UNHRC Report.2014 Gaza War.IV. Context and Ius ad Bellum

The UNHRC Report on the 2014 Gaza War

Part IV: Context and Ius ad Bellum

by

Howard Adelman

The section on context in the UNHRC Report on the 2014 Gaza War is packed with interesting material even though it only has five paragraphs, an odd fact in itself since exploring the reasons for going to war is 50% of the obligation of applying humanitarian law to violent conflicts. The section begins with the following two sentences: “The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.”

There are five words about the rocket attacks on Israel. That item is placed second, sandwiched between continuing occupation by Israel and the fading possibility of achieving self-determination for the Palestinian people. The evaluation is almost explicit: continuing occupation provoked the rocket attacks in the context of the failure to achieve an independent Palestinian state. The opening part of the first sentence is about the “protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip.” This not only assumes that the Gaza Strip is occupied, as the UN officially does, but that the occupation of the West Bank and East Jerusalem is of the same order as that of the Gaza Strip. East Jerusalem, including the Old City, has already been relegated to a Palestinian state and regarded as under foreign occupation; the original 1947 UN resolution on partition putting Jerusalem neither under Jewish nor Arab control has been relegated to the dustbin of history. Further, only the failure to achieve self-determination of the Palestinian people is included as a receding goal; there is no mention of the security of Israelis. That is the context. Whatever one is to believe about the Middle East, this is not a statement of an impartial investigating body that presumably should either avoid taking sides, especially when unnecessary, or, at the very least, expressing some awareness of its own distinct bias.

The section on context is so short that I can reprint the whole of it following the opening two sentences quoted above of paragraph 53:

  1. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. Two previous rounds of hostilities in the Strip since 2008 had not only led to loss of life and injury but also weakened an already fragile infrastructure. Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma. In the West Bank, including East Jerusalem, settlement-related activities and settler violence continued to be at the core of most of the human rights violations against Palestinians. In the absence of any progress on the political front, the risk of a flare-up of the situation was evident.
  2. In the meantime, threats to the security of Israel remained all too real. Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity. According to one witness, residents of her kibbutz experienced regular panic attacks after a tunnel discovery in March 2014 and the explosion of an alleged tunnel exit on 8 July. Several other infiltration attempts were thwarted by the IDF during July and August.
  3. The events of summer 2014 were preceded by an agreement, reached on 23 April 2014 between the Palestinian Liberation Organization and Hamas, which sought to end Palestinian divisions. On 2 June 2014, President Abbas declared the formation of a Government of national consensus. The Government had yet to assume its full responsibilities in Gaza when active hostilities broke out in the Strip in July 2014, thereby leaving Hamas exercising government-like functions, as had been the case since June 2007.
  4. On 12 June 2014, three Israeli teenagers were kidnapped and brutally murdered in the West Bank. In response, Israel launched an extensive search and arrest operation, which lasted until the bodies of the teenagers were found on 30 June. On 2 July, a 16-year-old Palestinian teenager from East Jerusalem was viciously murdered by being burned alive and his body discovered in West Jerusalem in what appeared to be an act of revenge for the murdered Israeli teenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were further fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread protests and violent clashes ensued between Palestinians and the Israel Defense Forces.
  5. On 7 July 2014, the Israel Defense Forces commenced operation ‘Protective Edge’ in the Gaza Strip, with the stated objective of stopping the rocket attacks by Hamas and destroying its capabilities to conduct operations against Israel. The operation began during Ramadan, the Muslim month of fasting. After an initial phase focused on airstrikes, on 17 July 2014, Israel launched a ground operation, which it declared sought to degrade “terror organisations’ military infrastructure, and [… neutralize] their network of cross-border assault tunnels”.  A third phase began on 5 August and was characterized by alternating ceasefires and on-going air strikes. The operation concluded on 26 August when both Israel and Palestinian armed groups adhered to an unconditional ceasefire.

The causes and precipitators of the war are divided into two overall historical frames, the history of Israeli-Palestinian relations since 2007 and, secondly, the internal struggles between two factions among the Palestinians, Hamas in Gaza and Fatah in the West Bank.  Further, there are two geographically-based classes of factors: the situation in the West Bank and East Jerusalem and, secondly, the situation in Gaza. In the Report, the factors in the West Bank boiled down to four: i) the dim prospects of a peace agreement that would facilitate Palestinian self-determination; ii) settlement-related activities and settler violence that allegedly constituted the bulk of human rights violations against the Palestinian people; iii) the lack of political progress and the continuing Israel-inflicted human rights violations that had turned the West Bank into a tinder box in which the risk of a flare-up was evident; iv) the killing of three Israelis by Palestinians and the reprisal killing of a Palestinian by an Israeli.

As far as the situation in Gaza, four factors were also cited: i) the blockade; ii) the rocket attacks from Gaza onto Israel; iii) the digging of tunnels from Gaza into Israel; and iv) not the failure of but the prospect of  a reconciliation between the PA and Hamas. Let me deal with them all in reverse order.

Given that the apparent about-to-be-realized reconciliation between Hamas and the PA, one possible explanation for the outbreak of the war could possibly have been the use of war to disrupt the implementation of the agreement. The Report nowhere suggests this and simply notes that the reconciliation was underway. But it could have considered that argument. After all, in the seventeen months after Hamas took total control in Gaza in June 2007 following its electoral victory the year before, that is, following Hamas’ complete takeover of the Palestinian Authority national government within Gaza formed in March and headed by Ismail Haniya by a coup, in the course of and following the takeover, an estimated 600 Palestinians, one-quarter of the number purportedly killed in the fifty day Gaza War in 2014, were killed. In between May of 2008 for the next six years many more died, but not nearly the number in the initial militant phase of the conflict between Hamas and the PA, even including those murdered by Hamas under the cover of Operation Protective Edge. On all of this except for the last item, the Report is silent as if it is irrelevant to understanding the context.

