The Deplorables I – Jeffrey Lord

The Deplorables I – Jeffrey Lord

by

Howard Adelman

When I listen to the sycophants, the apologists, the surrogates, the spokespersons for Trump Two-Two, I want to scream – not on behalf of Hillary Clinton, but on behalf of reason, on behalf of enlightenment values, on behalf of truth. Never mind Trump. His surrogates – Jeffrey Lord, Kayleigh McEnany, Corey Lewandowski, Kellyanne Conway, Andy Dean, Katrina Pierson, Bruce Lavell, Darrell Scott, Mark Burns, Scottie Nell Hughes, Omarosa Manigault – are deplorable in the true sense of the word. They deserve our strong condemnation. Not simply for the man they are defending, not simply for the points they are making, but for their disrespect for the rules of the use of rational language.

I am not talking about the birthers and believers that the world is flat and that the destruction of the Twin Towers was a Zionist conspiracy. I am not talking about the David Dukes, the racists or the defenders of the Second Amendment who seem willing to take up arms in the name of an invented version of part of the American constitution. These are far beyond being deplorable. I am referring to those Trump surrogates who belong to the chattering classes, but seem to be incapable of mounting a rational and evidence-based argument. It is a disgrace. It is shameful. I cannot believe this goes down the line and deep into the Republican Party, but listening to these surrogates makes me suspect that the party has been deeply infected with irrationality and may not be able to be salvaged this time no matter who wins or loses the election. That is lamentable, but it is also inexcusable. The long term history of a once noble party is being sacrificed on the altar of irrationality. Political contests have been transformed into a blood sport in which illogic and the misuse of language have been substituted for rational debate.

This is truly dreadful and atrocious, unpardonable and dishonourable. The situation is deplorable in all the senses of the word. The leading surrogates who contribute to this folly are even more deplorable than the bullying, blowhard, lying Trump Two-Two. For he is a product of business and a vehicle for entertainment. The surrogates, on the other hand, claim and represent themselves worthy of belonging to a league which requires rational discourse and argument. But they lack any one of its central characteristics.

The worst of it all is that these surrogates are usually set off against, not simply Hillary Clinton surrogates, but against quite brilliant independent analysts like Marc Lamont Hill, Joy-Ann Reid and Angela Rye (who both said to Corey Lewandowski when he put down President Obama and demanded that Obama release his Harvard transcripts – as if this bore any equivalence with releasing tax returns – “You are so out of line right now. Tell your candidate to release his tax returns. Two words: Tax return” and each insisted that “In this moment, I’m going to Beyoncé you: ‘Boy bye,’” Rye added, “You’re so out of line right now.”) Anthony Kapel “Van” Jones (Trump branded him “Mad Max America”) and my personal favourite, Charles Blow, can be added to this list. All are constantly forced to participate in a sham debate in which the proponents of irrationality are given half the media time and these journalists are reduced to taking on the irrationality of their opponents rather than the substantive policies at stake. (As an aside, the Beyoncé lyric comes from her song “Sorry” in which a woman dismisses her husband’s excuses for his affair.)
In accusing them of being deplorable, I am not asserting that the Trump surrogates are ignorant. They have mastered their notes and their rhetorical skills and exhibit them in different ways. I am not accusing them of being stupid. Just defenders and proponents of irrationality even as they demonstrate different degrees of nimbleness in their use of sophistry.

Let me illustrate with reference to each of the surrogates in turn taking on one problem at a time. Perhaps Jeffrey Lord is the person I have seen and listened to the most as a Trump surrogate. With his white hair, whimsical smile and laid back engagement in the debates, he offers himself as a serious defender of Trump Two-Two. He also has a long political pedigree having served in high office in the Reagan administration. There he must have honed his skills in defending Reagan trickle-down economics while burying fiscal conservatism in a bed of debt as Reagan tripled the gross federal debt from $900 billion to $2.7 trillion. Examine Jeffrey’s defence of Donald Trump’s refusal to make his tax returns public.

