William Schabas: Was He Pushed or Did He Jump?

William Schabas: Was He Pushed or Did He Jump?

by

Howard Adelman

On Tuesday, Prime Minister Benjamin Netanyahu called for scrapping the U.N. commission looking into Israeli actions last summer in Gaza since the Geneva-based U.N. Human Rights Council is an “anti-Israeli body” that had a proven track record of doing nothing about true human rights violations around the world. So why submit evidence to undermine the Chair of an inquiry into the last Gaza War at this time? And why submit it to the UNHRC and not just to the media?

In answer to the latter question, Israel lends some legitimacy to the UNHRC in submitting its information to it. At the same time, Israel wins brownie points with the UNHRC by giving the UNHRC 2-3 days advantage before the issue and the new evidence became public. Further, Israel recognizes that it cannot stop the inquiry. Israel will criticize the results, but this initiative gives the appearance of being less subversive of the proceedings of the UNHRC. No matter what the report says, because of the extreme bias of its sponsors and the absence of Israeli cooperation, any inquiry is bound to be seriously compromised. But, in the end, Israel would prefer a report that was less rather than more unfavourable. For the report becomes a reference point over time and not Israel’s denunciations. Since the report is at the writing and not the investigative stage, Israel would prefer a report less anti-Israel than one written by Bill which Israeli professionals saw as the most likely result.

I believe the key reason is to be found in the announcement of Rolando Gómez, a spokesman for the U.N. Human Rights Council, that accompanied the information on Bill Schabas’ resignation that current commission member Mary McGowan Davis would replace Schabas as chair and not Doudou Diène who, with his post-colonialist mindset and conviction that Israel is a late colonial outpost of the West, would be even more anti-Israel than Schabas. Davis was a third late appointment announced on 25 August, whereas William Schabas and Doudou Diène’s appointments were announced two weeks earlier on 11 August. This was a result of the farcical announcement by the UNHRC that Amal Alamuddin, a British-Lebanese lawyer and George Clooney’s then fiancée and now wife, was the third appointee. Amal Alamuddin issued a press release the next day insisting that she had never agreed to sit on the inquiry. The head of UNHRC, Navi Pillay, was left with mud all over her face.

Davis is a former prosecutor from New York, has been a New York Supreme Court judge (1986-1998) and has served the UN in a number of legal capacities – working to strengthen the public defender’s office in Afghanistan in 2004 and 2005 to mentor and to hone the analytical and trial advocacy skills of Afghan lawyers representing detainees in the local prisons. In the International Criminal Tribunal for Rwanda, she served as a consultant and offered trial advocacy training programs for prosecutors there. Her CV also lists her as doing work in Cambodia and Sierra Leone, but I do not know what she did on the crimes against humanities, human rights abuses and the war crimes investigations there. One of her very interesting observations is that, “courts that operate beneath the radar screen like this one in Kamituga (in the Democratic Republic of the Congo) are of equal or, perhaps, greater value” than the formal court system.

Her experience, however, culminated in her own post-Goldstone investigation of whether Israel had conducted satisfactory investigations of all charges of war crimes and crimes against humanity in the previous Gaza War. She had strenuously insisted that her inquiry had not been influenced by the Goldstone Report and was entirely independent. “Our work was completely separate from his work.” Her strenuous and adamant insistence on separating her report from that of the Goldstone Inquiry was the first initial promising sign that it might be fair.

McGowan Davis and Swedish Judge Lennart Aspergren (who served on the International Criminal Tribunal for Rwanda) also submitted their report to the United Nations Human Rights Council, but insisted that it was vastly different from the Goldstone effort. Even though they did hold hearings with victims of Israeli and Palestinian violence, their report was not intended and did not investigate Israeli military action in Gaza. Their mandate was to investigate and evaluate the respective Israeli and Palestinian investigations of claims of human rights abuses. The report began by praising the Turkel Commission inquiry into abuses in the May 2010 flotilla raid and the outstanding quality of that report which proved that Israel was capable of great impartiality and zealotry, even probing high-level decision making.

However, the inquiries into the conduct of the IDF in Operation Cast Lead did not match that standard. Of 400 investigations of claims of operational misconduct, few led to disciplinary action. Of 14 investigations into human rights violations, only two led to criminal charges. Further, right up until the publication of their report, Israel had not probed executive decisions related to Operation Cast Lead. Davis and Aspergen also criticized Israel for tardiness and lack of transparency. The report made no recommendations on reference to the International Criminal Court, but the UNHRC used the report to refer Israeli action in Operation Cast lead to the ICC.