Agreements of reconciliation, such as the May 2011 Cairo Reconciliation Agreement, were never implemented. In April 2014, two months before the outbreak of the Fifty Day Gaza War, an agreement was signed to form a unity government and hold elections. On 23 April 2004, both parties made a joint announcement about the formation of a new technocratic government prior to both parliamentary and presidential elections that would follow. The agreement said nothing about Israel, a two-state solution or the recognition of Israel by the Palestinian unity government, but President Abbas announced that the signing of the agreement was understood to imply both of these terms. On 2 June 2014, President Abbas swore in a new technocratic unity government.

President Benjamin Netanyahu denounced the agreement between Abbas and Hamas, that he repeatedly termed a terrorist organization committed to the destruction of Israel. Abbas issued a statement saying that Israel was out to sabotage the new government. Contrary to Netanyahu’s prophecies and warnings, the European Union, including France and the United Kingdom, as well as Russia, China, India, Turkey, welcomed the new unity government as a step towards peace. The Israeli cabinet, in contrast, voted to impose further unspecified sanctions against Palestine.

The war interrupted but did not end that process of Fatah-Hamas reconciliation even though Fatah stood aside, refusing to get involved militarily and allowing Hamas to be beaten to a pulp. The negotiations resumed in earnest after the war was over, but that process also recently came to naught. One might have thought all of this was pertinent to the issue of determining whether Israel initiated military action in Gaza to undermine the new unity government and once again set Hamas and the PA against one another. On the surface, this indeed did seem plausible. But there is no discussion of this in the Report. Perhaps it is because during Operation Protective Edge, Israel’s Shin Bet brought Abbas very convincing evidence that Hamas was plotting to depose Abbas and assume rule over the West Bank by activating its sleeper cells across the territory to instigate a third intifada.

Israel had not waited for Abbas to act. On 1 July, Israel launched Operation Brother’s Keeper, ostensibly in response to the kidnapping of the three Israeli teenagers (see later). The crackdown targeted Hamas’ militant cells and leadership in the West Bank resulting in 11 killed, 51 wounded and over 400 arrests, many of them recently released prisoners in the Gilat Shalit 1,100 prisoner exchange for Shalit’s return to Israel. Surely this was relevant to consider whether Hamas’ increased reign of rockets was at least understandable and, possibly, even justifiable.

Shin Bet’s evidence for a plot may have been false. After all, Abbas did revive the negotiations for a unity government. However, in the interim, Israel acted with force against Hamas in the West Bank, presumably with the blessing or perhaps only acquiescence of Fatah. Abbas did nothing to interfere with Israel’s sweep through the West Bank. However, whether or not there was secret cooperation between Fatah and Israel, surely the Israeli government’s serious concern about the formation of a new unity government with Hamas as a partner was at least relevant in understanding and trying to assess whether the instigation of all-out hostilities was warranted as a matter of self-defence, as Israel declared, or whether it was an act of aggression deliberately undertaken by Israel to destroy the prospect of a new unity government. In any case, if the latter was Israel’s objective, it did not work because negotiations over a new unity government started up again at the end of Operation Protective Edge. Further, by the summer of 2015, they had self-destructed on their own accord without any military intervention by the Israelis.

What about the blockade of Gaza and Hamas’ building of tunnels and sending rockets into Israel prior to the outbreak of the war? In 2007, after Hamas seized total power in Gaza, Hamas denounced the Oslo Accords, rejected the two-state solution and declared its objective to be the elimination of Israel. Surely, that is relevant as a possible casus belli. Israel initiated a land, sea and air blockade of Gaza. Israel had disengaged from Gaza. Instead of Palestinian society advancing its process of self-determination alongside that of Israel, the latter witnessed the emergence of a much more formidable and determined enemy in Gaza. This was the strongest blow that the Oslo Accords had received.

But this is not how the Commission wrote up the preceding events. Rather, with a weakened and already fragile infrastructure, “Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma.” The focus is on the Palestinian people as a whole. The different factions are not recognized. The people are raised to heroic status for their stamina in the face of great challenges. Now one could write the account much more from a Palestinian perspective than I did, but the contents in the report are written like first level history writing in which one side consists of heroes and the other of bullies and aggressors. Since it would be hard to dub Hamas as heroic, especially given the documentation of their actions, the virtuous attributes are assigned to the people as a whole. And no distinction is then made between the response of West Bankers who, whatever the inconveniences and hardships of the occupation, have economically prospered and strengthened the infrastructure, and the residents of Gaza whose infrastructure has been repeatedly destroyed by two previous violent encounters and whose re-investment in infrastructure has been significantly dedicated to building first quality attack tunnels and purchasing rockets and missiles.

The Report does say that, “threats to the security of Israel remained all too real.  Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity.”  Go back to 5 March 2014 when the Israeli navy intercepted a ship with a load of scores of long range missiles from Iran. Subsequently, Hamas spent its scarce funds for infrastructure on a monument to celebrate its rocket attacks that took the war into what Hamas dubbed the heart of the Zionist enemy. Reading the Report, one would never know that the EU, Canada, Japan and the U.S. as well as Israel had dubbed Hamas a terrorist organization, while the UK and Australia restricted that depiction to its military wing, the Izz ad-Din al-Qassam Brigades.

The Report provides as context that Hamas “increasingly launched rockets during June and July.” But rocket attacks went back to 2013. In January alone, 22 rockets were aimed at Israel; there were 9 in February and 65 in March. During the negotiations of a new unity government between Hamas and Fatah, rockets launched fell to 19 and 4 respectively in April and May, but then leaped again to 62 in June. Perhaps these figures seemed, in retrospect, insignificant in light of the 2,874 rockets Hamas rained on Israel in the opening month of the war. But surely these actions were relevant to depicting the context.

