I planned to write my blog on the justice of going to war for both Hamas and Israel in the recent Gaza War now held in abeyance by a cease-fire, but yesterday (11 August 2014) Ambassador Baudelaire Ndong Ella of Gabon on behalf of the UN Human Rights Council announced that William A. Schabas had been named chair of a new panel of international experts charged with investigating “all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014.” Was this to be a repeat of the Goldstone Commission?
Why international human rights law and not just international humanitarian law? Why in the occupied territories including East Jerusalem? And why is the Gaza Strip presumed to be part of the Occupied Territories? Why start on 13 June 2014 when Israel responded to an escalation of rocket attacks from Gaza with an air offensive and not earlier when, after a lull in May, Hamas escalated its rocket fire at Israel significantly? Why is any investigation of what Hamas did in Israel not part of the articulated mandate? The Commission is instructed “to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults.”
Given the wording, it is no surprise that the EU, a vocal critic of Israel, called the resolution setting up the commission as “unbalanced, inaccurate, and prejudges the outcome of the investigation by making legal statements.” The US called it “yet another one-sided mechanism targeting Israel.” Why did Bill Schabas accept the chair of the inquiry given this self-evident bias?
One other panelist is Doudou Diene, a former UN prosecutor and “Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and related intolerance”, a scholar from Senegal. He spoke at an anti-racism rally on 14 May 2009 and declared that, “racism is rooted in slavery and colonialism, including settler colonialism.” Israeli occupation of Palestine continues a tradition of settler colonialism and racism he insisted.
The third announced panelist, Amal Alamuddin, declined to take up the position and one can only speculate whether she was chosen because she is an Arab from Lebanon or because she is engaged to George Clooney and has celebrity appeal or both. Without confirming her acceptance, the United Nations Human Rights Council communicated its role as a bumbler. It had already established a well-earned reputation for an inability to investigate human rights issues impartially with respect to Israel for it had a long record of an anti-Israel animus. After all, Navi Pillay, the director of UN Human Rights Council, had already denounced (July 31, 2014) Israel for deliberately defying international law in its military offensive in Gaza and that world powers should hold it accountable for possible war crimes.
Though Pillay also said that Hamas had violated international humanitarian law by firing rockets into Israel, she did not denounce Hamas nor is Hamas specifically mentioned in setting up the investigation but Israel is. Israel initially indicated it would fully cooperate with an investigation if the panelists were truly impartial, but when the membership was announced, Israel declared that it would not cooperate and that the panel was a “kangaroo court”, an assertion that will surely endear Israel to Schabas and Diene. In contrast, Hamas welcomed “the decision to form an investigation committee into the war crimes committed by the occupation (Israel) against Gaza and it urges that it begin work as soon as possible.”
I will not review the Human Rights Council’s disreputable performance with the Goldstone Report on the Israeli-Gaza War in 2008-09 about which I have written extensively. Instead I want to discuss why Bill Schabas accepted the position. But first of all I have to state that I regard Bill as a friend and respect him as an eminent and worthy colleague. He has had an illustrious career and spent years as head of the Irish Centre of Human Rights after finishing his role as a Dean of Law in Quebec. He is very personable, has a great sense of humour and is truly a lovely individual. When I visited him at his home in Galway, Ireland, he took me around to the side entrance and asked what did I see? I saw some raincoats and boots but I could not imagine what he was expecting me to spot. “Don’t you notice? No heavy winter parka. No big snow boots. Would you choose Montreal over Galway?” I had asked him whether he was enjoying Ireland and he responded only semi-jokingly, especially given the over 200 days of rain in Ireland, that it was the weather and not academic opportunity that had drawn him to leaving Canada for Ireland.
Bill and I had shared a scholarly interest in the issue of genocide. He had published a legal study of the law of genocide that had made him the foremost legal expert on the topic. Further, we agreed, in contrast with many if not most of our fellow scholars in the field, that the term ‘genocide’ should be interpreted and applied narrowly and not used politically for its shock value to encompass ethnic cleansing and forced migrations.
