Since last August when professor of international law William Schabas was appointed as the head of a United Nations war crimes inquiry into violations committed in Gaza over the summer, Israel repeatedly sought to remove him. Two weeks ago, Israel won. Schabas stepped down from the inquiry amid allegations of bias in a favor of the Palestinian government. He has been replaced by New York state Supreme Court Justice Mary McGowan Davis. Davis previously chaired the United Nations Committee of Independent Experts, which was a follow-up to the Goldstone Report and reviewed violations committed during Operation Cast Lead.
In 2012 Schabas was paid $1,300 for consultancy work with the Palestinian Liberation Organization (PLO). He provided a legal analysis regarding the Palestinian bid for non-member observer status. In his resignation letter (published in full below), Schabas said Israel claimed he was incapable of neutrality, but he stressed that advising governments is quite common in his line of work. Their argument, Schabas indicated, was that he was still beholden to the Palestinians, perhaps even seeking future financial compensation.
McGowan has been seen as more favorable to Israel. Norman Finkelstein noted on his blog that in McGowan’s last post reviewing Israeli war crimes, she agreed with Israel that it handled its own investigations into war crimes responsibly, mooting the need for an United Nations inquiry. Finkelstein also said McGowan was responsible for Richard Goldstone reversing some of his original findings in 2009.
Yet even with Schabas gone and McGowan in, Israel has rejected in advance any findings from the Gaza inquiry. It said Schabas’s “resignation cannot whitewash the fundamental and inherent bias of the commission itself,” in a statement by the Ministry of Foreign Affairs released last week.
“The removal of one symptom does not cure the disease,” Israel said, continuing, “Schabas’ imprint on the final report – to be delivered next month – cannot be purged after he directed and conducted the five-months-long research and evidence-gathering phases, with the drafting work already begun.”
But Israel’s discontent for Schabas runs deeper than his contract work for the PLO. Even before his term began it had called for Schabas to quit the commission.
Last July Israel’s Ministry of Foreign Affairs released a factsheet on the inquiry. At that time Schabas had not formally accepted a position with the human rights commission. Still Israel said Schabas should be scrapped because he had said in past interviews Prime Minister Benjamin Netanyahu and former President Shimon Peres should be investigated for war crimes. The dossier also asserted Schabas had exercised bias by participating in the 2012 Russell Tribunal, an activist war crimes inquiry modeled after a South African investigation. Moreover, Israel said Schabas had already made up his mind on the war, then still in progress, because he said to the BBC (per the Israeli ministry of Foreign Affairs), “There are huge numbers of civilian casualties on one side and virtually no civilian causalities on the other, and so prima facie, there is evidence of disproportionality in the response that Israel is undertaking in order to protect itself.”
Then in November Israel announced it would not comply with the United Nations investigation, citing Schabas by name as the source of both “an obsessive hostility towards Israel,” and “the committee’s one-sided mandate and the publicly expressed anti-Israel positions.” Israel’s Ministry of Foreign Affairs labeled the inquiry “the Schabas committee” and added it was rife with “foregone conclusions pretending to conduct an investigation.” The declaration of Israel’s non-cooperation went on to list five examples of Schabas’s criticisms of Israel and its leaders. Effectively, Israel’s announcement that it would not participate in the commission was placed on Schabas’s shoulders.
Later the same month, speaking at a Holocaust memorial at Yad Vashem in Jerusalem Netanyahu decried the Gaza inquiry in a speech where he equated Hamas to the Nazis. “Across the region, dictatorial regimes and brutal movements brutalize their peoples – suppressing women, lynching gays, forcing Christians to live in fear,” he said. “And who does the Human Rights Council of the United Nations condemn? Israel.”
Then one day before Schabas resigned, Netanyahu met with United Nations Secretary General Ban Ki-Moon and again relayed his opposition to the Gaza inquiry, stating it is a “dangerous step that could undermine regional stability.”
The commission has said it will continue with the investigation and it is still expected to publish its findings next month. However, Israel will not accept whatever conclusions it produces. Despite those strong words, Reuters reported last week that Israel was indirectly participating. Israel has even turned over documents to the United Nations committee. Some Israelis have flown to Geneva to testify about how Hamas rocket fire affected them.
The Schabas resignation is not enough for Israel. It wants the entire investigation scrapped and the international community to look into Hamas “and not the actions of those defending themselves from terrorists,” said the Israeli Ministry of Foreign Affairs. While the inquiry has not disclosed the scope of its investigation, the fact that Israelis testified last month does indicates that it intends to examine Hamas’s actions.
The resignation letter:
2 February 2015
HE Joachim Rücker
President, Human Rights Council
On 13 January 2015, the Jerusalem Post reported that attempts to discredit the Chair will be part of Israel’s campaign against the Commission of Inquiry on the Gaza Conflict. Two weeks later Israel made a formal complaint to the President of the Human Rights Council calling for my removal. On 2 February 2015, the Bureau of the Human Rights Council, which operates as its executive or standing committee between regular sessions, decided to examine the complaint and to request a legal opinion from United Nations Headquarters in New York.
The complaint concerns the fact that in October 2012, I prepared 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.
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.
Over the past decades I have done a huge amount of professional consulting for governments as well as for individuals and organisations. I have also published an enormous body of scholarly work, including many books, journal articles and book chapters. The legal opinion for the Palestine Liberation Organisation was a tiny part of this body of material.
When I was appointed to be Chair of the Commission of Inquiry in August 2014, I made an undertaking to act with independence and impartiality. I have fully respected that undertaking.
As a scholar engaged in international human rights, I have regularly condemned perpetrators of violations. Over the years, I have frequently criticized many of the world’s leaders, including those of permanent members of the Security Council. In addition to academic writing and lecturing, I have signed petitions and statements and contributed in other ways to advancing the advocacy of human rights.
In early August 2014, when I was asked if I would accept a nomination to the Commission of Inquiry, I was not requested to provide any details on any of my past statements and other activities concerning Palestine and Israel. Of course, my views on Israel and Palestine as well as on many other issues were well known and very public. My curriculum vitae was readily available indicating public lectures and writings on the subject. My opinions were frequently aired on my blog. This work in defence of human rights appears to have made me a huge target for malicious attacks which, if Israel’s complaint is to be taken at face value, will only intensify in the weeks to come.
The Commission of Inquiry is at a decisive stage in its work. It has largely completed the task of gathering material and listening to victims and other witnesses, including experts. The work on the drafting of the report is beginning. 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. Normally, a judicial or quasi-judicial body would resolve such a challenge before proceeding further. Yet the Commission cannot delay its work as it must produce its report in a matter of weeks. Under the circumstances, and with great regret, I believe the important work of the Commission is best served if I resign with immediate effect.
William Schabas OC MRIA
c.c. HE High Commissioner for Human Rights