Arguments for releasing the tax returns are as follows:
• It is an established tradition going back to Richard Nixon
• It is an expectation of the voters
• It will provide evidence about whether or not he has been truthful about his charitable giving
• It may provide evidence or disproof of the suspicions of many and the evidence of a few that during the last decade, Trump’s businesses depend more and more on infusions of capital from Russian oligarchs connected with Putin and partners associated with disreputable dictators around the world
• Most of all, it will provide evidence about whether he pays his fair share of taxes in any reasonable definition of fairness.

Arguments for not releasing the tax returns are as follows:
• They are under audit and any taxpayer has the right to mitigate his tax exposure, an exposure that can be exacerbated by release of one’s financial situation
• The tax returns provide clues to how Trump operates his various businesses that may expose his positions unfairly to competitors
• The release of the information will provide an enormous distraction from the policy issues as reams of people try to mine the returns in the interest of exposing embarrassments. “He’s got a 12,000-page tax return that would create financial auditors out of every person in the country asking questions that would detract from his father’s main message.”
• Unlike other presidential candidates who were political pros, Donald Trump comes from the business world and his returns, as Donald Trump Jr. explained, amount to 12,000 pages in themselves creating an enormous fund for troublemaking.
• This is not a burning issue for the public.

What are the arguments offered in refutation of the claims of the opponents and in support of the Trump campaign position? Against the argument that this is a precedent going back to Richard Nixon, Jeffrey Lord argues that there have been 36 presidents who never made their tax returns public. What is omitted is that these constitute 36 of 43 presidents and 35 served prior to Richard Nixon. Many of these served prior to Abraham Lincoln when there were no personal income tax returns to make public. In any case, the argument does not take on the observance of a well established tradition over the last 7 presidents, excluding Gerald Ford who was not an elected president but nevertheless released a summary of his tax returns though not the entire income tax return. In other words, it is a tradition that extends over one-third of the period in which there have been income tax returns.

Jeffrey Lord doe not argue against the claim that there is a 47-year-old tradition. Jeffrey Lord does not argue that it is an illegitimate tradition. He demeans the tradition by citing irrelevancies to the case – what presidents before Richard Nixon did. He does not note that Richard Nixon resisted releasing his returns but was forced to do so. This is, of course, the well known red herring form of argument, that is an argument which is not an argument, but a distraction that is irrelevant and simply attempts to draw attention away from the issue.

Jeffrey could have argued that the appeal to tradition of the Democrats was itself a red herring since it does not follow that because the tradition had been established for 47 years that this alone made it a valid tradition to continue. That in itself is a form of a red herring argument, but one suspects that if Jeffrey opened that can of worms he would have had to engage in the argument about whether the tradition was a useful one well worth perpetuating for a number of reasons. So distraction rather than engagement seems the preferred course of avoiding a real dialogue.

How does Jeffrey Lord and Trump’s other surrogates handle the argument that the voters expect tax releases to be released? The answer – it is not a burning issue for voters. But the claim was not made that it was a burning issue, only that it was an issue for a large majority of voters overall (74%) and even a majority of Republican voters (62%). The surrogates, however, are probably right that this isn’t a burning issue. In a small sampling in Virginia, the voters were all bothered by Trump’s refusal to release his tax returns, but 17 of those voters were more troubled by Hillary’s emails while 11 who were more bothered by Trump’s refusal to release his tax information. Here again, as in the above case, Jeffrey Lord could have insisted that the Democratic case, even the case for the majority of voters, was itself a kind of red herring by concluding that since something is believed in widely does not make it valid. But again the argument is not engaged for the same reasons the first argument was not – because it would mean probing the merits of the practice whether or not a majority believed in it or not. Instead, the counter argument reverted to obfuscation and distraction by the use of the word “burning”.

This is, of course, as irrelevant as the first defence. Issues that are not “burning” in the public mind – the state of Korea’s nuclear arsenal is an example of one far less burning than the issue of release of incomes tax filings – but that does not make it an invalid subject for debate. An issue does not have to be a hot one searing the mind of the public and igniting their fiery wrath to demand attention. It may be only a smouldering rather than a red-hot torrid item, but the stonewalling and sidestepping and engagement in distraction present the possibility of making it a burning issue.

What about the issue of getting to the truth value of Donald Trump’s claims to have given millions upon millions to charity and the assertion that the tax returns would be able to confirm the claim or reveal it as false? Further, even releasing only this part of the tax return could put to rest the suspicion that the claim is an invention, a fabrication, a lie, an inquiry given steam by the evidence that the Trump Foundation had not received a dime of Donald Trump’s personal money since 2007 and that the money it receives has been donated to the foundation by others and then donated in the name of Trump without disclosing the original contributor. However, there is other evidence that in 2009 Trump donated almost a million dollars to charity, $100,000 of that sum ironically to the Clinton Foundation which he subsequently insisted needed to be investigated.

An investigation of Trump’s own foundation was initiated by Eric T. Schneiderman, the Attorney General of New York, for making an illegal $25,000 donation to a campaign group affiliated with Florida Attorney General Pam Bondi in 2013 when she indicated that she was considering joining Schneiderman’s fraud case against Trump University. This is not just an impression of illegality. Non-profits are legally forbidden from contributing to political campaigns.

How did Jeffrey respond? He called Schneiderman a “sleaze” on CNN’s OutFront. This is another kind of red herring illogic, usually called an ad hominem argument in which you attack and insult the messenger instead of dealing with the merits of the claim. It is relevant that Schneiderman is a Democrat, supports Hillary Clinton and may even sit on one of her campaign committees. This creates a perception of conflict of interest between his political affiliation and responsibilities as an Attorney General. But it is incumbent on the accuser to demonstrate the conflict of interest, especially in America where senior civil servants are usually political partisans even when not elected, which they often are.

A perceived conflict of interest takes place when an individual can derive personal, usually financial, benefit from actions taken in their professional capacity. Though Schneiderman’s political beliefs would benefit, there is no evidence or even suggestion that there would be repercussions on his pocket book. Further, if conflict of interest was defined as the tension between one’s political conviction and one’s professional responsibility, then the whole American political system would have to be shut down.

What about the claim that the Trump organization receives capital from Putin’s oligarch friends and other authoritarian leaders across the world that will lead to a conflict of interest problem between Trump’s motivation to protect his corporate interests and the interests of the United States of America? Newsweek in its exposé never offered any evidence that any of these activities were illegal, though one Virginia voter named Beverly said that, “I’m concerned what Trump’s hiding in there. There may be business dealings, illegal business dealings. He’s really good at sweeping things out, and I really think he’s hiding something.” Newsweek did point out the conflict of interest this situation would create between Trump’s personal economic interest and that of the United States. That is a real conflict of interest for an individual with multiple financial interests any one of which could corrupt the motives or professional decision-making of the individual if that individual were to gain high office.

Jeff wrote an article (“The Liberal Media Unhinged,” 13 August 2016, for mrac NewsBusters) in which he derided The New York Times, The Washington Post and the “liberal” media in general for using ad hominem arguments and personal insults aimed at Donald Trump that give “’permission from a whole segment of America’s political and liberal media class’ to kooks out there to do whatever – no matter how dangerous, despicable or out of bounds – to Donald Trump.” In other words, it is not Trump Two-Two that engages in the use of insults and ad hominem arguments and raises the possibility of violence against Hillary Clinton, but the liberal press who do so against Donald Trump and give license to commit violence against Trump Two-Two. This is another red herring – accusing one’s opponent of the failings you yourself seem so transparently to demonstrate through hyperbole and the use of flagrantly false analogies.

I will only make two further points about this patently silly argument. The first is the use of the adjective or noun “liberal”. Michael Brenner in a recent article on the distortions imposed on our language took as his first case the denigration of the term “liberal.” Barack Obama in his address last evening to the CBC, not the Canadian Broadcasting Corporation but the Congressional Black Caucus and supporters of its foundation, articulately spelled out what it means to be liberal, though it is noteworthy that he avoided the term since it has been so hi-jacked by neo-liberals at the same time as it has been so denigrated that he had to concentrate on its substance. Liberalism means expansion of voting and political rights, equality of justice, increasing the opportunities for all. For Obama, the essence of liberalism is progress based on these measures of improving society on these and other fronts. Liberalism entails the fairer distribution of wealth and making the promise of equality a reality and not just an aspiration. In its idealism, the collective good is equated with the benefits actually enjoyed by individuals.

One can oppose liberalism in the conviction that these benefits are better achieved by decreasing rather than enhancing the role of government, by insisting that a government dedicated to insisting that the collective good and the individual good are best combined, not when the two are presumed to enjoy a synergistic relationship, but when they are seen as in tension and the government as a purported deliverer of fairness is consistently reduced. That is a reasonable ideological division. But when the term “liberal” is used as a slur, when the term is equated with those who lie and malign by the defenders of Trump Two-Two, who has unarguably made a profession of lying, using ad hominem arguments and insults, one despairs for the cause of reason. When words are hijacked and deformed by the language Janissaries, when they laud Trump Two-Two for magnificently ripping “the mask of rationality off the liberal media,” we enter the topsy-turvy world of Alice in Wonderland who opined in Lewis Carroll’s magnificent satire that, “If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrariwise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?” When Jeffrey refers snidely to the liberal devotion to science – which he places in apostrophes – in the climate change debate, we know we are in the world of the chattering class equivalent of the flat earth society.

What about the argument that releasing the tax returns will provide evidence about whether Trump Two-Two pays his fair share of taxes? Jeffrey Lord’s defence: Democrats “will make a problem out of something. Something that could be perfectly ordinary and average, and they will make a problem out of it. This is what politicians do.” The tax returns could be perfectly ordinary, but may not be. And the issue is whether the release of tax returns would reveal that which is not ordinary or confirm that nothing untoward was done. But instead of addressing the point of the tradition of releasing tax returns, Lord argues that the release may provide ammunition for his opponents so why release them? Precisely to learn whether the returns do indicate that which is not ordinary.

Critics of Trump Two-Two ask why he cannot release the letter from Internal Revenue requesting an audit of certain years? Why can’t Trump Two-two release his returns before 2007 that are not being audited. Those questions are never answered. Instead, all we hear is deflection based on the use of logically fallacious argumentation.

Bill Schabas’ Resignation

Bill Schabas’ Resignation

by

Howard Adelman

The rest of the documentation of Boko Haram’s atrocities in Nigeria will have to wait. William Schabas resigned three days ago as chair of the UN Inquiry Committee into the actions of both Israel and Hamas in Operation Protective Edge that took place in 2014. I have been mentally pre-occupied with the issue ever since, even though I was determined to complete this mini-series of blogs on Boko Haram in Nigeria. Why the urgency?

There is none. I will complete the Boko Haram documentation. An analysis of America’s involvement in Libya and the quadrangle of Jerusalem, Tehran, Buenos Aires and Washington have been waiting in line. But the line suddenly became longer. Further, in resigning, Schabas and the UN inquiry jumped to the front of the queue. Objectively, I could have waited. The investigative portion of the committee’s work had just been completed. It was beginning its writing phase. The report is due for completion next month. Nothing hangs on a quick write-up. Why now?

The reasons are internal, not external. Bill Schabas is a friend. I have been very critical of his appointment and his acceptance of that appointment. I am pleased he resigned and told him so. I know of his anti-Israel bias which I documented in an earlier blog (https://howardadelman.com/2014/08/12/bill-schabas/ ‎). I have been convinced that the bias could not help being infused in the report. It was not a simple bias. After all, in the past he has called for Netanyahu’s indictment as a war criminal and compared President Bashir actions in Darfur to those of Shimon Peres in dealing with the Palestinians. He disagreed that his past statements and positions should make him ineligible to take the position or that they would impair his impartiality. I could not disagree more. Now, I will never know whether I am correct. But that is not the reason for my current obsession with his resignation. I am simply puzzled by the timing, why Bill seems so easily to have fallen off the wall like Humpty Dumpty and the implications for the commission’s report.

I wrote Bill to ask if he wanted to share with me any information or elaborate further on why he resigned. He wrote back and said that he chose not to. So this blog is based on information accessible to everyone.

Before I analyze Bill’s resignation this week, let me summarize what I wrote in my previous blog after Ambassador Baudelaire Ndong Ella of Gabon, on behalf of the UN Human Rights Council (UNHRC), on 11 August 2014 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.”

First, I was critical of the terms of reference of the commission which included East Jerusalem and the West Bank as well as Gaza, defined Gaza as an occupied territory, insisted the commission investigation begin on 13 June 2014 when Operation Protective Shield was launched and not when Hamas started raining rockets down on Israel, specifically excluded mentioning Hamas actions as part of the explicit terms of reference. The commission was 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.”

Bill Schabas, I explained, accepted his appointment in spite of the self-evident bias of the UNHRC because Bill himself was biased as was a fellow panelist, 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 had spoken at an anti-racism rally on 14 May 2009 and declared that, “racism is rooted in slavery and colonialism, including settler colonialism.” Israel’s occupation of Palestine continues a tradition of settler colonialism and racism, he insisted.

Israel refused to cooperate with the commission because of the partiality of Doudou Diene and Bill Schabas. I have had one impassioned argument in the past with Bill over a colleague, Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, who accepted a position on the Goldstone Commission, more formally, the United Nations Fact Finding Mission on the Gaza Conflict, even though, just prior to her appointment, she had written and pronounced judgment on Israel as criminal, the very same actions she was now asked to consider impartially as a member of an international inquiry. I argued that Christine should have recused herself and, if she did not, Richard Goldstone should have submitted his resignation. I argued, as did many others, that the reasons the commission was set up, the formulation of its mandate, the individuals appointed to it, the timeline boundaries, as well as many other factors indicated a strong perception of bias. The perception of bias was there for all to see when Richard Goldstone withdrew his own support, after the report was issued, from the claim that Israel intentionally targeted civilians (1 April 2011), but the three other members strongly criticized their own colleague, Richard Goldstone, for his retraction.

Bill insisted his colleagues were capable of acting as impartial judges in spite of their very strong assertions of guilt prior to their appointment. When he was appointed chair of the latest inquiry into Gaza, he repeatedly insisted he was capable of the same impartiality and lack of bias in spite of his previous strong written and oral condemnations of Israeli actions. He strongly defended to me and others his right to assume the position and insisted that he would ensure that the committee of inquiry proceeded in an impartial manner. At the same time, Bill has previously argued that impartiality is a misleading and even destructive criterion in drawing up commissions of inquiry or tribunals or selecting their agendas. For Bill, all international law is inherently political. Hence, in spite of his repeated pronouncements many times on Israel’s international criminality, he saw no need to recuse himself because “he is a scholar with integrity.”

Bill has in the past not only called for both Netanyahu and Peres to be prosecuted for crimes against humanity as I indicated above, but has also defended the Durban conference on racism. He has been accused of characterizing President Mahmoud Ahmadinejad of Iran as only a “provocative politician,” and paying no attention to his role as a persecutor of Baha’is and his being a notorious anti-Semite. These charges, which I myself previously repeated, are incorrect. Bill did serve as one of six commissioners on the Iran Tribunal Truth Commission from 18-22 June 2012. (http://www.irantribunal.com/index.php/en/sessions/truth-commission/306-findings-truth-commission) That commission reported on the heinous abuses in the arrests, brutal tortures and mass executions carried out by the regime between 1981 and 1988 and the impact of these brutalities on the families of the victims and the survivors of the torture and imprisonment.  The Truth Commission concluded:

“These violations of human rights were devised, instigated and executed (or caused to be executed) by a single central authority and as such the Islamic Republic of Iran is the only authority responsible for these acts.”

