A Performance Critique of BDS – Part II

A Performance Critique of BDS – Part II

by

Howard Adelman

                                                                                                           

 “More than any other tactic of the Palestinian liberation movement, the BDS campaign has succeeded in creating a global outpouring of support for Palestinian rights and placed Israel’s violations of them under international scrutiny like never before.” This is the boast that appears on the BDS website in an essay written by Sherry Wolf entitled, “What’s behind the rise of BDS?” The answer presumably is a record of success. How is success measured? By the following:

  • moving the issue of Palestinian rights from the margins into mainstream discourse
  • instead of a discussion of obscure territorial border issues and competing narratives, debate has now opened up in the media, in corporate board rooms and in academia

For the moment, let’s presume the truth of both claims. How then do such “successes” relate to the goal of ending the occupation and colonizing of all Arab lands? Wolf makes no effort to draw any connection. Like magic, a campaign for the rights of Palestinians will lead inevitably to the roll back of the armies of the colonizers and the surrender of all land seized back to the Palestinians. One need only utter the connection to recognize how absurd and preposterous any claim for such a connection using the means that BDS employs. Instead of an argument and evidence, we get repetition upon repetition of the three aims of the BDS movement as if they were a mantra rather than realizable political objectives.

The anti apartheid movement against South Africa is usually offered as the forerunner of the BDS campaign. But everyone knows the context, the histories and the global situation were radically different. The Boers, for example, had lived in South Africa for centuries unlike the Zionists who had really been in Palestine for less than half a century before they gained control initially of just over half the land and then in the 1948 war increased that to over 70%. The Zionists became, through the forced exodus of hundreds of thousands of Palestinians, the majority in their own state. In contrast, the Boers never achieved majority status in their areas of occupation, even if the English white population was added to their own numbers. In ethnic, religious and racial conflicts, minorities have a choice – rule over the rest or be ruled, but do not pretend that, as a minority, you can rule as a minority for very long without external support and/or internal ruthlessness.

Further, the Jewish Zionists were much cleverer than the advocates of apartheid. Apartheid was not practiced in Israel primarily through the rule of law and the denial of the right to vote as it was in South Africa and in the Southern United States. The exclusively Jewish Israeli government let Palestinians in Israel become full citizens and cast ballots and practiced any apartheid through informal rather than legally coercive measures. The BDS charges the Zionists with racism and preaching racial superiority with no evidence to support such a claim. The Zionists are much cleverer than that. They practice the superiority of their power, not the superiority of their blood. The latter offends the world as it did for the advocates of apartheid in South Africa, Alabama and most of the Deep South in the USA. The superiority of power, in contrast, is often widely admired even when the group controlling and wielding the power is repulsive. More importantly, the only real way to challenge power is with countervailing forces that are stronger, more committed and have the vision of the long run rather than pandering to liberal doctrines of rights to get mushy liberals on one’s side.

In putting forth this liberal non-violent mode of fighting what is really a hundred years war, the BDS movement distorts and deforms Palestinian history. The militant Palestinian movement never envisioned winning its battle against the hostile forces arraigned against it “through the mobilization of Palestinians alone.” Quite the contrary. Initially, the Palestinian leadership placed too much reliance on the efforts of others. And then when it took its destiny into its own hands, instead of raising the morale of its partners so they could enter the fray with enthusiasm and an all-out effort, the PLO ended up getting into one conflict after another with them even as the PLO agreed to non-interference in those Arab states in return for financial support, something which BDS acknowledges. Instead of mobilizing other Arabs and Muslims to fight on their side, the Palestinian leadership counted on governments that were already insecure in their own power without taking on Israel and its Western backers. The Palestinian leadership, indeed, did not work alone, but got in bed like prostitutes with regimes without deep roots in the will of the people and without any stamina for a long and necessarily sacrificial struggle.

The problem was not that the militants went their own way, but that they went the wrong way, pussyfooting around the central issues rather than directly confronting them and rallying the resources and the will to accomplish the real goals. The BDS movement opts for non-violence in its actions, but violence in its goals and aspirations. The position is inherently contradictory and doomed to be an even greater failure than the weak militancy of the PLO leadership even as BDS celebrates its rare pyrrhic victories.

Look at the contrast between reality and the following BDS claims:

  1. Success as evidenced by the admission of Israeli and Zionist leaders that BDS is “delegitimizing” Israel and threatens Israel’s authority and prestige;
  2. The shift in American public opinion so that a majority now view Israel unfavourably;
  3. Success because of Israel’s own brutal actions in activities such as Operation Cast Lead (2008-2009) and in Operation Protective Edge (2014) in Gaza, activities which BDS puts on display and amplifies.

