T. Belman. The policy statement that Matas is criticizing was originally passed around 1980 and reflected a UN resolution. It was confirmed by the Harper Government a couple of years ago. Notwithstanding many requests to amend it, the government has not done so.
(Remarks delivered to the Lanny Remis Forum, Shaarey Zedek Synagogue, Winnipeg, 8 October, 2015)
by David Matas
The Government of Canada has a policy statement on Israel posted on the Department of Foreign Affairs and International Trade website under the heading “Canadian Policy on Key Issues in the Israeli?Palestinian Conflict”. I have fourteen different concerns about that policy statement which I want to present to you today.
1) The description of the conflict should be recharacterized. What the policy refers to as the “Israeli-Palestinian conflict” forms part of a larger conflict.
The characterization of the conflict as Israeli-Palestinian suggests that the conflict exists between two peoples. However, that is not the nature of the conflict. Even characterizing the conflict as Israeli-Arab, though more accurate, is not an adequate description of the conflict. The conflict is better described as a conflict between anti-Zionists and those asserting the right to self determination of the Jewish people, or the struggle for the acceptance of the existence of Israel.
The description of the conflict as Israeli-Palestinian eliminates several players from the anti-Israel side of the equation. That elimination plays into the anti-Zionist narrative which casts Israeli as the superior force dominating an underdog.
The reality is the opposite, a huge demographic, political, geo-strategic and military force of combined states in the region hostile to the very existence of Israel. This geopolitical behemoth exercises its weight not just in the region but globally in an effort to make Israel a pariah state everywhere.
2) The policy that
“Canada … supports the creation of a … territorially contiguous Palestinian state, as part of a comprehensive, just and lasting peace settlement”
should be dropped.
For a Palestinian state to be territorially contiguous, the West Bank and Gaza would have to be territorially contiguous. For the West Bank and Gaza to be territorially contiguous, Israel would have to be territorially discontiguous. There would have to be a corridor consisting of territory now within Israel between the West Bank and Gaza.
Is that really the policy of the Government of Canada? If it is, I would suggest that it be changed. It is inconsistent to support territorial contiguity of Palestine at the expense of territorial contiguity of Israel.
If this is not the policy of the Government of Canada, then at the very least the policy statement should be amended, to make clear that it is the policy that the West Bank and Gaza each should individually be territorially contiguous and not that Palestine as a whole should become territorially contiguous by means of a connecting corridor between the West Bank and Gaza.
My view is that Canada should not endorse a policy of territorial contiguity, even in amended form. Whether the West Bank and Gaza individually should be territorially contiguous should be a matter to be determined by negotiations between the parties.
A territorially contiguous Palestinian state is the negotiating position of the Palestinian Authority. For Canada to support this position in advance of a negotiated settlement can have the effect of making the Palestinian Authority intransigent in holding on to this position and therefore of making a negotiated settlement more difficult.
The ideological wars against the existence of Israel are rife with assertions of principle applied only to Israel. The principle of territorial contiguity is one example.
There are a large number of states which are not territorially contiguous, including Spain which has a component surrounded by France, Italy which has a component surrounded by Switzerland and Russia which has a component surrounded by Lithuania and Poland. Even Canada, with its present territory, prevents the territorial contiguity of the United States, because Canada sits in between Alaska and the rest of the continental United States. Canada should not be asserting a principle of territorial contiguity against Israel when it does not apply that principle against itself or other states.
3) The policy that
“Canada recognizes the Palestinian Authority (PA) as the governmental entity in the West Bank and Gaza.”
needs elaboration.
The Palestinian Authority no longer uses that name to refer to itself. Instead, as of January 6, 2013, the Palestinian Authority calls itself the Palestinian State or Palestine.
In November 2012, Canada voted against the United Nations General Assembly resolution granting non-observer state status to Palestine. In my view, Canada was right to do so. This component of Canada’s policy should be stated on the Foreign Affairs website. The policy should state the Canada does not recognize Palestine as a state and will continue to refer to the governing structure of the West Bank and Gaza as the Palestinian Authority despite the fact that some others refer to the Authority as the Palestinian State or Palestine.
4) The policy that
“Canada also recognizes the Palestine Liberation Organization (PLO) as the principal representative of the Palestinian people.”
should be dropped.
