William Schabas: Was He Pushed or Did He Jump?
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:
- 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.”
- 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.
- 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.