In other words, BDS admits that its successes have largely depended on Israel and Zionists shooting themselves in the foot rather than any role BDS plays except magnifying and publicizing Israel’s self-inflicted wounds.

But what is the reality? For purposes of space, I will concentrate only on the claimed successes with respect to U.S. attitudes and support and set aside both an examination of successes outside America and whether BDS has taken sufficient advantage of Israel shooting itself in the foot.

I begin with the first claim, that Israeli and Zionist leaders have recognized BDS as a central threat. Wolf wrote, “At the 2014 conference of the American Israel Political Action Committee (AIPAC), unquestionably the most influential pro-Israel group in the United States, speakers from Secretary of State John Kerry to Netanyahu felt the urgency to deride BDS. In his keynote address to AIPAC, Netanyahu mentioned BDS no fewer than eighteen times. To rousing cheers, Netanyahu called on Zionists to ‘fight back’ against boycott advocates, ‘to delegitimize the delegitimizers.’ [16] Many BDS activists rightly took this to be a form of distorted respect from an enemy that previously ignored the movement’s existence.”

How revealing! Success is marked by recognition of one’s existence, not by the degree to which specific goals have been achieved within an overall larger strategy. It is as if the black flies of northern Ontario announced that they were winning the war against human encroachment on nature in general and their habitat in particular because they are such an irritant to the increasing number of humans invading their territory. The BDS movement has shown it can be a bothersome irritant. The BDS has shown that it can become a focus of attention by the current Zionist leadership that continues to repeatedly shoot itself in the foot. Swatting the back of its neck may be perceived as a form of shooting oneself in the foot, but it can also be recognized as a minor distraction, not only for the Zionists but for the goals of those who really see Zionism as the imperialist colonizer. The real question is whether serving as a gnat will stop the continuing invasion. Claiming that Israel has become a global pariah does not make it so.

Let us look hard at claims of enhanced support for the Palestinians and the branding of Israel as a pariah. I neither have the space nor time to undertake a world survey, but an examination of shifting attitudes in the key battleground for the BDS movement, the United States, offers very little encouragement and belies the BDS claim that Israel has become a pariah. A swarm of mosquitoes or an attack of black flies are certainly bothersome, but they cause little change in the actual forward march of the colonizer and occupier.

Note the following:

  1. U.S. military aid to Israel has not decreased but has steadily increased beginning with the establishment of the PLO until it more or less flat-lined and achieved a plateau over the last thirty years:
  2. The U.S. Congress, including Democrats and Republicans, remain unwavering in support for Israel even when the Prime Minister of Israel challenges the President of the U.S. not simply on U.S. soil, but in the U.S. Congress.[1]
  3. There was absolutely NO significant media coverage that Congress continued to vote support for shipping sophisticated weaponry to Israel, even if some held their noses at the extent of the destruction in Gaza.
  4. In various surveys, although there is a vocal and significant minority opposed to such military aid, there is a clear majority in America who support supplying Israel with the same level of weaponry into the future; that support has not declined because of Israel’s actions in Gaza; further, in spite of the revelations of Edward Snowden, the Obama administration has supplied Israel with covert support by sharing intelligence, and there is little sign of any significant objection.
  5. Almost 40% of Americans continue to support a two state solution, a number unchanged in spite of the Gaza wars between 2008 and 2014.
  6. Also unchanged is the number – estimated at 18% – who support a one state solution with the Zionists in control.
  7. What has changed as the prospect of a two state solutions recedes is the number supporting Israel evolving into a bi-national state with Arabs having equal citizenship if, and for many who take this position, only if the two state solution really is dead.
  8. Since the PLO has shifted tactics and set aside the bilateral pursuit of peace with the U.S. as a mediator, at least while Netanyahu and his ilk hold power, and has shifted to the international diplomatic route more in line with the BDS approach, only 25% of Americans want the U.S. to support such an effort.
  9. On sanctions, in spite of a majority of Americans opposing expansion of Israeli settlements, most oppose imposing sanctions; BDS efforts have not seemed to have been proven effective in getting support for sanctions aligned with opposition to settlements.
  10. More telling than any of the above polls perhaps is the fact that only 14% of Americans want the U.S. to be more supportive of Palestine while 55%, in spite of opposition to settlements, want the U.S. to lean towards the Israeli side.