The policy elsewhere states that “Canada … supports the creation of a democratic … Palestinian state”, a position I endorse. It is though inconsistent with democracy to support one particular political party as the principal representative of a people. The representative of a people is whomever the people in free and fair elections decide to choose. The choice belongs to them and not to the Government of Canada.
I do not expect the Government of Canada to state that whoever at any particular time forms the Government of the State of Israel is the principal representative of the Jewish people. If the Government of Canada insists on designating who is the principal representative of the Palestinian people, which I do not think they should, it should do the same for the Jewish people.
5) The policy that
“Canada considers the status of Jerusalem can be resolved only as part of a general settlement of the Palestinian?Israeli dispute. Canada does not recognize Israel’s unilateral annexation of East Jerusalem.”
needs rephrasing.
The two sentences in this policy statement contradict each other. The first states the issue can be resolved only through negotiations. The second purports to resolve the issue right now. The second sentence should be dropped.
Someone born in Jerusalem should be allowed to have Jerusalem, Israel as the place of birth in his or her passport. Canada used to allow this before April 1976 but does not any more. Canada should revert to its former policy, at least on this point, to allow this to happen.
6) The policy 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.”
needs rewording to encompass Jewish refugees from Arab countries.
A just solution to the refugee issue, for all refugees created by the conflict, is central to a settlement of the conflict. There were more Jewish refugees from Arab countries than there were Palestinian refugees from Israel. It is one sided to mention only one refugee population.
Moreover, resolutions 194 and 242 do not, as the policy statement suggests, refer only to Palestinian refugee. These resolutions refer to refugees generated by the conflict generically.
Resolution 194 dates from 1948. At that time the term “Palestine” was used to refer to the former British Mandate Palestine. The term was not then used as it used now, to refer to the territory of the eventual Palestinian state.
The negotiating history of resolution 242 of November 1967 shows that it purposely used a broad term, rather than a Palestinian specific term, in order to encompass the situation of Jewish refugees from Arab countries. Describing the resolutions the way the policy statement does is both unreflective of the actual wording and a misstatement of history.
The website states:
“In March 2014, the Government of Canada officially recognized the experience of Jewish refugees from the Middle East and North Africa, who were displaced after 1948. This recognition does not diminish or compete with the situation of Palestinian refugees.”
This statement does not do justice to the Jewish refugee experience in the context of the Arab-Israeli conflict. The statement by saying too little about the Jewish refugee experience, ignores its significance, even its relevance to the Arab-Israeli conflict.
7) The policy that
“A solution to the Palestinian refugee issue … should respect the rights of the refugees, in accordance with international law. Canada has played a prominent role in the search for a viable and comprehensive solution to the Palestinian refugee issue, including through continuing to focus international attention on improving the situation of the more than four million Palestinian refugees.”
is self contradictory and needs rewording.
The four million people the Palestinian Authority designates as refugees are not refugees as that term is understood in international law. The United Nations Relief and Works Agency (UNRWA) has a definition for Palestinian refugees which conflicts in a number of respects with the definition of refugees found in international law.
The number of Palestinian refugees is artificially inflated to include those who are locally integrated, those who have the substantive rights of nationality in the country in which they live, those who have dual nationality, and those who have a durable solution where they are.
The number of four million encompasses former temporary residents of British Mandate Palestine. It includes as well descendants of the original refugee population without reference to whether the descendants meet international law refugee criteria.
The number is further artificially inflated by the refusal of this population to accept resettlement. The number also, contrary to the international law of refugees, encompasses those who refuse to renounce armed activity as well as those complicit in acts of terrorism.
Many, indeed most, of the four million are not refugees at international law. The reference to four million or for that matter any specific number should be dropped.
8) The policy 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). The Fourth Geneva Convention applies in the occupied territories”
ignores relevant legal issues and needs rewording. The reference to occupied territories and the Fourth Geneva Convention should be dropped.
In order for the Fourth Geneva Convention to apply there has to be both an occupying and occupied power. Both have to be states. There is no state which claims sovereignty over the West Bank, Gaza and East Jerusalem. So there is no occupation of these territories.
Of the four territories listed, only the Golan Heights is claimed by another state, Syria. Legally, this is the only territory which could be characterized as occupied under the Fourth Geneva Convention.
Even for the Golan, the policy goes too far. Who should have permanent control over the Golan is a subject of dispute between Israel and Syria. The matter should be determined by negotiations between the parties. In principle, whatever the disposition to which the parties to the dispute over the Golan should agree should be acceptable to Canada.