What about Palestinian activities in the West Bank? The key turning point that could have ignited the third intifada was the killing of two Palestinian teenagers on Nakba Day, 15 May 2014 by sniper fire. On 22 May, CNN broadcast evidence that the shots were not rubber bullets as the Israelis claimed, but live ammunition that had been fired against the Palestinian protesters, likely from the vicinity of Israel’s Ofer military prison. International demands for an independent investigation were ignored. On 12 June, possibly in reprisal for the shooting of two Palestinian teenagers, three Israeli teenagers were abducted in the West Bank and were eventually found dead.  Israel blamed Hamas which initially denied the charge, but Israel released documents showing that a Hamas member, Hussam Qawasmeh, had orchestrated the abductions after his brother had received $60,000 from Hamas in Gaza. On 20 August, Saleh al-Arouri, a Hamas leader in Turkey, acknowledged responsibility and said that the goal was to ignite a third intifada. Was this not relevant to the context?

The original specific goal of the abduction of the three Palestinian teenagers was evidently to hold the teenagers in return for the release of many more Palestinian prisoners, while, in the interim, sabotaging the progress on the Palestinian unity government as well as firing up the youth in the West Bank and demonstrating Hamas leadership even there. The PA confirmed Hamas responsibility. Then Hamas did as well, but insisted that it had no prior knowledge of the incident, did not condone the targeting of civilians but nevertheless celebrated the action as a response to oppression and an act of resistance. Since 2013 until these abductions, the PA and the Shin Bet together foiled about one hundred prior abduction attempts, the PA almost half of them. Was this not relevant to depicting the context? The incident triggered the reprisal Operation Brother’s Keeper by the Israeli military mentioned above, and human rights organizations, including Israel’s B’Tselem, denounced the disproportionate response. The denunciation could be expected from B’Tselem, but it also revealed that the human rights organizations did not interpret proportionally to mean the ratio of response and actions in relation to the military objective as required by humanitarian law, presumably foiling future kidnappings and preventing another intifada, but the ratio of the effects on each side.

However, suspicions about the real intentions of the Israelis rose when it was discovered that the Israelis did not learn of the deaths of the three teenagers on 30 June when the bodies were found, but had known for a long time that they had been killed. On the other side, Hamas significantly escalated its rocket attacks in response to Operation Brother’s Keeper. Negotiations between Israel and Hamas to halt and roll back the escalation broke down when Hamas added to its demand that Israeli reprisal bombings against Gazan targets be stopped in return for the cessation of rocket fire, but the conditions now included a demand that the blockade be immediately lifted and prisoners released. Hamas also escalated its rocket attacks once again. That is when Operation Protective Edge was launched.

Providing a far more adequate and fuller context would have only taken another page or two of the Report. Why was this aspect of the Report so impoverished and so deformed? Now I am not arguing that I have provided a more objective treatment than that provided by the Commission, only that it is much more complete. A much more complete picture was necessary for the Commission to assess to what degree the escalation of violent hostilities and their instigation into all-out warfare fell within the range of military actions permitted by the set of ius ad bellum criteria for going to war. Was Hamas the proper authority to escalate its rocket attacks since it was not the government of the Palestinian state, but only the political faction in de facto control of Gaza? Did each party warn the other? Certainly Israel announced that unless the rocket attacks ceased, Israel would launch a much more formidable response. In fact, from the Israeli side, it is very difficult to suggest under any of the criteria for evaluating breaches in ius ad bellum that Israel was in breach of any of them, including:

  • Proper authority
  • Fair warning
  • Just cause
  • Probability of success
  • Proportionality in resorting to military means
  • Last resort

On the other hand, the initiation and escalation of the violence by Hamas at best only satisfies the criterion of just cause. Hamas had no probability of success. If self-determination was simply the goal, then following the path of the PA would surely indicate a greater route to success. Resorting to an escalation in violence was only justified if Hamas had a larger goal, and Hamas was explicit in asserting that it did – the destruction of Israel. Given that goal, violence was not a last resort as it might have been if the goal was simply self-determination or lifting the blockade, but a requisite first step.

I can only speculate, but I presume this truncated and distorted account of context was so brief because nothing the Commission could have written would allow any detached reader to conclude that Hamas was justified in escalating the number of rockets fired at Israel according to humanitarian law governing the initiation of war. Quite the contrary. The best route to lifting the blockade would be to agree to giving up aggression against Israel and giving up its goal of eliminating Israel from the map of the world.

The initial substantive content of the Report instead of reinforcing the credibility of what would follow undermined it.

Next Blog: Ius in Bello – Hamas Violence Against Israel During the War

UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology

by

Howard Adelman

How one investigates is as important as who does the investigation (the previous blog) and what framework one brings to the investigation (the first blog in this series).  Further, how one communicates the results of one’s investigation is integrally related to what is revealed, but I will reserve the discussion of that aspect of the methodology only after we examine the majority of the Report. For the context of how results are conveyed is as important as the context of the actual events themselves and the methodology for determining facts.

The Commission never visited Gaza. Israel never even acknowledged the repeated requests from the 2014 Gaza War Commission to permit entry from Israel. Egypt would not even allow the Commission to enter via the Rafah crossing, allegedly due to the security situation (para. 3). However, as we read on, Egypt’s refusal was irrelevant. Why?

“Israel also regulates all (my italics) crossings allowing access to and from Gaza. While it is true that the Rafah crossing is governed by Egypt, Israel still exercises a large degree of control, as only Palestinians holding passports are allowed to cross, and passports can only be issued to people featuring on the Israeli generated population registry.” (para. 29) Israel controls who gets passports in Gaza. Why is this claim made? Israel “controls the Palestinian population registry, which is common to both the West Bank and Gaza, and Palestinian ID-cards can only be issued or modified with Israeli approval.”