None of this data supports the self-advertisement that BDS has had a significant effect on American attitudes let alone policy with respect to the Israeli-Palestinian conflict. Quite the reverse. Given the ambiguous and equivocal position of BDS on whether BDS favours a one state or a two-state solution, and certainly around the issue of whether Palestinians should have the defining power in such a state, BDS can be accused of retarding rather than enhancing this development in consciousness.

However there is one cogent argument in support of BDS in spite of any significant lack of progress to date. 31% of Americans rank human rights concerns as their highest priority compared to real politic and the defence of American interests (24%) or 14% because of Israeli interests. However, of those 31%, a majority believe that Israel is a stronger defender of human rights than the Palestinians. This indicates that making an appeal on the basis of human rights might seem the most efficacious route to some success since rights are so central to many Americans’ concerns, but in doing so, perhaps the spotlight reveals more about the Palestinians than the Zionists. On the other hand, rallying around the theme of human rights does allow those most sympathetic to the Palestinian cause, and those most supportive of international action to recognize a Palestinian state, to coalesce. But is that success consequential, or does it merely make Palestinians feel good without any accomplishments on the ground?

This is the telling poll about attitudes. The most recent Pew poll continued to show that Americans, in spite of Israeli ruthless behaviour, continue to support Israel over Palestinians by a wide margin. BDS has not had any significant effect on this even when the poll was conducted immediately after the last cessation of fighting in Gaza in 2014. Even after the havoc Israel inflicted on Gaza, 34% of Americans strongly sympathize and 32% somewhat sympathize with Israel, while the equivalent figures for the Palestinian cause is 11% and 35%. More telling, the sympathy for the Palestinians is not with their cause but their condition as victims, while the sympathy for Israel is for their cause. Pursuing BDS goals is a self-defeating exercise because, in order to earn more sympathy for the Palestinians, they have to continue to be victims, not victors. Further, in spite of all their suffering, almost half of Americans still have little or no sympathy for the Palestinians, while those with little or no sympathy for the Israelis is half that figure.

This points to the real flaw in the BDS philosophical approach and efforts. They are totally marginal in effecting change. To the extent they do succeed, they may boomerang back against the Palestinians even more. Finally, and most importantly, such efforts undermine the real struggle, the struggle between two national groups for dominance. Once that is surrendered, the Zionists are bound to win because, disastrous as it is, they have a better track record in the human rights field than the Palestinians. Further, they are bound to win because they are stronger. The only way Palestinians will win is if they understand that they must be stronger, more dedicated and more committed to winning the struggle. BDS is really a route to surrender while engaging in a rhetorical superego trip. The reality is that wars – even the wars in South Africa and the American South – were won because of who had the power, and not because of an appeal to human rights, however important human rights were as a rallying cry for the majority to overthrow the power of a minority.

What has changed? Support for a two-state solution has declined as the vision of a two states living side by side in peace has receded as a possibility. BDS supporters who deep down do not believe in victory for the Palestinian cause, but espouse a week-kneed vision of a secular society of individuals with equal rights, whether they have Jewish or non-Jewish backgrounds, a utopian dream if there ever was one, would appear to have gained ground because of this shift. The problem, however, is that the support for a Palestine dominated by the Zionists has increased even more. As the two-state solution recedes, the issue is not whether a utopian paradise of individual rights will rise out of the ashes of a doomed pursuit, but which community will dominate in the resultant power struggle. Does the BDS movement offer any indication that the Palestinians will emerge on top as they pursue everyone ostensibly living at precisely the same level of rights and benefits? Quite the opposite. Both domestically and certainly in the U.S., understanding for a hegemonic Zionist enterprise has crept to the forefront both in Israel and the U.S.

Demonizing the Zionists is totally insufficient. In fact, the greater the demonization, the more the morale of the Palestinians will suffer as their dream of recovering their lands and their historic place in the world recedes. What is required is not demonization of the Zionists but their total defeat, and the BDS platform offers no route or prospect to achieving such a goal. As the prospect of a two-state solution recedes, the benefits will not go to the mushy liberals who build a program based on human rights. They did not emerge victorious in the recent Arab spring and have failed to learn or apply any lessons to their inconsequential efforts when fighting the Zionist colonizers and occupiers. The benefit will go to the hard Israeli right who change hirsute for sheep clothing at the bat of an eye and much faster and more successfully that Jacob did in robbing Esau of his birthright.

