Marjorie Cohn
Truthout / February 22, 2023
An independent human rights expert was denied a post for accurately criticizing Israel.
As the new right-wing Israeli regime ramps up its oppression of Palestinians, the Biden administration has taken its capitulation to Israel to a new and absurd level.
After nominating an independent expert to serve on a human rights commission, the U.S. State Department withdrew the nomination because the expert accurately called Israel an apartheid state. A week later, the United States prevented the United Nations Security Council from voting to condemn Israel’s illegal settlements in Palestinian territory.
On February 10, the State Department nominated Professor James Cavallaro as an independent expert on the Inter-American Commission on Human Rights (IACHR). Cavallaro is “a leading scholar and practitioner of international law with deep expertise in the region as well as the Inter-American human rights system,” the State Department declared. Cavallaro, executive director of the University Network for Human Rights (UNHR), was a member of the IACHR from 2014-2017 during the Obama administration and even served as its president.
IACHR commissioners are independent human rights experts, not spokespersons for their countries’ foreign policies. They hear cases about massacres, extrajudicial killings, torture and disappearances only in the Americas. They have no jurisdiction over Israel.
But that didn’t stop the State Department from withdrawing Cavallaro’s nomination on February 20 after The Algemeiner, a U.S.-based Jewish newspaper, criticized him for (correctly) describing Israel as an “apartheid state” and accusing Israel of “atrocities.”
Cavallaro also ran afoul of the Biden administration by criticizing House Minority Leader Hakeem Jeffries (D-New York) for his close relationship with the powerful pro-Israel lobby, American Israel Public Affairs Committee (AIPAC). Cavallaro tweeted that Jeffries had been “Bought. Purchased. Controlled” by AIPAC. Indeed, in 2020, Jeffries told an AIPAC meeting that “back home in New York City we consider Jerusalem to be the sixth borough.”
In defending the withdrawal of Cavallaro’s nomination, State Department spokesperson Ned Price said, “[Cavallaro’s] statements clearly do not reflect U.S. policy. They are not a reflection of what we believe, and they are inappropriate to say the least.”
Cavallaro: ‘No remit over Israel & Palestine’
But an independent expert is just that — independent. Cavallaro would not be representing the United States if he served on the IAHRC.
As an independent expert, “I would not have represented the United States government and I would have had absolutely no remit over Israel and Palestine!” Cavallaro told Amy Goodman on Democracy Now! “The Inter-American Commission oversees human rights in the western hemisphere. That’s the other hemisphere, Israel and Palestine.”
Nevertheless, the State Department withdrew Cavallaro’s nomination so as not to anger Israel. Cavallaro would have served as an independent expert on the Americas. But he failed to pass the U.S. litmus test, which requires fealty to the illegal Israeli occupation of Palestinian territory.
Agnès Callamard, secretary general of Amnesty International, called the U.S. action, “A state driven attack on a brilliant human rights lawyer because of his view on Israel apartheid,” noting, “The U.S. government has not engaged with the legal and empirical bases of positions on Israel apartheid. Instead, it is censoring, shutting down debates, and threatening.”
Callamard’s sentiments were echoed by Omar Shakir, Israel and Palestine director at Human Rights Watch, who said the U.S. withdrawal of Cavallaro’s nomination “suggests that for the State Department, believing that Palestinians deserve basic rights disqualifies one from serving on a human rights body. Shameful and yet U.S. foreign policy in a nutshell.”
“While Cavallaro’s potential participation on the commission would have absolutely no impact on U.S. policy on Israel, the withdrawal of his nomination will have real consequences for human rights in the Americas,” the UNHR said. “Cavallaro has been a courageous and committed voice for justice for victims of human rights abuse across the region; as an experienced commissioner in his second term, he would have advanced the cause of human rights in the hemisphere significantly.”
“Human rights practitioners and scholars should not fear professional reprisal for expressing their views about human rights violations, especially those carried out by U.S. allies,” 83 leading human rights organizations, that include Human Rights Watch, B’Tselem, Center for Constitutional Rights and National Lawyers Guild International Committee, and more than 300 academics and advocates, including this writer, stated in an open letter to Blinken protesting the withdrawal of Cavallaro’s nomination to the Commission. “This undermines free expression, academic freedom, and the work of all human rights advocates, particularly those who do not have the same kind of platform as Cavallaro.”