Assertions like this undercut the credibility of the report. Though most readers of the report will be unfamiliar with the so-called passport war, the basic facts are these:

  • The PA, not Israel, overwhelmingly controls who receives passports in Gaza
  • The PA issues approximately 500 passports per business day to Gaza residents
  • The PA is the party, not Egypt, which restricts the issuance of passports based on vague security concerns
  • Egypt’s restrictions are imposed, not only for security reasons, but to prevent overstayers and using Egypt as a place to escape from living in Gaza
  • Hamas has a record of confiscating passports held by members of Fatah, in part in retaliation for the PA limitations on who gets passports
  • Gaza human rights organizations have campaigned to end the practice; thus A-Dameer, one of the Gaza-based human rights organizations, once declared that, “The PA automatically prevents people affiliated with Hamas from receiving passports. We have appealed to the prime minister on the matter, but have so far received no response.”
  • The enforcement of these practices shifts depending on the character of the relations between Hamas and Fatah at the time
  • The major obstacle to leaving Gaza has not been the absence of passports, but the possibility of entry to either Egypt or Israel, both of which restrict entry, but Egypt has permitted students to cross, those seeking medical services, those with visas to other countries and those en route to attend the annual haj pilgrimage
  • Israel’s veto rights based on the Oslo accords over the Palestinian population registry is almost totally irrelevant to the issue over the issuance of passports, and is a red herring if ever there was one.

Why would the commission damage its credibility over such a side issue? Because, just as in referring to the Palestinian State, the Commission is committed to reinforcing the position that Israel is an occupying power, for an occupying power has additional responsibilities that an alien belligerent does not have. This is a clear example of ideology more than even a human rights frame influencing the content of the Report.

However, by and large the writing of the Report has not been influenced by the imposition of such crass uses of ideology. The Commission has relied on expert witnesses, especially when it had to determine the type of weapons used in a specific incident. However, witnesses who might contest the findings are not used. In using expert witnesses from the medical field to reinforce the source of death or injury, the Commission does not explain why medical doctors concerned with children’s health in Israel were not interviewed, but those in Gaza were.

However, the Commission has primarily relied on affected individuals through written submissions (500) and interviews (280), and on other witnesses primarily from human rights organizations. I will later offer a hypothesis to explain this source as the primary evidence in the documentation. The Commission also heard from representatives of the government of the West Bank, as indicated above, referred to as the representatives of the Palestinian State. No explanation is offered for that designation. Nor is there any consideration presented of how such a designation might in itself determine Israel’s non-participation in the process and whether such a designation arose after Israel’s refusal to participate or was one of the provocations that incited Israel to remain aloof from the proceedings of the Commission.

The Commission claimed that “a number of Israeli non-governmental organizations were reluctant to cooperate with the Commission of Inquiry, fearing in some cases that there could be negative repercussions on their work.” This is hard to believe and no back-up is provided for this contention. Certainly B’Tselem, Israel’s premier human rights organization, seemed to show no reluctance in offering evidence and is extensively cited in the Report.

Those who were not interviewed rather than those who were may be of somewhat greater significance. I mentioned two types of missing witnesses above, Israeli doctors and military experts on the use of weapons who might contradict the findings of the one military expert employed. A military expert on munitions was consulted to determine types of weapons used. That testimony, which is included in the details of each of the incidents described, reinforces the sense of detachment and concern with factual detail in the Report, but there is no reference to other military experts who might have a different view, and, if so, how the Commission adjudicated between and among differences. We will have to see when we examine the detailed descriptions whether this was significant. Alternatively, was there sufficient consensus such that the attention to detail on the munitions had another purpose that explains why this needed to be included in such detail. This is especially important since there is relatively very little in the Report, as there was in the Goldstone Report, discussing weapons banned by international humanitarian agreements.

There is no record of interviewing military personnel on either side or experts from either side or from other armies, or experts in humanitarian law, mainly the ICRC already discussed, other than from human rights organizations. The Commission also relied on satellite imagery, video and photographic evidence. But all of these sources, both neglected and included, were subsidiary. The Commission “gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were done remotely, the lapse in time since the incidents occurred, and the possibility of reprisals.”

The primary method in examining and presenting the evidence of the depiction of individual incidents is the use of “reasonable grounds” as the measure of what took place. That is, what “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.” (para. 19) Such a determination is based on the reliability and credibility of the source related to the objectivity and quality of the evidence and the methodology by which the evidence was obtained. The validity and veracity of the information itself was evidently based on cross-section comparisons. In examining the presentation of individual incidents, we will have to see if a major method of scientific objectivity was used, namely what checks were used to see if the evidence was false – known as the application of the principle of falsifiability, or whether that principle was employed at all.

This allows me to segue into a very different methodology altogether, and not one even mentioned or discussed in the methodology section –s literary and stylistic methods of presentation as well as issues related to determining scientific reliability and objectivity. First, it is very interesting that the Commission decided to place the depiction of the damages to Israeli civilians and property first. Of the almost 500 paragraphs in the Report which constitute the bulk of its material, only 50, or 10%, deal with attacks from Gaza against Israel. 90% deal with incidents of civilian deaths and injuries and property damage in Gaza. That may be justified because the proportions represent the different degrees of damage done by each side to the other, something that will have to be determined by a specific examination of incidents.

Before the Commission gets into the examination of the specific incidents, it offers an account of the legal framework it uses and of the context in which it places its investigation and the conflict that occurred. On the matter of the legal framework, the Report discusses three area of international law – humanitarian law (14 paragraphs), human rights law (8 paragraphs) and international criminal law (5 paragraphs).  The proportion given to each type of law is no indication of the importance in compiling the Report. For when one studies the Report, it is clear that the overwhelming framework for examining the legal issues in the conflict is humanitarian law.

