Next UPR of Israel without Israel?
The Universal Periodic Review is at a decisive stage. Firstly, the second cycle began earlier this year, in May, and as most stakeholders know, it has to focus on the implementation of recommendations. It is time to take a qualitative leap forward, and collaborate together further. Secondly, for the first time in the short history of the UPR, one State has decided not to participate in its own review, namely the State of Israel.
The strength of the UPR is its universality, which forms the foundation of the mechanism as a whole. An equal treatment of all States reviewed in the UPR is vital in order to maintain the success achieved so far: 193 States were reviewed during the first cycle, and the process could not afford to have States miss their own review during the second cycle, especially when this is time to address implementation.
This universality requires full participation of stakeholders, both as recommending and reviewed States. As a recommending State, Israel made 129 recommendations to 36 States from all regional groups. As a State under review, Israel received 164 recommendations from 45 States. The State of Israel has participated in both these regards, with a ranking of 51st in the list of states most frequently making recommendations, and 27th in the list of states with the highest number of received recommendations. The State of Israel is very active and its participation does matter at the UPR.
The decision of Israel to "suspend its cooperation with the Office of the High Commissioner for Human Rights, the Human Rights Council and its subsequent mechanisms" last May is for the first time challenging the universality of the UPR. It is worth noting that such a unilateral decision of suspension has no legal ground. Nonetheless, as Israel maintains its position, most stakeholders fear that if Israel does not participate in the review scheduled for 29 January 2013, such a precedent would open the door for other States to withdraw, thus endangering full participation in the UPR.
Suspending cooperation with the Human Rights Council (the Council) is a decision with serious consequences to face, and such a move is unique. It prevents a State's full membership of the international human rights community, one of the main areas for international cooperation. By taking this action, Israel is marginalising itself. We do not expect that other States will be content to pay the consequences of this kind of decision.
However, the means to address this unprecedented situation are not yet defined in Council resolution A/HRC/RES/5/1, the legal document defining the modalities of the UPR process: a legal gap exists here, as there are no clear definitions of "cases of persistent non-cooperation with the mechanism" (art. 38 resolution 5/1) or the command to "Fully involve the country under review" (art. 3 (e) resolution 5/1). What does the term "involve" actually mean? Does it mean the State under review has to be attending and participating in the room during the review? One could argue that by offering several invitations to Israel to take part in the review, the Council involved the country: 1/ Israel refused to submit a national report; 2/ it has been invited by the President of the Council to do so but has not responded positively; 3/ the President of the Council has also invited Israel to be present at the drawing of lots of its troika on 14 January 2013. If Israel is not present that day, one could argue that this accumulation of non-cooperation is "persistent". Based on those elements, the Council could then take a decision before the review of Israel scheduled on 29 January 2013.
Two solutions can be envisaged by the Council: firstly to postpone the review, or secondly to hold the review without the presence of the State under review in the room. Postponing the review could motivate new States to request the same treatment in the future; holding the review without Israel could motivate States to disengage from the UPR, the latter no longer being seen as a cooperative mechanism. As far as we can foresee today, no perfect solution could be achieved, unless Israel chooses to reconsider its decision. The exceptional decision taken by Israel necessitates an exceptional response from the international human rights community.
UPR Info promotes the universality of the UPR, a principle which has been key to its success. All States have to be equally treated; in order to maintain this universality, no State can be given favourable treatment. However, in this case, the State under review, namely Israel, decided to step back from the international human rights community. There are no provisions in the texts to immediately respond to the exceptional situation, and according to the opinions we collected, Human Rights Council members would favour a postponement of the review of Israel, thus opening the door for other reviews to be delayed.
UPR Info calls on the Human Rights Council to take a decision regarding the review of Israel before 29 January 2013, and to provide the conditions of the review. If the Council does not manage to reach a decision, the review should take place without the presence of Israel, in order to maintain an equal treatment of all States.
UPR Info calls then on the Council to adopt a resolution in March 2013 defining the meaning of "persistent non-cooperation", aiming to avoid any loophole in UPR modalities.
Finally, UPR Info calls on the State of Israel to fully cooperate and to resume without delay its relationship with the Council.
While Israel has decided to face the consequences of staying out of the international human rights community, this community should do everything possible to keep the universality of the UPR as a non-negotiable and irremovable standard.