East Jerusalem and the West Bank used to be under Jordanian control before the 1967 war. Gaza used to be under the control of Egypt. Jordan is not now though the occupied power for East Jerusalem and the West Bank because Jordan does not assert a claim to these territories. Similarly, Egypt is not the occupied power for Gaza since Egypt does not assert a claim to this territory.
Some political rhetoric asserts that it is the Palestinian people who are now the occupied power of East Jerusalem, the West Bank and Gaza. This political rhetoric though rings hollow in part because Hamas, which governs Gaza, albeit illegally, by force, rejects it.
As well, Canada never considered Egypt an occupying power of Gaza nor Jordan an occupying power of the West Bank and East Jerusalem when those states had control over those territories. Yet, legally, the control Israel has now over those territories has the same legal nature as the control Egypt and Jordan had then.
9) The views that
“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 settlements also constitute a serious obstacle to achieving a comprehensive, just and lasting peace.”
are problematic both from a legal and policy perspective. This whole paragraph should be dropped.
Even if one puts aside the previous objection that the territories, except the Golan Heights, do not fit within the Fourth Geneva Convention, even if one imagines that the Fourth Geneva Convention were to apply to all four listed territories, Israeli settlements would not violate that Convention. The Convention prohibits forcible transfer of the population of the occupying power to the territory of the occupied power. The Government of Israel has not forced any of the Israeli settlers to live in the listed territories. They all live there voluntarily.
Moreover, the settlements are not an obstacle to peace, let alone a serious obstacle. It is the objection to the settlements that is a serious obstacle to peace.
The very word “settlements” is an invidious label for what is in reality just Israeli Jews in the neighbourhood. Having Jewish neighbours should not be an obstacle to peace. Refusing to have Jewish neighbours is an obstacle to peace.
There are more Arabs within Israel proper both in absolute numbers and as a percentage of the population than there are Jews in the West Bank. Neither the presence of Arabs in Israel nor the presence of Jews in the West bank in principle should be labelled by the Government of Canada as an obstacle to peace.
10) The policy that
“Canada opposes Israel’s construction of the barrier inside the West Bank and East Jerusalem which are occupied territories. This construction is contrary to international law under the Fourth Geneva Convention.”
is out of touch with both law and reality and needs rewording.
Even if one puts aside the legal concerns expressed previously about referring to the West Bank as occupied territory, about both taking and not taking a position on East Jerusalem, let alone referring to it as occupied territory, about applying the Fourth Geneva Convention to territory to which it does not apply, this statement manifests error. Let us assume, contrary to my own view, that the Fourth Geneva Convention does apply to the West Bank. That Convention does not prevent the building of structures to prevent terrorist attacks. There is nothing in the Convention to prohibit such an effort.
There is rather a balance at international law which has to be drawn by a military occupying power between taking security precautions and disrupting the normal daily lives of the occupied population. There is a test of proportionality which has to be met, not for the security barrier as a whole in isolation, but rather for each component of it. Only for that component of the barrier, if any, where the disruption to the locals is disproportionate to the security benefit gained can one say, even in a case where the Fourth Geneva Convention applies, that it has been violated.
The notion that Israel has no security concerns in the West Bank is farfetched. Jewish residents in the West Bank are under attack simply because they are Jewish. Their safety is a legitimate concern of the Jewish state.
11) The policy that
“Canada not only opposes Israel’s construction of a barrier extending into the occupied territories, but also expropriations and the demolition of houses and economic infrastructure carried out for this purpose.”
also needs rewording.
This sentence is problematic, even in addition to the previous concerns raised. If one accepts in general the principle of proportionality set out above, as one must if one accepts international law, there is then no prohibition against expropriations and the demolition of houses and economic infrastructure. Expropriations and the demolition of houses and economic infrastructure become rather part of the proportionality equation.
Moreover, in assessing the disruption from expropriations and the demolition of houses and economic infrastructure, one must take into account the fact of compensation. Israel has compensated those whose property has been expropriated and whose houses and economic infrastructure have been demolished in order to build the security barrier.
Even in a situation where disruption from expropriation or demolition without compensation may outweigh security benefits, disruption from expropriation or demolition with compensation may well not. Canada should not oppose expropriations and demolitions without qualification but only, taking into account compensation paid, those expropriations and demolitions which are disproportionate to the security benefits gained.