On the issue of humanitarian law, the Report presents the most relevant principles for the conduct of war and presents them fairly and succinctly.  However, the Report offers no explanation of why it neglected to deal with other very relevant principles of humanitarian law. The first concerns not the conduct of war (ius in bello), the means and methods of engaging in a violent conflict, but the reasons for going to war in the first place (ius ad bellum). The Geneva and Hague Conventions are summarized as well as some follow-up treaties and references to customary international law, but case law seems to be reserved largely as citations in depicting and analyzing specific incidents. There is only an implicit and glancing reference to the reasons each side had for engaging in war in the first place and the extent to which the initiation of hostilities was justified.

This point is crucial. For both strands of international humanitarian law are critical to analyzing a conflict. To what extent does the Report engage in such discussions and what reason, if any, is offered for the relative inattention? The section on humanitarian law dutifully lists all the relevant international instruments. However, the focus of the discussion overwhelmingly concentrates on reinforcing the claim that Israel is an occupying power because:

  • Israel still occupies part of the Palestinian entity, namely the West Bank and East Jerusalem, and occupation of only part of a territory is sufficient to define a party as an occupying one
  • Israel exercises effective control over Gaza, not because it any longer has troops on the ground, but because it retains the capacity to launch troops easily into Gaza
  • Israel continues to control the air space and marine access
  • Israel exercises de facto control over the Gazan economy
  • As mentioned above, Israel controls not only access and egress via the crossings into Israel, but over the crossing into Gaza through its veto over the Palestinian population registry and, hence, over who does or does not get passports.

However, the key criterion of the readiness militarily to occupy a territory is whether a country, in this case, Israel, can at will assume physical control of the territory. Since Israel, by the war itself, gave proof that it could NOT do this both in beginning hostilities against Gaza as well as in the staging of those hostilities – conducting a ground war only after a period of air war – Israel could not be an occupying power by this criterion. The interesting point is that the Report cites the relevant measure but engages in no discussion of whether the measure is or is not applicable. It merely assumes that Israel had the capability in spite of the massive evidence to the contrary. It is not simply that the massive evidence is ignored, but even the argument is totally bracketed.

Nor does the Report get onto the issue of necessary versus sufficient conditions. Each criterion the Report cites is a criterion for determining occupational status. The question is whether they amount to sufficient conditions only in combination? Or does the presence of any one by itself determine whether one state is in occupation of another territory? The Report is written not in the form of a social science investigation, which considers and weighs the arguments for each side in a contentious controversy, but in the form of a prosecutorial notification before a court citing only evidence and arguments for the viewpoint it is putting forth, a viewpoint which reflects the position of the UNHRC and majority of members of the UN when it comes to the Gaza case (but not the case of Russia in the Ukraine, for example).

Perhaps Israel is legally an occupying power. The evidence as presented is totally unpersuasive and defies common sense. For if Israel were really in control of Gaza, how did Hamas manage to smuggle all those missiles and mortars into Gaza? Surely Israel’s going to war and the way it went to war are the best indicators that it did not exercise effective control over Gaza. If the issue of effective control of air space and of maritime access and of occupying a part of the territory of a state were key, then given the American extra-territorial military role on the Dew line in Canada, and its deployment of nuclear-armed missiles in the north of Canada contrary to general public knowledge, the United States, one might argue, has been an occupier of Canada, quite aside from the fact that America is by far the most important influence on the Canadian economy. The absurdity of such a claim, that America is an occupying power in Canada, should at the very least instigate the Commission to present the arguments and evidence for the other side in full instead of dismissing them as simply incidental and troublesome claims by the party, namely Israel, which allegedly wants to disown its responsibilities.

If the primary emphasis is on the issue of humanitarian law, why the big emphasis on the issue of occupation? And why does the issue take so much of the space within the humanitarian law section when the key issue of occupation seems to be the applicability of human rights law and the point the Report makes at the end of the discussion of human rights law: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.” (para. 46) If Israel is an occupying power, then Israel is accountable to Gazan residents for justifying its behaviour and the relationship is not just one between two alien entities, Israel and Gaza.

The Report not only neglects key issues of humanitarian law. First, it avoids the critical issue of the justification for going to war in the first place. However, even other issues in the conduct of war than proportionality, distinction between combatants and non-combatants and the choice of military weapons used, are not discussed. Why is there no discussion of the principle of humane treatment? That principle prohibits violence to life and person, torture, taking hostages, treating the enemy population, whether combatants or non-combatants, in a humiliating and degrading manner, executions without due process and proper legal protections. In fact, the principle of humane treatment is referred to only once in the Report, not in the paragraphs discussing humanitarian law, but in a depiction of one incident of claimed mistreatment by Israeli troops. In paragraph 342, the Report cites the relevant Articles 27 and 29 of the Geneva Convention IV, and then makes the claim that in several cases, Palestinians were detained in their homes in Khuza’a, and then insulted, threatened with death and ill-treated by members of the IDF.