Given the possible explanation that Israel wanted to see McGowan Davis replace him as chair, why did Bill resign, not only as chair but as a commissioner, for he then will have no input into the writing of the report? The following different reasons have been proffered for the resignation:

  1. The Protection Rationale

1.      Bill’s work in defence of human rights made him a huge target for malicious attacks, and this was but part of those attacks.

2.      “The situation in the committee became unbearable and I did not want the personal attacks of Netanyahu and Lieberman to detract from the truth, which will give justice to the victims.”

3.      “I resigned so that the personal attacks from Netanyahu and Lieberman do not affect the report itself”

4.      Schabas resigned so that the personal attacks by Netanyahu and Lieberman do not affect how the Report is received.

B.     The Impact on the Process and Work of the Inquiry

1.      The Israeli filing of the information led to the Human Rights Council’s executive on Monday seeking legal advice about his position from U.N. headquarters. In making this reference, customary practice requires stepping aside until the legal opinion is received.

2.      “I believe that it is difficult for the work to continue while a procedure is underway to consider whether the chair of the commission should be removed.”

  1. The claims from Israel that he was not objective led to the development of an investigation by the UNHRC, and this investigation led to his resignation.
  2. The resignation was the result of “the huge pressure Israel and the Zionist lobby put on the committee and its chairman” according to Hamas spokesman, Fawzi Barhoum; Palestinian official Hanan Ashrawi decried the Israeli efforts as “typical Israeli tactics” in which, “They try to intimidate, they try to slander, they try to discredit, they make it extremely difficult for anybody to take any position that would hold Israel accountable or investigating Israeli violations or Israeli war crimes.” Barhoum added that the Israeli pressure “is meant for impunity and killing the truth.”

Bill viewed his resignation as necessary to protect human rights, ensure justice for the victims (of Israel), protect the report and protect how the report is received. But it is difficult to see how his resignation could be helpful in any of these respects. Certainly, the resignation removes a distraction for the work of the commission, but how does it enhance human rights, victims’ justice, the report itself or its reception? Ironically, the latter two claims may have a degree of accuracy. For, I believe, in McGowan Davis’ hands, the report will both read more impartially, be more judicious and be received better even though Netanyahu and company are bound to jump on it no matter who writes the report or what it says. Thus, the report is likely to receive, relatively at least, a better reception. This may not have been Bill’s intention when offering the reasons for his resignation, but I suggest that this was both the reason for the Israeli action and the result of Bill’s resignation.

On the impact of the resignation on the process rather than substance of the inquiry, I see not one whit of truth that this was an exercise in political pressure or Israeli intimidation and such charges only discredit the people who make it. Israel not only had a right but a duty to present its evidence. Whether the evidence was sufficient to establish a conflict of interest is another thing. The resignation had nothing to do with charges that Bill would not be objective since that charge had been made repeatedly since his appointment both by friends and enemies of Bill’s. This item in that context seemed totally trivial, except that the issue was not about impartiality but about an alleged conflict of interest. Would the investigation of the legal office have intruded on the commission’s work? Only to the extent that Schabas would be expected, in these circumstances, to temporarily step aside. In that case, he could not influence the writing of the report in any case unless the UN lawyers responded quickly and exonerated Bill, but that is not their custom. So Bill was likely dead in the water anyway.

But his resignation comes at great cost to himself and at some cost to the credibility of the report. For Bill has not had his day “in court” as it were to prove he was not in a conflict of interest, hence leaving a bloody spot that, however much he will hereafter cry, “Out, out damn spot,” will colour his future career. But in the past, he has suffered far worse. And the resignation, except in so far as it improves the perception of impartiality of the report, is bound also to stain how it is received. An independent investigator to assess quickly whether Bill was in a conflict of interest would have better served Bill as well as protected the report in a better fashion.

However, that would entail a risk for the independent counsel might have concluded that Bill was indeed in a conflict of interest and that would have burdened the report with a much larger stain. So given what has happened since, given that Bill was between a rock and a hard place so that whatever choice he made, the outcome was not good, I believe he chose the less risky one precisely for the reasons he said, even if those reasons are unlikely to offer the protection he would like. But the succession might to some degree.

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?