When the Association of Genocide Scholars was formed, I was invited to join as an expert on the Rwanda genocide and as one of the co-editors of the Encyclopedia on Genocide. Though my colleague and fellow editor, Israel Charny, tried to dissuade me, I withdrew my membership at the second annual meeting partly because the scholars voted overwhelmingly to use genocide as a broad way to characterize a host of humanitarian crimes, but more because they did not give me an opportunity to speak even though they knew I opposed the motion and had indicated I wanted to explain my reasons for dissenting. I feared the bastard marriage of political activism and genocide scholarship and the intolerance and subjectivity that would bring to the field.
In a subsequent annual meeting when Bill Schabas was chair of the International Association of Genocide Scholars, a disruptive debate arose when Israel Charny denounced Martin Shaw’s use of genocide to apply to certain actions of Israel. Bill Schabas, though he agreed with the narrow use of genocide, chose to censure Israel Charny for his intemperate language and not Martin Shaw. Because the IAGS had “become too politically activist,’ a number of scholars left the International Association of Genocide Scholars to form a separate International Network of Genocide Scholars. Ironically, one of those to leave was Shaw who argued that the International Association of Genocide Scholars had become too political because it was too pro-Israel in its condemnations of Iranian President Mahmoud Ahmadinejad. Bill blamed the Charny-Shaw fight for his inability to mediate a merger between the two organizations, an interpretation adamantly denied by members such as Professor Juergen Zimmerer of the University of Sheffield who was part of the apolitical Network group. Charny charged the network with becoming a hotbed of anti-Israel rhetoric under the guise of being apolitical.
Bill Schabas and I both attended a workshop at the Centre for International Governance Innovation, CIGI, in Waterloo. I gave a paper which was very critical of Richard Goldstone’s role in the 2009 UN Human Rights Council report on Israel’s actions in Operation Cast Lead. My paper made Bill very angry. He did not take me on by addressing the arguments I offered or the evidence I gave, but defended both Richard Goldstone and especially his friend and colleague, Christine Chinkin, whom I insisted should have recused herself because she had taken a stand in public and in her writing denouncing Israel for its crimes against humanity in that Gaza War before accepting her position on the Commission. Bill insisted that Richard was a gentleman with the greatest of integrity.
But it was not his integrity that I questioned, but his judgment. The fact that he is and was a gentleman is and was irrelevant. I had complimented Christine Chinkin’s scholarship but argued that it was incumbent that an individual undertaking an inquiry be as impartial as possible. Bill, in disagreement with me, argued that as long as the individual was a person with a demonstrated record of scholarly skills and abilities, there was no necessity to recuse herself simply because she had made definitive and negative pronouncements on the subject beforehand and no reason that Richard Goldstone should have insisted she recuse herself before accepting his role as chair.
On 1 April 2011, following a debate with Avi Bell in California, Goldstone retracted his claim that it was Israeli government policy to deliberately target citizens. On 1 April 2011, Goldstone retracted his claim that it was Israeli government policy to deliberately target citizens, saying “While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.” (my italics) Two weeks later, the three other members of the so-called fact-finding mission on the Gaza conflict of 2008–2009, criticized Goldstone’s recantation and insisted that the report was valid. Bill also took a stand on this issue and insisted that Goldstone had not retracted the report. Bill was literally correct in that Goldstone had not retracted the report, but Goldstone had retracted the major finding that Israel was guilty of an international humanitarian crime because it had deliberately attacked civilians.
However, the major reason Bill defended the report was not simply his deep belief in gentlemanly conduct with colleagues however intemperate they become about issues or actions of states. It is his deep belief that impartiality is not only a chimera but a misleading and even destructive criterion in drawing up commissions of inquiry or tribunals or selecting their agendas. For all international law is inherently political. Thus, though he himself has pronounced many times on Israel’s international criminality, he sees no need to recuse himself because he is a scholar with integrity.