Quite aside from whether Israeli soldiers behaved this way in this incident – which will be discussed in another blog – or whether this was an exceptional incident, the real issue is why was the principle of humane treatment never discussed in the legal section and only cited once as far as I could find in the whole document?  After all, the Report does discuss and describe the extra-judicial execution of alleged collaborators (paras. 490-502), describing them as not uncommon, as mostly perpetrated against those imprisoned in Gaza before the outbreak of the war, ostensibly as a warning against other potential collaborators. These were among the most heinous breaches of the principle of humane treatment, and infinitely worse than the alleged conduct of the Israeli soldiers in this one incident cited. The Report documented 21 incidents in total (there were others), at least 11 of them from persons previously incarcerated in Al-Katiba prison. “On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were ‘found guilty of giving information on the whereabouts of fighters and civilian houses’.” (para. 495)

Overt abductions, torture, extra-judicial killings, kangaroo trials in some cases, are all severe breaches of the principle of humane treatment, some evidently for strictly political reasons to dispose of Fatah personnel during war when the killings would not be noticed. It is interesting that the Report includes a promise made by the PA that the government would investigate at least 25 cases under this rubric “once it recovers control of the Gaza Strip” and the PA did not mean recovering control from Israel. This and other comments all challenge the Report’s assumption more than conclusion that Israel was an occupying power in control of Gaza. Another relevant aspect is that witnesses in Gaza refused to come forward and be acknowledged lest revenge be meted out against them.

The Report has to be applauded by inclusion of these incidents and pointing them out as breaches of the Geneva Conventions. But then why not discuss the applicable principle of humane treatment in the legal section? Why the overall emphasis on proportionality? There are other principles that are also ignored, one related to the principle of non-discrimination which directly overlaps with human rights principles. So is the principle ignored of preferential protection for women and children non-combatants, more particularly, protecting women from rape or assault, and prohibiting children from being combatants? Ignoring rape and assault of women might be understandable since neither side had a reputation for engaging in such activities. But there is plenty of evidence and certainly far more allegations that the militant groups in Gaza had no compunction against the use of child soldiers. Did the Commission not have a responsibility to investigate such allegations?

Once the principles of ius ad bellum were ignored, and which will be discussed in much greater detail in my next blog dealing with context, the playing down of the principle of humane treatment and of the gender issue may have been given little play because the condemnations overwhelmingly bring Gaza militants to the forefront and allow Israeli troops to appear much better in following such norms. But this is a mere speculation. We shall have to establish whether it has greater importance when we get deeper into the Report.

Next: Context and the Justification for Going to War

UNHRC Report 2014 Gaza War.II.The Commissioners

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.

UNHRC Report.2014 Gaza WAR.I.Mandate

The UNHRC Report on the 2014 Gaza War

Part I: Mandate

by

Howard Adelman

The basic question is whether a) the United Nations Human Rights Council (UNHRC) was operating outside of its mandate field or its field of supposed expertise, and b) in setting up a commission of inquiry, its own presumptions about human rights law, for which it has a clear mandate, deformed in any way the application of humanitarian law in its analysis of the 2014 Gaza War.

On 24 June 2015, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict delivered its report (A/HRC/29/52) (UN Gaza War 2014). The commission was set up by the UNHRC and the report was delivered as agenda item 7 under the more general heading, “Human rights situation in Palestine and other occupied Arab territories.” One year earlier, on 23 June 2014, when the Gaza war was still underway, the UNHRC adopted resolution A/HRC/RES/S-21/1 to establish the independent, international commission of inquiry to investigate all violations of international humanitarian law (my italics) 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, and to report to the Council at its twenty-eighth session in March 2015. The report was delivered only three months late. The mandate read as follows:

“Ensuring respect for international law (my italics) in the Occupied Palestinian Territory, including East Jerusalem”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law (my italics) 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, whether before, during or after, 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 (my italics), and to report to the Council at its twenty-eighth session”.

However, the United Nations never mandated the UNHRC itself to investigate humanitarian law. Human rights, yes. Humanitarian law, no. Humanitarian law is not mentioned once in the long resolution of 15 March 2006 setting up the United Nations Human Rights Council to replace the United Nations Commission on Human Rights which had fallen into total disrepute. According to the website of the Commission as well as the UNHRC, the Commission of Inquiry interprets this mandate as including investigating the activities of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip and Israeli actions in the West Bank, including East Jerusalem, by looking into a broad range of alleged violations committed by all parties under the full range of human rights, including economic, social and cultural rights. [Note that humanitarian law is not mentioned in this section.]

Here again, Res. A/60/251 setting up UNHRC does refer to regional groupings of states and especially individual states, but nowhere can we find any mention of armed groups, military, violence, etc. The UNHRC was mandated to strengthen the promotion and protection of human rights around the globe, that is, the rights of individuals in relationship to the states in which they live or of which they may be members. The UNHRC was not given responsibility for protecting all aspects of international law, but only those aspects having to do with the relationship between states and its citizens or individuals living on the soil governed by a state. Two overlapping realms of international law – refugee law and humanitarian law – deal respectively with the rights of individuals who are not members of a state that provides for their protection and for the laws governing the initiation and conduct of war. Yet the mandate, now as specifically interpreted by the Commission, was to look into the actions of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip, the West Bank and East Jerusalem as a part of the West Bank.

Under humanitarian law, this would mean investigating what happens to prisoners of war, how the wounded are treated, how military personnel are treated, and how and whether the state makes a strong effort to distinguish between civilian and military personnel. When we examine the report in detail, it will be interesting to see what aspects of humanitarian law are covered and which are not. We are, however, no longer surprised that the UNHRC would decide to investigate the protections afforded civilians and the permitted military means used in the 2014 Gaza War. After all, five years earlier, on 12 January 2009, under almost similar wording, the UNHRC set up what came to be known as the Goldstone Commission.

The difference in wording is interesting. Resolution S-9/1 setting up the Goldstone Commission in 2009 decided to: “dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law (my italics) by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” What a difference five years can make! Unlike the Goldstone Report, which was found to be so flawed, even by Richard Goldstone himself after it was published, the 2014 mandate mentions both belligerents and not just one (Israel) and does not restrict the investigation to Palestinian territories. The 2014 mandate does not predefine the war as unjust on the part of Israel by referring to the “current aggression” by Israel. In a more subtle shift, the reference to humanitarian law in the Goldstone Commission mandate followedthe investigation of the application of human rights law. In the 2014 mandate, the reference to humanitarian law precedes the reference to human rights law.

Recall that Mary Robinson, who eventually supported Richard Goldstone’s Report, partially because of her respect for him, and who had been the first person approached to head the 2009 Commission, refused to take the position as head of the 2009 Commission because the mandate was so one-sided and had been “guided not by human rights but by politics.”  Richard Goldstone himself, before taking the position, complained of its failure to take into account the actions of all parties in the conflict and informally received approval by the President that the Commission could broaden its mandate. However, the broadening seemed peripheral and, in any case, the UNHRC ignored the recommendation applicable to Hamas. Thus, Goldstone’s insistence that the informal broadening and the fact that his initiative received no objections at a plenary session of UNHRC was sufficient, proved incorrect, as did his chastisement of Hillary Clinton for her “tiresome and inept” criticisms of the one-sided nature of the mandate. This could not be done with the 2014 mandate which formally required the mission to look at all parties: Israel; the Palestinian Authority; Hamas, which governs Gaza; and other armed Palestinian groups. The two mandates, however, are similar in covering the West Bank, said to include East Jerusalem instead of being referred to as a separate entity, though the violent conflict did not take place there.

In 2009, Richard Goldstone in presenting his report said that he and his fellow commissioners had been motivated by four goals:

  • To uphold the principle of the rule of law and, more particularly, humanitarian and human rights law
  • To ensure the protection of civilians during armed conflict to the greatest extent possible
  • To ensure that no state or armed group should remain immune from accountability and justice
  • Finally,“out of a deep concern for the hundreds of civilians who needlessly died and those who suffered injury and dislocation of their lives.”

The key question in the 2014 inquiry would be the same. Were civilians “to the greatest extent possible” protected during an armed conflict? The question was not, were civilians protected to a reasonable degree in accordance with the laws of war? Because humanitarian law does not require that civilians be protected to the greatest extent possible, for, in the end, that would entail not going to war at all by either side. Killing per se is unlawful under human rights law. However, under humanitarian law, killing combatants is not unlawful and even the killing of civilians is permitted under the situation of “collateral damage” where deaths of civilians are permitted under the principle of proportionality, which is not about protecting civilians to the greatest extent possible, but requires balancing the incidental loss of civilian life or injury to civilians in relationship to the concrete and direct military advantage expected from a particular attack. In other words, it is not about the numbers killed relative to one another on each side, but whether those civilian deaths were proportionate to the military goals being pursued.

There is also an overlap between humanitarian and refugee law. Some of the norms applicable to the Gaza War require:

  1. If the territory is legally an occupied territory, the prohibition under the Fourth Geneva Convention of individual or mass forcible transfers, both within the occupied territory and beyond its borders; there is an exception – an occupying power is permitted  to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons;
  2. Attacking belligerents is permitted, but attacking civilians and civilian property indiscriminately is prohibited;
  3. The duty to spare the civilian population as much as is feasible;
  4. The prohibition of reprisals against either the civilian population and its property.
  5. Permitting an unhindered passage of relief supplies and assistance.

Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome. To take up the latter point, in international studies a definitive distinction is made between humanitarian law, refugee law and human rights law. These three spheres overlap in their application, but the distinction does not. Human rights law deals with a state’s relationship to its citizens and other foreigners on its soil focusing on the protections of civilians from any oppression by a state. Refugee law deals with the rights of individuals who lack membership in a state that will protect them and are outside their state of normal residence, but, in situations of failing or disintegrating states, may even be living within their national home. Humanitarian law deals with the conduct of war, more particularly, though certainly not only, the protection of civilians affected by armed conflict. Unlike humanitarian law, which can never be suspended, some human rights treaties permit states to derogate from certain rights in times of public emergency and suspend certain key rights, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

The three spheres are said to overlap and complement each other. But, in reality, they are also at odds. After all, in war, targeting anyone for death, even if the person is a soldier, cannot be part of human rights law which, as interpreted in the last two decades, even restricts states from taking the lives of their own citizens even in cases of very heinous crimes. So it is very difficult to look at military behaviour through a military lens of humanitarian law if the primary glasses used are to assist in viewing that behaviour in terms of human rights violations. It is akin to using reading glasses to allow one to see distances more clearly.

Now it is well known that three agencies were set up to educate and monitor behaviour in each of these three fields – the UNHRC for human rights law, the UNHCR (High Commission) for refugee law, and the International Committee for the Red Cross (ICRC) for humanitarian law. So how come the UNHRC seems to be poaching on ICRC territory? One reason is conceptual.  ICRC in its 2005 statement on its own mandate, stated that, “International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons. They form a complex network of complementary protections and it is essential that we understand how they interact.” However, that is not how a coterie of human rights lawyers, researchers and professional actors who have made human rights their specialty, view it. For them, human rights is all encompassing and humanitarian law and refugee law are but specialized divisions of human rights law. The three fields are not related as overlapping, but one field is all-encompassing while the other two are subordinate.

But the rivalry is not just conceptual. This is quite evident. The UNHRC states unequivocally its imperial position: the UNHRC defines itself explicitly as the “principal human rights official of the United Nations.” But it is not the principal humanitarian law official of the international system. The ICRC, an organization much older than the UN itself, is. Yet the UNHRC saw no need to seek out the ICRC to forge a partnership to investigate the violent conflict in Gaza, or, for that matter, to cite the ICRC very much in its report. There is another reason, for the ICRC, unlike UNHRC, does not have a close relationship with any human rights organization, but particularly with the UNHRC which lacks a field presence. Further, human rights organizations define themselves as outspoken and, therefore, by their very nature, they speak out. ICRC, in contrast, has a confidential modus operandi.