The 450 signatories from 20 countries, including members of the IACHR as well as current and former UN special mandate holders, added, “The State Department’s move is harmful to the global human rights movement and undermines the credibility of the United States in advocating for human rights in other parts of the world.”
Israel is an apartheid state
Moreover, Cavallaro’s characterization of Israel as an apartheid state is accurate. Amnesty International, Human Rights Watch, the Israeli human rights organization B’Tselem, and Michael Lynk (UN Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967) have all called Israel an apartheid regime.
In his March 2022 report to the U.N. Human Rights Council, Lynk affirmed that Israel practices apartheid in the occupied Palestinian territory. “There is today in the Palestinian territory occupied by Israel since 1967 a deeply discriminatory dual legal and political system that privileges the 700,000 Israeli Jewish settlers living in the 300 illegal Jewish settlements in East Jerusalem and the West Bank.”
Lynk continued, “Living in the same geographic space, but separated by walls, checkpoints, roads and an entrenched military presence, are more than three million Palestinians, who are without rights, living under an oppressive rule of institutional discrimination and without a path to a genuine Palestinian state that the world has long promised is their right.”
Furthermore, Lynk reported, “Another two million Palestinians live in Gaza, described regularly as an ‘open-air prison’, without adequate access to power, water or health, with a collapsing economy and with no ability to freely travel to the rest of Palestine or the outside world.”
Lynk cited inhumane acts, extra-judicial killings, torture and the denial of fundamental rights to Palestinians. He also noted collective punishment, home demolitions, an abusive military court system and a high child mortality rate for Palestinians.
Apartheid is defined in the Apartheid Convention as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.”
Those acts include “legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms.”
In addition, the Rome Statute for the International Criminal Court defines apartheid as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention to maintaining that regime.”
Both the Apartheid Convention and the Rome Statute consider apartheid to be a crime against humanity. Although Israel has not ratified the Apartheid Convention or the Rome Statute, apartheid is prohibited by jus cogens, which means that all countries are bound by the prohibition against apartheid.
Preventing vote on Jewish settlements
The Biden administration continued its shameful capitulation to Israel by brokering a deal to avoid a U.N. Security Council vote on a resolution condemning illegal Israeli settlements in the occupied West Bank. If that resolution (which was scheduled for a vote on February 20) had come to the floor of the Council, the United States would have been in the awkward position of having to veto it in order to avoid angering Israel.
As President Barack Obama was leaving office, his administration (in an unprecedented move) abstained from a similar resolution. By preventing a Security Council vote on Israel’s illegal settlements, Biden failed to demonstrate even the modicum of reason exhibited by the Obama-Biden administration.
After Israel announced it was legalizing nine illegal settler outposts in the occupied West Bank and had approved the building of 10,000 new houses in current settlements, the Palestinian Authority (PA) backed a Security Council resolution denouncing the settlements. Resolutions passed by the Security Council are considered binding under the United Nations Charter.
But the Biden administration convinced the PA to back down from supporting the resolution in return for a “presidential statement” by the Security Council that criticizes the Israeli settlements. Israel agreed to temporarily halt its unilateral actions in the occupied West Bank for several months, suspend the demolitions of Palestinian homes and evictions for a few months, and decrease Israeli military raids on Palestinian cities. Israel also agreed to increase Palestinian tax revenues by more than $60 million a year. The PA agreed to resume security coordination with Israel that the former had suspended after last month’s Israeli raid on the Jenin refugee camp which killed nine Palestinians.
The PA administers the occupied West Bank. The decision of the PA to withdraw the resolution “goes against the Palestinian national struggle,” Mustafa Barghouti, general secretary of the Palestinian National Initiative, told Al-Jazeera.
“We reject equating between two sides — one that is an aggressor and an occupier, and the other that is living under occupation and apartheid,” Barghouti said. “Some are saying we need to focus on diplomatic and political resistance, so why has the decision been withdrawn? Even diplomatic resistance is forbidden? Even resistance based on international law?”
Meanwhile, the Biden administration continues to uncritically support Israel’s illegal occupation of Palestinian lands to the tune of $3.8 billion in annual military assistance.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild
