The UNHRC Report on the 2014 Gaza War

Part II: The Commissioners

by

Howard Adelman

In my last blog, I wrote, “Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome.” In that blog I also indicated that the intellectual frame of any commission set up by the UNHRC, quite aside from whether it followed standards of objectivity and impartiality, would be one which endorsed the universal sovereignty of human rights over all other international norms. That this frame would govern the examination of the conduct of the belligerents in the 2014 Gaza War. However, the degree of impartiality and objectivity of the commissioners themselves will certainly be important.

My friend Bill Schabas has been the first one named to head the commission. The fact that he had already pronounced himself on finding Israel guilty of war crimes and crimes against humanity, and had insisted that his dream would have been to see Prime Minister Netanyahu in the dock before the International Criminal Court, did not seem to deter the UNHRC from making the appointment or Bill from accepting it. I personally wrote Bill and then spoke to him to ask him to recuse himself. I was far from the only one. There were a plethora of human rights experts worldwide that gave the same advice. These included Aryeh Neier, founding director of Human Rights Watch and another friend of Bill’s (Bill and Aryeh both lecture at the Paris School of International Affairs), Mordechai Kremnitzer who works with the Israeli human rights organization, B’Tselem, and Joseph Weiler, President of the European University Institute in Florence, who holds the European Union Jean Monnet Chair at New York University School of Law and is Editor-in-Chief of the European Journal of International Law. There were many others.

The appointment seemed to indicate an even worse outcome than the Goldstone Report. Bill insisted that he could maintain his objectivity in spite of his previous pronouncements, and that added to my concern rather than alleviating it. However, when it was revealed that Bill had accepted a small consultancy retainer with the PLO in 2012 to offer a legal opinion, that did him in. He was forced to resign, but only after he had run the inquiry for over six months.

A fellow commissioner, an American jurist, took over. Mary McGowan Davis became chair. Davis had been a member of the 2010 Committee of Independent Experts that was in charge of reviewing whether and how Israel (and the Palestinians) had behaved in response to the Goldstone recommendations. Israel was required to investigate about 400 suspected incidents of breaches of humanitarian law. In the conclusions of her inquiry, Davis criticized Israel for not opening investigations into those who designed, planned, ordered and oversaw Operation Cast Lead as called for by the Goldstone Report. She criticized Hamas for not investigating the launching of mortars and rockets into Israel. She criticized Israel again for taking too long in conducting its investigations while acknowledging the enormous scale and challenge to Israel to completing its work. She did commend Israel for the resources and the effort devoted to the task. The results of her committee’s work evidently were a key factor that influenced Richard Goldstone to withdraw his claim that Israel deliberately targeted civilians, though that only meant he was now anathema to both Israel and the supporters of the UNHRC which allowed the report to stand.

Davis’ modestly claimed that her responsibilities as chair of the post-Goldstone commission work were simply to implement the mandate of the Committee to “monitor and assess the investigations by both sides and to report back to the Human Rights Council.” It was not to make recommendations about what should be done with the findings. However, she did express the belief that if her committee embraced the principles of an impartial and fair investigation, that in itself would push forward the notion of a peace agreement based on transparency, accountability and justice. To that end, she insisted, the committee had to be seen to be delivering justice, especially by the victims on both sides. This perspective in itself was a considerable contrast to the evident partiality of Bill Schabas on the substantive issues of the conflict.  On the other hand, if she had already accepted to serve beside Bill on the Commission of Inquiry and had not insisted that Bill recuse himself as a condition for her taking up her post, one is forced to question how strongly she upholds the principle that justice must not only be done but must be seen to be done.