As long as the BDS movement propagates the illusion of a so-called just outcome in which everyone can live in a polity that guarantees everyone human rights, then the Zionists cannot and will not be defeated. They will be irritated. They will scratch away at the bites of no-see-ums at their hairline. But the Zionist entity will not surrender as the minority apartheid regime in Rhodesia and South Africa and the American South were forced to do. Standing up to Israel’s human rights violations and the collaborators with the Zionist enterprise of colonization and occupation is not and can never be just a human rights struggle. It has to be a struggle for the Palestinians as Palestinians, for the Arabs as Arabs, for Muslims as Muslims, against an enemy that has to be destroyed. Otherwise, BDS is just a proponent of a long series of illusions that have led to one setback after another for the Palestinians. If the Zionists are inherently colonizers, if they are inherently occupiers, then joining forces with bleeding heart liberal Jews on a human rights platform can only be self-defeating. Viewing themselves as the civil rights movement of the twenty-first century may appease sensitivities, but will not bring victory over the Zionists any closer. Cloaking oneself in the mantle of universal rights will no more disguise and hide the real battle ground than the Zionists wearing the magician’s cloak of a two-state solution.

But the supporters of the BDS movement know this. They are not total fools. They know they lack the domestic power to bring the Zionist entity to its knees. That is why they, like the PLO, have taken the international route. In their own words, “Though BDS is a magnificent tactic for winning sympathy and drawing activists into solidarity with Palestinians, even landing financial and ideological blows against Israel, it is ultimately a struggle for reforms within capitalism—an exploitative system that is part of an imperial order.” In other words, the real ultimate goal is the defeat of capitalism of which Zionist Israel is just an early and easier target. And all of this in the face of China as a rising communist-capitalist power and the virtual decimation of the communist utopian enterprise everywhere.

What about the claims for specific accomplishments? On the sanctions front, the score is zero. Does this suggest to the BDS proponents that their utopian vision in which they hypocritically espouse Palestinian self-determination while denouncing Jewish self-determination all in the guise of the universality of human rights has little in common with the civil rights struggle in the American south or the struggle within South Africa to overthrow apartheid? And when they shift gears and insist that they are true liberals opposed to prioritizing either form of national self-determination, it is clear that they cannot make up their minds whether they are the avant-garde of socialism, of universal liberalism or of support for the Palestinians as a movement for self-determination in the face of a powerful colonizing occupier. The confusions and contradictions only muddy the waters even as they use this creative ambiguity of traditional diplomacy to gain more support.

On the divestment front, BDS calls for withdrawal of investments in stocks and bonds in corporations deemed to be complicit in support of violations of Palestinian human rights. Again, even on this inconsequential front with an effect that is barely noticeable, the reality is that the BDSers are really not aiming at victory, but consciousness raising, about using the divestment campaign to help blacken the image of Israel. My argument is simple. To the extent the BDS campaign has succeeded, the success has been infinitely miniscule. Secondly, the backlash has been far more powerful than any small benefit. Third, part of that backlash entails revealing the hypocrisy of a movement that campaigns on human rights as a universal position but singularly focuses on Israel which even its most ardent enemies have to admit is far from the most heinous criminal on this front, quite aside from the fact that in a power struggle between one group and another for supremacy, human rights, however important, become relatively a side issue. Finally, BDSers have a record of flouting victories when the actions lauded have often had little if anything to do with supporting the aims of BDS.

Take the Hampshire College issue where BDS claimed its first victory in 2009 in the soft underbelly of its campaign for divestment. BDSers claimed that, as a direct consequence of their campaign, Hampshire College regents voted to terminate investments in companies associated with Israel and the exploitation of Palestinians.  What are the facts? Hampshire College is one of the myriad of small liberal colleges that populate the American landscape with a total enrolment of only 1,400 students boasting small classes, small faculty to student ratios, and an impressive record of graduates going on to complete graduate degrees. It is far from the most prestigious of such colleges, but it is no slouch either. Hampshire is among the better of the myriad of small liberal colleges in the United States.

The campaign for divestment on campus was begun by a group which, consistent with the BDS position, viewed all of Palestine as occupied and colonized. Though the Board denied it was responding to pressure, the Board voted to divest its $40 million endowment of any investments in 200 companies including six pushed by BDS on campus, e.g. General Electric, ITT and Motorola. The President of the college at the time, Ralph Hexter, admitted the college had initiated its actions in response to student pressure, but that the action taken had nothing to do with any opposition to Israel. This aroused the ire of Alan Dershowitz, whose son went to Hampshire College. Within two years, Ralph Hexter was no longer president; he was replaced in 2011 by Jonathan Lash, an environmental expert who for six years in the nineties chaired the President’s Council on Sustainable Development.

