixty years ago. 29 countries representing one-quarter of the Earth’s surface and one-half of its population endorsed the Palestinian cause and depicted Israel as a colonialist imposition in the Middle East when it was not in occupancy of the West Bank.

Sixty years later in Bandung in April of this year, the rhetoric remained the same. Since the original conference, all countries under colonial occupation have been freed and gained their independence – except Palestine. The original declaration was not about the West Bank and Gaza. Instead, Israeli Zionists were accused of illegally occupying Palestine. This year, the NAM states reiterated that position. For the past 68, not just 48 years, with the support of its main ally, the United States, and some other western countries, such as Britain, Canada, France, Australia, and Germany, support for Israel as an occupying power continues. .

The Bandung non-aligned states are part of the problem, not part of the solution. For they are satisfied with rhetorical expressions of sympathy rather than any systematic program of action. After all, the countries at the Bandung Conference committed themselves to non-violent solutions. In the 10-point Dasala Bandung, the “declaration on promotion of world peace and cooperation.” Just read five of the clauses:

Clause 2: Respect for the sovereignty and territorial integrity of all nations

Clause 4: Respect for the right of each nation to defend itself, singly or collectively

Clause 5 (b) Abstention by any country from exerting pressures on other countries

Clause 7: Refraining from acts or threats of aggression or the use of force against the territorial integrity or political independence of any country

Clause 8: Settlement of all international disputes by peaceful means, such as negotiation, conciliation, arbitration or judicial settlement as well as other peaceful means of the parties own choice, in conformity with the charter of the United Nations. 

Israel, as well as Taiwan, may not have been invited to the conference. The conference may have endorsed Palestinian recovery of their lands. But how could that be achieved? Especially given the record over the last sixty years, if respect was to be given to Israel as a nation with membership in the United Nations entitled to take all measures to defend itself? Not only could force not be threatened against Israel, but the Bandung Conference ruled out even the use of sanctions as a form of pressure. The non-aligned states could reiterate all they want this year that Palestine was not and would not be forgotten, but the actions of these states, with few exceptions, substitute nostalgia and memory for any program of action to deal with Israel as a colonial occupying power of all of Palestine.

The second goal of the BDS movement seems unassailable – recognizing the rights of Arab-Israeli citizens to full equality. But does equality require insisting not only that Arab-Israeli citizens have equal access to jobs and housing – they already have the ballot and considerable representation in the Knesset – but that the symbols of the state and its national anthem represent and give recognition to all of the citizens of the state and not be rooted in Jewish and Zionist motifs? Further, if Israel is by definition an occupying power, what is the meaning of equality of membership in such a state, becoming a quisling and joining with Zionists and Jews in the occupation of their own people’s lands?

The third is the most contentious – the demand for a return of the refugees. (See Howard Adelman and Elazar Barkan (2011) No Return, No Refuge. New York: Columbia University Press.) On that matter, the conclusion is very clear in spite of Palestinian and Arab subsequent successes in the revisions to the interpretation of UN Resolution 194, particularly in UN Resolution 338. The resolution itself does not state that the refugees, whether Jewish or Arab (the resolution applies to all those in Palestine who fled or were forced to leave their homes), had to be free to return to their original homes. Clause 11 of the resolution deals with other matters, such as the status and role of the Conciliation Commission, the demilitarization of greater Jerusalem, but also giving due recognition to the role of the recently assassinated Count Folke Bernadotte whose recommendations on the issue of refugees significantly influenced the debates and wording of the relevant clause. Clause 11 states:

Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible; Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.

First, the clause is commendatory not mandatory, requesting Israel to permit return. This is consistent with the predominant view at the time that a state had full power to determine who could be its citizens, a principle accepted by the Bandung Conference. Second, even that request for permission has a condition – it is only applicable to those who having fled commit themselves to live at peace with the state of Israel, that is, to accept permanently the occupation by a colonizing power. Third, as the debates clearly reveal, those states supporting the resolution envisioned settlement in surrounding Arab countries as the permanent solution, an outcome to be supported by compensation paid to those displaced. Fourth, even the compensation clause is restrictive, applicable only to those who made a choice not to return. Those who opted for continuing the fight, by implication, would neither be permitted to return nor given compensation. The resolution was based on a belief in financial bribery – that the refugees could be bought off. There is no doubt that this clause, which was opposed by Egypt, Iraq, Lebanon, Saudi Arabia, Syria and Yemen, was not only opposed because it favoured Israel more than the Palestinians, but because those states then considered Israel itself to be illegitimate.

The problem is that if the clause is interpreted, as it was subsequently, as mandating “a right to return,” then it is inconsistent with all other refugee situations where refugees have never been allowed to return in a violent clash between ethnic rivals. Everyone who has studied the matter knows that refugees only have been able to return in such conflicts if they were part of a victorious military force. The right of a state to determine its own members always trumped any consideration of return.