Bill has not been an apologist for Ahmadinejad but, in his most recent trip to Iran, accompanied Sandra Schulberg, producer of Nuremberg, Its Lesson for Today screening of the film for young Iranians. In the lion’s den, he spoke about the horrors of the Holocaust and the importance of the values of the Nuremberg trial in combating historic anti-Semitism. Though Bill is unquestionably very critical of Israel, he is neither an apologist nor one who even ignores anti-Semites.

That said, I have three major questions, at this specific point in time, why did Israel choose to present the United Nations Human Rights Commission with the key evidence that led to Bill’s resignation? Second, why was it sufficient to force Bill Schabas’ resignation? Third, what is the significance of the resignation since Bill insists that the report will not be affected by his resignation, and will be published as expected at the beginning of next month. Foreign Minister Lieberman of Israel agreed. For Lieberman contended that Bill’s resignation is not expected to change the contents of the report, but nevertheless celebrated Bill’s resignation as “a diplomatic achievement for Israel and the activities of its foreign ministry.”

Let me begin with what I find most puzzling – Israel’s decision to present evidence to a United Nations Human Rights Council with which it is not cooperating and which is purportedly not expected to change the content of the report. So why now? Why not wait until the report is issued and use the information collected to undermine the report when it is issued? Why choose this time if Israel’s actions are not expected to undermine the results? And why celebrate the resignation as a diplomatic victory? What was the evidence Israel presented three days ago to the UNHRC that set in motion Bill’s sudden resignation?

Israel had lodged a complaint before the UNHRC accusing Bill of “clear and documented bias against Israel,” specifically citing a “contractual relationship with the Palestinian side” prior to becoming head of the commission. Israel put before the UNHRC evidence that Bill had received $1,300 for a legal opinion he wrote for the Palestine Liberation Organization in 2012, an action which Bill acknowledged in the press conference at his resignation, but insisted that the opinion he wrote was of a “technical legal nature” drawn from scholarly work he had published and that he had not been hired or paid as an advocate on behalf of the PLO. It was no different than advice he had given to many other governments and organizations. Further, he insisted such advice constituted only “a tiny part” of what he called “his body of academic work.” In his letter of resignation, he admitted that he had written,

“a legal opinion for the ‘Negotiations Affairs Department/Palestinian Negotiations Support Project’ of the Palestine Liberation Organisation. The legal opinion was to consider the consequences of a UN General Assembly resolution upgrading Palestine’s status to that of a non-member state on the declaration that was lodged by Palestine with the International Criminal Court in January 2009. It also addressed whether accession should include acceptance of the amendments to the Statute adopted at Kampala and how the territorial jurisdiction of the Court might be applied. These are matters on which, as one of the academic specialists on the subject of the Rome Statute, I have frequently expressed myself in lectures and in publications. A 7-page opinion was provided on 28 October 2012 and I received remuneration of $1,300, as previously agreed. I have done no other consultation and provided no other opinions for the State of Palestine, the Palestinian Liberation Organisation or any other related body.”

So why did he accept the commission and why did he charge $1,300 if the advice was freely available by reading Bill’s writings? Why had Bill not disclosed this possible conflict of interest earlier to the UNHRC? Bill explained that he had not been asked to detail his consultancy work when he was appointed (curious indeed!), that, his views on the Israeli-Palestinian conflict had been well known and that he had pledged to serve “with independence and impartiality.” As he continued,

The complaint about my brief consultancy, as I understand it, is not about the content, which is of a technical legal nature, but the implication that in some way I am henceforth beholden to the Palestine Liberation Organisation. Perhaps there is also the suggestion that I might tailor my opinions in one direction in order to generate more such consulting for remuneration. If I were indeed motivated by financial gain, it would be hard to explain why I would have accepted the position as Chair of the Commission of Inquiry, to which I have gladly devoted several months of work and for which there is no remuneration whatsoever.

