The entrance of the International Criminal Court (ICC) is seen in The Hague.
(photo credit: REUTERS)
It will be correctly stated in the coming days that the resignation of William Schabas as the head of the UN Human Rights Council’s inquiry into Gaza war crimes allegations will not likely change the short-term result of a critical report against Israel.
But that is only half of the story.
In the still unlikely worst case scenario that the International Criminal Court prosecutor opens a full criminal investigation, let alone indicts Israeli soldiers or war policy- makers, Schabas’s resignation may not merely be a diplomatic victory for Israel, but could become a singular and potent legal argument to make in court to save those same Israelis.
It is likely that any ICC case will depend heavily on the evidence collected by the (until now) Schabas Commission.
Israelis may be able to claim that the evidence itself is tainted and non-credible because it was collected by a commission run by Schabas.
Schabas has resigned under a cloud of having possibly violated conflict of interest principles in having been directly employed and paid by the PLO in the past as a consultant on issues impacting war crimes allegations against Israel, such as the debate over whether Palestine is a state.
Schabas and the UNHRC have said that his resignation is not an admission that he had a conflict of interest and was biased, but merely a practical maneuver to avoid delaying the UNHRC’s report being published by the “sideshow” allegations against him.
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They have also said that his resignation came to avoid the appearance of impropriety, and probably their defenders might point out that he was paid very little for a single project.
If these arguments do not sound like simple slam-dunk winning arguments, it is because they are not.
They are certainly potentially viable defenses that Schabas was not biased, but they are far from rock solid.
Whatever the UN did or did not ask Schabas about his prior employment in terms of conflicts of interest for investigating Israel and the Palestinians in a balanced manner, that he did not think that having worked for and gotten paid by the PLO on related international law issues was a conflict of interest is at the very least bizarre.
However he and the UNHRC want to characterize his resignation, Israelis will have a very viable argument that his resignation was an admission of bias.
They will then be able to argue that such bias renders the commission’s evidence and the potential basis of the ICC’s cases tainted.
The UNHRC will be able to argue that Schabas’s resignation before the report was finished completely removes any cloud of bias from the report’s conclusions.
But Israelis would be able to counter that he resigned too late.
Had he resigned a few weeks after his August appointment, it would have been easier for the UNHRC and the ICC (in a future worst case scenario) to dismiss the bias argument.
But Schabas and the UNHRC have said that all of the evidence has already been collected, and he has run the show for five months, with a draft of the report likely to be completed in a matter of weeks and the final report due in only seven weeks.
Also, Schabas’s application specifically asked if he had any financial relationships that could be conflicts of interest, and he wrote “no,” despite his PLO relationship.
From the Israeli perspective, Schabas’s failure to resign early on and the late decision to resign could actually be the best case scenario for a legal argument of questioning the evidence in any court case.
All of this is still unlikely, as many predict that ICC Prosecutor Fatou Bensouda will think hard but eventually drop opening a full criminal investigation in light of Israel’s self-investigations of war crimes allegations.
But if the worst case materializes, Schabas has given Israel a new legal tactical weapon, in addition to those it already had, to derail any cases.
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