Warehousing refugees in camps for sixty-seven years, feeding them the belief that they can return “by right” instead of letting them understand that the only way they will and can return will be through victory over the Zionist colonizers, is all part of a long term sedative to put the Palestinian cause to sleep while rhetorically and nostalgically celebrating the Palestinian cause as the last and greatest item in the push back against colonialism. The refugees will only return if they are on the side of those who win militarily. So the clause either does not refer to any right even implicitly or it does entail a right, but a right that does not have universal applicability and is only applied to Palestinian refugees and not even all refugees from Palestine. But a right that is not universal is not a right at all.

I will end this critique of BDS as a rhetorical exercise by referring to an article in Embassy. Embassy is a ten-year old electronic publication that reports on Canadian diplomacy, defence, immigration, trade and development. On 26 May 2015, the periodical published an article by Peter Larson entitled, “Israel boycott demands consistent with official Canadian policy” with the subtext, “Yet the public safety minister recently declared that Canada will show ‘zero tolerance’ towards the so-called BDS movement.” It is important to note that Peter Larson is not a government official or someone who retired from the foreign service or even an independent journalist. He is the chair of the National Education Committee on Israel/Palestine, a committee of the National Council on Canada Arab Relations, the main lobby group behind the BDS movement.

Without even getting into the body of the article, a reader has to ask why would a Canadian government minister appear to legally banish a body engaged in promoting a boycott against Israel? On the other hand, why would the writer insist that the position of the BDS movement is perfectly consistent with Canadian policy? The answers to these two questions are not readily found in the article.

There is some clarification with respect to why the Minister might take such a stand that initially appears so counter-intuitive – if the activities were regarded as a ”hate crime.” However, no sooner was this explanation offered than the Canadian government announced in unequivocal terms that BDS was not a target for prosecution because BDS was an exercise in hate. Of course, BDS is no such thing. That is its problem. BDS makes nice. As in the article, BDS insists that the positions it advocates are perfectly consistent with Canadian policy. For example, the article claims that “ending its occupation and colonization of all Arab lands” is completely consistent with Canada’s existing policy as stated by the Department of Foreign Affairs, Trade and Development, namely that, “Canada does not recognize permanent Israeli control over territories occupied in 1967 (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip)… As referred to in UN Security Council Resolutions 446 and 465, Israeli settlements in the occupied territories are a violation of the Fourth Geneva Convention.”

The omitted sentence signalled by the dots reads: ”The Fourth Geneva Convention applies in the occupied territories and establishes Israel’s obligations as an occupying power, in particular with respect to the humane treatment of the inhabitants of the occupied territories.” When inserted, the next sentence reads with my italics, “Canada does not recognize permanent Israeli control over territories…” Impermanent control as long as both Israel and the PLO protect Palestinian civil and humanitarian right and until the deal is made trading the settlements for land in the Negev. In reality, the policy endorses creeping colonialism. And that is made clear in the opening paragraph where the world’s current strongest supporter of Israel, Canada, “supports Israel’s right to live in peace with its neighbours within secure boundaries and recognizes Israel’s right to assure its own security… Canada and Israel enjoy a steadfast friendship and strong, growing bilateral relations in many areas based on shared values, including democracy.” The issue is then not one of real principle, but about what Israel can get away with even under international law.

The second BDS demand requires “recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality.” But nowhere in the above statement of Canadian policy is there any reference to the rights of Israeli-Palestinian citizens. All BDS supporters can cite is general principles where Canada boasts that it “has been a consistently strong voice for the protection of human rights and the advancement of democratic values.” But when was the last time, if ever, that Canada voiced any concern for the equal rights of Palestinian Israelis?

What about refugee policy? After all, Canada gavelled the refugee talks in Geneva. Canadian policy on the Palestinian refugees states that, “Canada believes that a just solution to the Palestinian refugee issue is central to a settlement of the Israeli-Palestinian conflict, as called for in United Nations General Assembly resolution 194 (1948) and United Nations Security Council resolution 242… This solution should respect the rights of the refugees, in accordance with international law.” The problem is that it is perfectly consistent with BDS goals and methods of using rhetorical gestures. For nowhere in that policy does it say that Canada respects the right of Palestinian refugees to return to what is now Israel. All we get is equivocation and a demonstration that diplomacy is the art of creative ambiguity.

When BDS participates in this creative ambiguity while believing in strategies directly at odds with Canadian policy, we simply observe an exercise in obsequious behaviour, the very attitudes that colonialism inculcates in a subject people.

What I have sketched out is an argument that the non-violent rhetoric of the BDS movement is but one small tactic in a long chain of concessions which rhetorically may make one feel good, feel righteous and virtuous, and even promote identification with those oppressed by the strategies of the colonial masters, but is an exercise in rhetoric that is both inherently contradictory and ultimately inefficacious. It contributes, as have all other gestures in this line, to the incremental success of Zionism, an ideology that needs to be defeated on the ground and not just with words

BDS speech is not hate speech. It is an exercise in obsequious love speech, love for the language of its colonial masters. Until BDS throws off the shackles of its linguistic colonialism, it offers no program for the future. If its rhetoric is rooted in a history of failure in spite of the appearance of some successes, has BDS had any significant concrete successes?