But this does not explain why, of the 680 paragraphs and 1255 footnotes, ICRC is only referred to in 18 of them, that is just under 1%. Though ICRC was present and active in Gaza throughout the whole conflict, ICRC is only cited three times for evidence, each time with respect to Israeli behaviour – targeting civilians in an UNRWA school, targeting ambulance drivers and targeting the Gaza power plant. There is not one citation that says anything positive about Israel by the ICRC and no references to ICRC observations re Hamas conduct.

In addition to the three specific observational and interpretive issues, ICRC is cited three times with respect to two issues, the Palestinians aiming missiles at Israel, and here only to note that since the missiles could not be aimed properly, this would clearly be a mitigating circumstance in the degree to which they could found to be at fault. There are also two citations concerning Israel as an Occupying Power, not to discuss the legal issues raised, but to simply support the view that Israel has been an occupying power long before it invaded Gaza and even after it withdrew its troops.

The other 12 citations refer to ICRC as the definitive reference point on international humanitarian law, therefore granting in reality what they take away conceptually and concretely in the behaviour of UNHRC. Further, as the leading authority on humanitarian law, ICRC makes itself available to offer advice, particularly to the UNHRC, on the basic principles and guidelines applicable to various situations of alleged humanitarian law regulations. Why was so little attention paid to ICRC when it is clearly the most respected and widely recognized protector of humanitarian law as well as one of the most respected humanitarian organizations in the world? Most importantly, it is THE organization mandated under international law, including the Geneva Conventions, to both interpret humanitarian law and to protect the victims of armed conflict, including those wounded in war, combatants taken prisoner, the forcibly displaced and, most importantly for this report, the responsibility for protecting civilians and other non-combatants. Given ICRC’s well-known criticisms of some of Israel’s conduct, it could not be because ICRC is biased in favour of Israel. But ICRC is biased in favour of humanitarian law as a distinctive field, though overlapping with human right law, occupying a distinctly separate niche in international law.

In this analysis I will eventually discuss the key legal issues and the observations and interpretations of specific incidents where each of the belligerents were or could be found to be at fault. I will also compare the citations of ICRC compared to those attributed to such NGO human rights organizations as Amnesty International and Human Rights Watch who also presumptively assume a responsibility for humanitarian law, but almost always within a human rights frame. I will also question why the foremost authorities on applied humanitarian law are not cited or drawn upon for their experience in the application of international humanitarian law, namely the views of various Western armed forces on the ethical conduct of the war in accordance with international humanitarian law.

Just because the UNHRC is not the first among equals when it comes to humanitarian law, and just because it places international humanitarian law in a subordinate position to international human rights law, and just because its citations of the ICRC are so few, and even those few are feeble, does not mean that the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict could not conduct a proper investigation and deliver an excellent report. Certainly even on a cursory reading, it is much superior to the Goldstone report. If the Goldstone Report was worthy only of an E, a complete failure, a cursory reading of this report on the 2014 Gaza War appears to deserve at least a passing grade. Whether it will be a bare pass, a good pass or an excellent one will have to await our analysis.

One last word about the UNHRC’s own mandate and the mandate assigned to its commission. The Universal Declaration of Human Rights, the principles of which UNHRC is mandated to uphold, itself suggests that UNHRC in conducting this inquiry strayed both well outside its comfort zone as well as its responsibilities to the international community. For example, echoing Immanuel Kant, the preamble of that Declaration states unequivocally that its foundation is not only freedom and justice, but peace. Further, Article 3 states clearly that, “Everyone had the right to life, liberty and security of person.” War contradicts that and claims that belligerents have no right to life and no right to security, with the exception of the protection of civilians so long as that is possible given the strategies each side adopts. War by definition is a violation of human rights. But the Declaration is not concerned with violent conflict, either the reasons for going to war or the conduct of the war. It is concerned with such old standbys as freedom of speech, of assembly, as well as the new economic freedoms enunciated since the Universal Declaration was adopted. The latter document clearly refers to its mandate as focused on a state in relationship to individuals over whom it has charge.

International humanitarian law is about the conduct of states or quasi-state entities as they do battle, and primarily about the protection of individuals. Human rights are also about the protection of individuals. Those rights make up a very long list. However, by the time you get to Article 29 of the Declaration, the clear aspiration is peace. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Clearly that is aspirational since international order is stated as a precondition for the full realization of human rights. Yet the Declaration does not attend to the question of how an international peaceable kingdom can be established. The foundation of human rights law and international humanitarian law are fundamentally distinct.

If human rights are based on the universal declaration of 1948, international humanitarian law is based on the four Geneva Conventions of 1949 and the two additional protocols of 1977, as well as a number of specific treaties, such as Conventions on the use of specific weapons – such as phosphorous or poison gas – Conventions on the protection of cultural property during violent conflict, and all of these as interpreted by international jurisprudence. International law governs the initiation and conduct of armed conflict even if nowhere in the law is armed conflict defined. But somehow, we all seem to know what it is even when it is not defined. And certainly there was no dispute that humanitarian law applied to the Gaza conflict. However, just to be clear, the ICRC qualifies a situation of violence and then “sends a memorandum to the parties concerned setting out their obligations under international humanitarian law and offers its services.”

What constitutes an “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons taking a direct part in hostilities may be attacked – even with lethal force; and that killing of civilians in certain circumstances must be assessed pursuant to international humanitarian law’s principle of proportionality which requires a balancing of the incidental loss of civilian life or injury to civilians with the concrete and direct military advantage expected from a particular attack.

I will pay a great deal of attention to the application of this principle by the Commission the objectivity and expertise of which depends in good part on the expertise and mental frameworks of the Commissioners.

Next blog: The Commissioners

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?