His views have been made known in a number of papers, but particularly in an interview he gave to Victor Tsilonis that was published in the interdisciplinary journal, Intellectum under the title, “International Protection of Human Rights and Politics: An Inescapable Reality”. In that interview, Schabas insisted that the Yugoslavian Tribunal had not only been political but it could not have been otherwise. His example: the Security Council “created a Tribunal for Yugoslavia but it did not create a Tribunal for Israel”. “This is the political dimension of the contemporary tribunals,” Schabas insisted. So he would not expect a fact-finding inquiry into the recent Gaza war to be anything but political. Hence, he went onto say, “I believe that pretending the prosecution of Sudan is not political is a mistake too. Of course it is political. Why are we going after the president of Sudan for Darfur and not the president of Israel for Gaza? Because of politics.”
Bill is not anti-Israel. He is, after all, on the board of the Israel International Law Journal. He does not insist that Israel is guilty of the most serious international humanitarian crimes. But he is certain that Israel did commit international humanitarian crimes. He has even explained why Israel has been singled out and why the country comes in for such harsh condemnation. “I think the reason why many people in the world are so upset about the atrocities in Gaza is not because of the bombardment of facilities in Gaza in January and in December of the last year (2008) but because of our unhappiness about the general political situation there. It is because the people of Palestine are still being denied their right of self-determination”.
Bill defended the Palestine Authority’s bid to be recognized as a state so it could refer Israel’s conduct to the ICC. Furthermore, he criticized the prosecutor at the ICC for not ruling that Palestine was a state for purposes of bringing an action before the ICC. In the arguments he offered, he stated that, the belief that the Prosecutor exercises a judicial function, independent of political concerns, is a myth. To reiterate, Bill believes that all international humanitarian law is political and though he is not a fanatical anti-Zionist, he is strongly critical of Israel and has expressed many times his conviction that Israel is guilty of crimes against international humanitarian law.
Bill not only argues that inquiries are necessarily political but defends a particular political approach that begins with the fundamental need for and justice of Palestinian self-determination. He has a preoccupation with Israel in particular. He discussed the death penalty in general, on which he is also an expert, and was asked, “There are many people in the UK who say ‘we are against death penalty but we have one exception, Osama bin Laden’. What would you say about that?’ Without going into the accuracy of claim or the targets of his criticism, the one country that came to his mind in a discussion of capital punishment was Israel. “I thought we would mention only Israel. Because Israel in its history has only carried out the death penalty once, in the case of Eichmann. Israel is still not a strictly abolitionist country because they still are for the death penalty but have only used it once and I think they have imposed it, they have pronounced it in one other case but then they found that the man was innocent and released him.”
Without getting into Israeli policy on capital punishment or Bill’s factual claims, his preoccupation with Israel mirrors that of the world. But he is clearly and ostentatiously on the side of Israel’s critics. He has called for both Netanyahu and Peres to be put on the block for prosecution for crimes against humanity by the international community. He has defended both the Durbam conference on racism and former President Mahmoud Ahmadinejad of Iran in his blog in 2009 as only a “provocative politician.” In a conference in June of last year (2013) in Geneva Of the Unrepresented Nations and Peoples Organization, delegates documented the persecution of minorities in Iran, namely Arabs, Azeris, Baluchis, Kurds, the Ahwazi Arab minority, Christians, Jews, Sufi Muslims, Sunni Muslims and Zoroastrians and especially Bahai’s.
Kamram Hashemi, director of Iran’s Centre for Human Rights and Cultural Diversity and a former senior officer in Iran’s foreign ministry, was supervised by Bill for his PhD at the Irish Centre for Human Rights. Schabas served as one of six commissioners on the Iran Tribunal Truth Commission that was held for a period of five days from 18 to 22 June 2012. At the Human Rights Conference in Tehran that he co-sponsored with Hashemi, he was in the delightful company of North Korean delegates. Though he has been critical of the Iranian regime, he also enjoys close ties with prominent Iranians, and, more importantly for our purposes, that regime has been a backer of Hamas. At the same time, his anti-Israel bias is clear.
Thus, though Bill should recuse himself from serving on the Commission, he will not. And Israel is correct to expect a very loaded report critical of its conduct.