Davis honed her legal skills in a tough jurisdiction as a former Assistant U.S. Attorney for the Eastern District of New York. She had risen to become an Acting New York Supreme Court Justice. If I were even a half-decent journalist and not an ersatz one, I would have been able to find out why she had not been made a full member of the New York Supreme Court, why she retired from that position when she was clearly relatively young and full of energy. I would at lease have been able to analyze her judgements or her earlier role as a federal prosecutor. But I am not a journalist, let alone a good one, so I have no new information even on her beginnings as a defender of human rights. Because of my own previous work, I did know that she had been a consultant to the International Criminal tribunal in Rwanda, but I have no clue on how she performed except that she had also served to mentor criminal defense lawyers appearing before that court. That in itself is some measure of respect for her impartiality and her commitment to due process. Nevertheless, I was still bothered by her willingness to sit on a commission subordinate to Bill who should have unequivocally recused himself long before the issue of his consultancy emerged, especially important because Bill ran the inquiry for so many months before he resigned and Davis took over for the final almost 5 months.

I was wary on other grounds. After all, Davis had agreed previously and again this time to work under UNHRC auspices in spite of its record of a totally deformed focus on Israel in disregard of any reasonable standard of impartiality. She had said nothing about why the UNHRC had failed to launch an investigation into Hamas for reigning missiles and rockets against civilian targets in Israel and only launched an investigation once Israel once again invaded Gaza. Further, she had been congratulatory to the Palestinian Authority for cooperating with her 2010 investigation. This stood in contrast to Israel’s non-cooperation. Israel had only just initiated its self-examination. She ignored the views of Melanie Khanna, who served under Hilary Clinton, and who presented the American view that the UNHRC had an overwhelming record of a disproportionate focus on Israel and that Israel had at least demonstrated an ability to engage in self-scrutiny. Contrast this to the PA, which, while it offered full cooperation with Davis’ previous investigation, had shown no record of promptness or ability at critical self-scrutiny. Contrast this with Hamas, which also did not cooperate with Davis’ investigations and certainly never publicly investigated its own conduct.

Beyond these obvious considerations, there is the dilemma of the role of such reports, even as that of the Davis investigation into compliance. This certainly was true even with the Goldstone recommendations. After all, reports are useful tools of propaganda by all those states, ostensibly in favour of transparent impartial justice but, oblivious to those standards in the behaviour of their own states. Further, these Arab and Muslim countries   were exclusively interested only in those aspects of her investigation that focused on Israel as the culpable party. Even Amnesty International seemed to see its task as demonstrating impartiality, not by carefully weighing the faults and shortcomings of the respective parties, but ensuring that AI condemned Hamas and Israel equally. How does one operate within such a partial context of both the international community and the UNHRC more specifically? Davis has chosen to try to advance the cause of impartiality from within the auspices of the UNHRC while Israel is committed to non-cooperation with a body that has an almost perfect track record of bias.

All of this is beside the much deeper bias of the intellectual framework of the imperial sovereignty of human rights in contrast with the view of overlapping as well as competing international norms of human rights versus humanitarian law. Is Israel better off boycotting the whole proceedings or should Israel have chosen to cooperate with the investigation in spite of the record of biases of the organization under which it was operating? Did the second (originally third) commissioner tilt the balance towards greater impartiality or towards reinforcing the inherited biases of the UNHRC?

Doudou Diène (Senegal) earned his first degree in philosophy from Senegal’s Concours Général from which he graduated with the top prize. (As a philosopher, I am already predisposed, at least initially, to a favourable attitude towards him.) Diène holds a law degree from the University of Caen (France), a doctorate in public law from the University of Paris, and a diploma in political science from the Institut d’Études Politiques in Paris. After a long career at UNESCO, including two years as UNESCO’s Deputy Assistant Director-General for External Relations and subsequently as Acting Director of the Bureau of Public Information, he served as the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance for six years from 2002 to 2008. From 2011 to 2014, he served as the Independent Expert on the situation of human rights in Côte d’Ivoire. The fact that he worked for 6 years for the discredited UN Commission on Human Rights, the predecessor to the UNHRC, does not work in his favour. Further, there is no evidence from his background that he had any expertise in international humanitarian law however much an expert he was on intercultural and interreligious cultural dialogue. One might expect him to be fair-minded and impartial, while not expecting him to think outside the imperial role of human rights.

The report itself should prove to be very interesting reading.