Right of Reply: False accusations in the mirror

HRW's Ken Roth misses point of Goldstone Mission's critique altogether.

By
January 17, 2010 17:19
UN investigator Richard Goldstone arrives for a me

UN investigator Richard Goldstone arrives for a meeting at the Hamas Health Ministry, in Gaza City.. (photo credit: AP)



This piece was submitted before the Goldstone Report was released on Tuesday afternoon.

Human Rights Watch's Ken Roth.

Human Rights Watch's Ken Roth.
Photo: AP [file]



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Ken Roth's article "Don't smear the messenger" (August 26) - responding to my critique of the Goldstone mission under the authority of the UN Human Rights Council - reminds me of what is termed the "false accusation in the mirror," where you accuse the "other" of what you yourself are doing. On the eve of the Goldstone report's release, Roth's false misrepresentations and ad hominem diatribes warrant a response.



Simply put, Roth falsely accuses me of "smearing Goldstone," though in my article I expressly stated that "if one wanted to have a distinguished person to head up an inquiry into the events of the Gaza war, Richard Goldstone would be a natural candidate... he brings to the table a special expertise and experience on matters at the intersection of international human rights law and international humanitarian law."



My critique was of the tainted [this is an understatement] authority of the UN Human Rights Council under which the mission was established; the flawed, one-sided mandate - also an understatement; the prejudicial presence of one of the members of the commission, who had already pronounced herself on the merits of the issue thereby giving rise to a reasonable apprehension of bias in the work of the commission; and the damage done to the integrity of the UN and the authority of international law, the whole of which underpins the Goldstone mission.



ROTH SEEKS to justify his defense of Goldstone - who deserves a better defense than this - by yet another false accusation, namely that I am "part of an intense campaign by the Israeli government and some of its uncritical supporters to smear the messenger and change the subject." Never mind that I have appeared in Israeli courts and made representations to the Israeli government on subjects ranging from the protection of Palestinian refugees to the status of Ethiopian Jews; never mind that I served as international legal counsel to the Palestinian Human Rights Monitoring Group - until I became minister of justice and attorney-general of Canada - on issues regarding human rights violations in the occupied territories and in Israel; or that I have visited Israel and Gaza more than Ken Roth has, including meeting with Palestinian government leaders and leaders of Palestinian civil society in Ramallah this past August. These are simply "inconvenient truths" that might undermine Roth's false ad hominem diatribe, which permeates his piece.



But even if his smear were true - that I am an uncritical supporter of Israel - it is beside the point. My critique of the Goldstone mission was based on the fact that it was established under the enabling authority of the UN Human Rights Council, which has systematically singled-out one member state in the international community (call it X, since for Roth accusations of war crimes against Israel seem to be a right of passage necessary to engage in international human rights discourse) while the major human rights violators have enjoyed exculpatory immunity. And it was advanced as a critique of the denial of international due process to a member state, and as an expression of concern with the work of the UN Human Rights Council and the integrity of UN missions under its authority.

UN investigator Richard...

UN investigator Richard Goldstone arrives for a meeting at the Hamas Health Ministry, in Gaza City.
Photo: AP [file]






AS IT happens, Roth's article was published - and brought to my attention - on the very day that I was engaged in a symposium in South Africa involving, inter alia, the danger of "stereotyping" as a means of diverting attention away from the actual issue at hand - in this case, the integrity of UN missions - while presupposing the outcome of an investigative inquiry. Yet once Roth labels me as an uncritical supporter of Israel - in the same article wherein he indicts Israel - this false stereotype of me itself constitutes a per se indictment; no further joinder of issue is necessary on his part, the conviction has already been secured.



Again, ironically, though I will give Roth the benefit of ignorance and not malice here, he ignores critical comments I have made regarding the Israeli operation in Gaza. This is not about Israeli violations, it is about the integrity of the inquiry respecting such violations.



Roth ignores that I write as a Canadian for whom the UN is an organizing idiom of Canadian foreign policy; for whom international law is part of my Canadian DNA as well as my DNA as a law professor; for whom human rights has been my country's - and my own - clarion call. That is what concerns me so much about the Goldstone mission, and it is this very concern which Roth chooses to ignore or misrepresent.



Simply put, this flawed mission is not only established under the authority of the obsessively discriminatory UN Human Rights Council, it is irredeemably tainted by the prejudicial resolution establishing the mission itself. Roth should read - or reread - the resolution; it is a star-chamber indictment. It is precisely Goldstone's participation and distinction that is used to sanitize the resolution, which Goldstone acknowledged was one-sided, though he believed he had a more even-handed mandate given to him by the president of the UN Human Rights Council.



Roth claims that the original mandate is "irrelevant" and "has been superseded." But the essential point here is that this UN resolution is still the authorizing authority; it remains the chief imprimatur and has not been superseded or altered by the council, even though the council had the opportunity to do so yet remained silent; and it is still this UN Human Rights Council to which the Goldstone mission must report and to which it remains accountable. That is why - and Roth chooses to ignore this as well - I refused a similar UN mandate, not only because such a mandate was inherently discriminatory but precisely because I cared about the UN and its mandates, and did not want to partake in such an Alice in Wonderland inquiry.





The inconvenient truths don't end there. Roth's article makes no mention of the fact that the appointment of Prof. Christine Chinkin has already compromised the commission. Indeed, since I wrote my piece, 19 British lawyers and academics have penned an open letter calling upon Chinkin to disqualify herself as her expression "on the merits of the issue... prior to seeing any of the evidence... give rise to a reasonable apprehension of bias..."; and saying that her continued participation necessarily compromises the independence of the inquiry and its report.
But none of this seems to make any difference to Roth, for whom, as his article puts it, "the problem is the conduct of the Israeli military." When this becomes the issue - and not the tainted mission - it is then no stretch on his part to engage in ad hominem attacks accusing me of seeking to "deflect criticism of the serious abuses committed by Israel."In a word, Roth writes not like a lawyer - let alone a human rights lawyer - but as a propagandist. There is an old adage that if you are weak on the facts, argue the law; if you are weak on the law, argue the facts; if you are weak on both, smear. At the end of the day it is what Roth's article was all about.



The writer is the former minister of justice and attorney-general of Canada. He is a member of Canadian Parliament, special counsel on human rights and international justice to the Liberal Party, and a law professor (on leave) at McGill University.




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