12) The statement that
“Every year, resolutions addressing the Arab?Israeli conflict are tabled in the United Nations, such as at the United Nations General Assembly and the Human Rights Council. Canada assesses each resolution on its merits and consistency with our principles.”
should be changed.
All of the UN resolutions are critical of Israel in one way or another. Indeed, that is their sole purpose. Israel, like any other state, can, in some aspects, be criticised. No state is perfect. Yet criticisms which might legitimately be made within Israel about the government as part of internal democratic debate are out of place in the United Nations when Israel alone or disproportionately is singled out for criticism.
It is blinkered to look at resolutions about Israel at the UN in isolation, divorced from the context in which they are found. Canada should not vote in favour of a resolution merely because the resolution, decontextualized, is meritorious and consistent with Canadian principles.
At the United Nation, resolutions critical of Israel have become an alternative to negotiations. They are attempts to delegitimize the existence of Israel, to demonize the Jewish state. They manifest a double standard, imposing standards on Israel not imposed on other states. They consume time which would be more properly used to focus on gross human rights violator states. Gross human rights violators vote and speak against Israel as a strategy for avoiding scrutiny for their own behaviour.
The Canadian policy statement elsewhere, rightly, expresses concern about “the polemical and repetitive nature of many of the numerous resolutions” on the Arab Israeli conflict. That concern should be reflected in declining to support at the UN even those resolutions on the Arab-Israeli conflict that Canada, in isolation from the UN context, would find meritorious and consistent with Canadian principles.
13) The statement in the policy that “Canada supports Israel’s right to live in peace with its neighbours within secure boundaries” is understated and needs to be put in stronger terms.
To place that position as one of a list, even if it is placed first, does an injustice to the nature of the conflict, the central role of anti-Zionism in fuelling the conflict. Anti-Zionism victimizes Palestinians as much as Jews.
Anti-Zionists incite Palestinians to attack Israel. Israel defends itself. The Palestinians suffer the effects of this self-defence.
Anti-Zionists maintain an artificially large Palestinian refugee population and then assert a legally non-existent right of return. This combination is an attack on the existence of Israel by demographic means. It is Palestinians who suffer the refusal of anti-Zionists to contemplate resettlement or local integration for this population.
This commentary has focussed on what the policy does say and, in my view, should not have been said. Yet, one has to consider also what was not said, and should be said. The policy needs to say something about the driving force of anti-Zionism in the conflict and the need to combat it.
14) My last concern is one of chronology. The concerns I have stated here are not new. The policy position on the website is several years old. The Wayback Machine on the internet reports the first capture on the site on July 6, 2011.
I am senior honorary counsel to B’nai Brith Canada, and B’nai Brith Canada raised all these concerns in a letter to then Foreign Minister John Baird, with copies to Prime Minister Stephen Harper and Minister Jason Kenney, in November 2013, almost two years ago. The Government did make one change after our letter, correcting the name of the Palestinian Prime Minister, which was out of date.
The website in November 2013 had Salem Fayyad as Prime Minister even though he had ceased to hold that function in April 2013. Other than correcting the name to Rami Hamdullah and adding a note that in March 2014, the Government of Canada officially recognized the experience of Jewish refugees from the Middle East and North Africa, who were displaced after 1948, the website remains substantially unchanged since our letter.
Conclusion
The current Government has a reputation of being a friend of Israel. Yet, this policy is at odds with that reputation. This policy is not just not friendly to Israel. It is not even neutral.
This policy no doubt reflects the views of bureaucracy. Yet, this Government has been the Government for over ten years. The Government must take responsibility for this policy. It cannot attribute this policy to the bureaucracy alone.
Moreover, this policy, in its current form, is not just a carryover from the policies of previous governments. As noted, the first internet record of its existence is July 2011, well into the currency of the current Government.
Furthermore, the policy has recently been considered and reaffirmed. The website states that it was last modified June 24, 2015.
The Government of Canada has made many positive statements in support of efforts Israel has been making to defend itself against anti-Zionism. But this policy statement sits uneasily with those positive statements. The Government needs to be consistent. As long as this is policy is the policy, the Government is anything but.
David Matas is a Winnipeg lawyer.
As a Canadian I took pride in the stance taken by the Canadian government that was supportive of Israel. This article, however, disappoints me greatly – it is not the article which is disappointing, it is the government of my country. There is a
Canadian lobbying organization that speaks for Israel, and perhaps some pressure should be put on the government to make necessary changes to meet reality.