But in the complaint registered, there is no suggestion that he has been motivated by financial gain or that rendering the opinion would influence his future judgments about Gaza and Israel’s role. That is a red herring. This issue is one of an apparent conflict of interest. And that is quite separate from his past partial opinions on Israel and the question of whether he could be impartial in his current role. For impartiality is an ethical issue. An alleged conflict of interest is a legal issue. In law, accepting such a fee, on the surface, should disqualify one from accepting a role as a judge. And one cannot offer the excuse that the fee was for an opinion to the PLO, not Hamas, for the mandate of the commission included investigating Israel’s actions in both East Jerusalem and the West Bank.

“A conflict of interest occurs where a personal interest is sufficiently connected with public or professional duties that it results in a reasonable apprehension that the personal interest may influence the exercise of professional or public responsibilities.” It is not just, though it can be, an issue of benefitting financially. A conflict of interest arises if a person in a position of judgment about one entity (Israel) has worked on behalf of another entity (the PLO) which has adverse interests to that of Israel. Further, the rules of law demand vigilance with respect to possible conflicts of interest.

Note first that a conflict of interest is not the same as partiality. A person charged with the responsibility of making a judgment may, by his prior behaviour, actions and writing, have demonstrated pre-judgments which could affect his or her opinion, but total impartiality is not part of a job description. The absence of a conflict of interest is. An individual is normally disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. Not that it would, but that it might. The appearance of a conflict is sufficient for disqualification.

But was this a case of a conflict of interest? For Bill was not advocating on behalf of the PLO nor representing the PLO. He was serving as a technical expert on the law. But is this nevertheless not a procedural violation? Administrative law differentiates between legal work as an advocate or authorized representative and legal work as a technical specialist and consultant. Bill did not intervene in the ICC on behalf of the PLO. In Bill’s letter he is clearly suggesting that in law that he was not in a conflict of interest. I think he may be correct. So why did Israel use this material, and use it at this time, to undermine his role? Why did he resign? And what are the implications?

Aside from the issue of how Israel obtained such information, did Israel proffering this information expect and anticipate that it would lead to Bill’s resignation? I believe it was a tipping point. But Bill is both stubborn and arrogant and believes he has the divine capacity to bracket and rise above his past and render totally impartial judgments. I am not the only one critical of his belief. Persons of much more eminence than I have told Bill the same thing. Aryeh Neier, founding director of Human Rights Watch, former head of the ACLU, President Emeritus of George Soros’ Open Society Foundation, and a lecturer with Bill Schabas at the Paris School of International Affairs, concurs. So does Joseph Weiler, President of the European University Institute in Florence and Editor-in-Chief of the European Journal of International Law.

This issue is a tipping point, not because it provides a definitive legal case against him, but because in the current situation at the stage at which the commission is at, the process of dealing with the legal charge is so disruptive that the very legal process of adjudicating the issue would be an enormous distraction from the commission’s work. The information has set in process an unstoppable force which the ethical demands of impartiality had not. The information has resulted in a new and irreversible development which would make it impossible for Bill to continue no matter what the opinion might be of the legal department of the UN. The information was rovided by Israel on Friday in the full knowledge that it would serve to either tip the balance to force a resignation or, at the very least, undermine his moral authority as chair

Israel wanted Bill out now and believed it now had the case that would drive him out, and, as a fallback position, would undermine the work of the commission even further. Tomorrow I will deal with why Israel chose this time to push Bill over the cliff and why Bill agreed to jump rather than be pushed. I will also deal with the implications of his downfall on the contents of the report and its likely reception.

Tomorrow: Was He Pushed or Did He Jump? Why?