Hexter was forced to leave after only three years even though he was an Ivy-league educated classicist, an openly married gay scholar with an excellent record as a fund raiser. What he did not know how to do was manage a student body that was radically left, whether the issue was security cameras in parking lots, ostensibly to protect vulnerable students from sexual assault but interpreted as invasions of privacy, or the issue of his alleged support for institutional racism (Hampshire College in overwhelmingly white Amherst Massachusetts hosted a student body in which 25% were members of visible minorities.), and over the attempt to move administrative offices to a more central convenient location. The cause for “firing” was not just over the blow-up over the divestment issue. What the whole sorry episode indicated was a record of a significantly-sized but a minority of a supposedly radical group of students incapable of discriminating between issues of security cameras, world political crises or the location of administrative offices. All these issues demanded the same fiery inflammatory speeches and the belief that outrageous speech is equivalent to radical action.

The policy that the College Board approved on 7 February 2009 was a decision to divest investments in its small endowment from 200 companies perceived as in breach of the college’s standard of social responsibility. No reference at all was made to Israel. The list included Caterpillar, Terex, and United Technologies as well as the three companies previously mentioned on the list targeted by the Students for Justice in Palestine.

All the protests and press releases could not overcome the reality that the Board’s actions were perceived as bending before pressure to a radical group of students with an anti-Israel agenda. The reality was that these were ersatz radicals, satisfied with the most ephemeral of victories with trivial or no consequences except the backlash that made almost all other colleges fearful of following the Hampshire College precedent. Further, the college insisted that the divestment was based on the fact that these companies were ostensibly guilty of “unfair labor practices, environmental abuse, military weapons manufacturing, and unsafe workplace settings.” The press release was unequivocal: “Israel was not the cause for divestment from the State Street Fund.” Hampshire College insisted, in fact, that the college “had refused to divest from Israel.” Perception, however, won over substance. In the long run, both the College and the BDS movement suffered enormously from the negative fallout and the misrepresentation of what had taken place.

BDS had its fifteen seconds in the divestment limelight. Drugged with the illusion of success, by 2014 BDS claimed additional breakthroughs at Swarthmore and Vassar, two other even more esteemed liberal college campuses of privilege and detachment from the harsh realities of life. Those students, however, were not satisfied with a picayune pinprick; they went after the pension giant TIAA-CREF in spite of a past record where BDS claimed a victory over an action by the fund that had nothing to do with the BDS campaign. Victories in student votes of a small minority of students who pack a meeting proved inconsequential. This was true of even causes that have much broader and deeper support among the student body, the effort of Mountain Justice to get the Swarthmore College to divest in firms involved with fossil fuels. This was the response of Gil Kemp, Chair of the College Board of Management, in an open letter on divestment dated 13 September 2013 that is even more applicable to the Palestinian issue than the environmental one.

After firmly proclaiming support for the climate change doctrine and the fears of the negative consequences, and the support for alternative energy sources, after lauding its own action plans to deal with the issue by the college, in response to the effort of Mountain Justice to eliminate fossil fuel shares from their portfolios, the College Board rejected the request on consequentialist grounds that costs would far outweigh any benefits posing “an unacceptable risk to the College’s finances” and an estimated loss of $10-15 million in income annually for the fund. Nor would divestment have any significant impact on the “behavior of fossil fuel companies, or galvanize public officials to do something about climate change, or reduce America’s reliance on fossil fuels.” Even as a “a symbolic act designed to mobilize public opinion against fossil fuels,” the efficacy of such a move was denied. “Divestment’s potential success as a moral response is limited – if not completely negated – so long as its advocates continue to turn on the lights, drive cars, and purchase manufactured goods.” Is this not far truer of efforts to enter into the hazardous fray of the Israeli-Palestinian conflict where the support is far less and the complexities far greater?

The divestment strategy may have had a few minor and meaningless empty victories, but the negative repercussions have been far greater than any accomplishments. What about the sanctions campaign?

I will discuss that effort in my blog on Sunday morning when I focus more intently on the boycott efforts, the campus campaign and wrestle in greater detail with the ethical issues.

[1] For these and subsequent polling results, I have relied primarily on the surveys of the Brookings Institute in cooperation with the Sadat Chair for Peace and Development at the University of Maryland and its polls of American public attitudes to various aspects of the Israeli-Palestinian conflict. (December 2014).

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?