The Schabas Commission without Schabas

Schabas’s hostility toward Israel was well known, but this did not stop the United Nations Human Rights Council from nominating Schabas to this delicate mission.

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February 6, 2015 07:13
William Schabas

William Schabas . (photo credit: screenshot)

 
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The exclamations of joy following the resignation of William Schabas from the United Nations Fact-Finding Commission to investigate alleged violations of international human rights law and international humanitarian law in the context of the military operations conducted since June 13, 2014, during the Israel-Gaza conflict, which he headed are both premature and exaggerated. On the face of it, Schabas’s resignation constitutes an Israeli victory. This is so since Schabas reasoned his resignation in view of Israel’s allegations of his bias.

On the face of it, Schabas’s act is praiseworthy as he seemed to have followed the biblical commandment to be “guiltless before the Lord, and before Israel.” His resignation, however, brings to the fore the question, why did Schabas accept the nomination in the first place. The answer is clear – he accepted the nomination for the same reason that United Nations Human Rights Council offered it to him.

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Schabas’s expertise in international law and specifically in the area of international criminal and human rights law is unquestionable. There is, however, no lack of experts in this field who are not stained with bias against a party whose case they are going to decide.

Schabas’s hostility toward Israel was well known even before the commission started its mission, indeed before the letters of nomination of its members were signed. This did not stop the United Nations Human Rights Council from nominating Schabas to this delicate mission and did not stop Schabas from accepting the nomination.

One must not be surprised at this nomination. The bias of the council against Israel is evident from the very resolution that established it. It called for “an independent, international commission of inquiry to investigate 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, and to report to the Council at its twenty-eighth session in March 2015.”

Schabas’s history is packed with hostile remarks against Israel and against its leaders. He participated in the Russell Tribunal, a citizens’ group of legal experts and activists that works to hold Israel accountable for violations of international law. In his speech at the tribunal, Schabas said that it is his “profound belief, [that] the international law can be used to demonstrate and underscore the violations committed by the State of Israel, and moreover can be used to hold accountable individuals who have perpetrated international crimes against the people of Palestine.” Asked about tools for prosecuting Israel, Schabas said: “I would have been inclined to talk about crimes against humanity, war crimes, and the crime of aggression, all of which I think can be shown have been perpetrated at various times during the history of the State of Israel. These are all crimes that have become increasingly robust in their definition in recent decades and for which we now have international institutions capable of prosecuting the crimes... With a bit of luck and by twisting things and maneuvering we can get them before the courts.”

When talking about Western leaders that should be placed before the International Criminal Court, Schabas said: “My favorite would be [Prime Minister Benjamin] Netanyahu in the dock.” He regarded Netanyahu as “the single individual most likely to threaten the survival of Israel.”



To Schabas’s credit we must note, however, that he did not discriminate between Israeli leaders. He called likewise for trying president Shimon Peres in the International Criminal Court. In his own words: “Why are we going after the president of Sudan for Darfur and not the president of Israel for Gaza?” On the other hand Schabas was most sympathetic with Iran and with its leader Mahmoud Ahmadinejad.

In a 2009 blog post, following the second Durban conference, Schabas wrote about the failure of the UN to hold a mature, thoughtful and productive conference on racial discrimination that “those who deserve the blame are Israel and its friends, who have manipulated the truth about the nature of the work of the United Nations by gross exaggeration of the role and intervention of certain fanatics,... and provocative politicians like Mohamed [sic] Ahmadinejad, who in desperation make absurd statements that probably deserve to be ignored rather than exaggerated.”

Schabas co-sponsored a “Center for Human Rights and Cultural Diversity” conference in Iran where he was keynote speaker. The center, which accuses Israel of apartheid policies, had strong ties to the Iranian regime and with its president Mahmoud Ahmadinejad.

He moreover did not regard Ahmadinejad’s crusade to wipe of Israel as advocating genocide but as rather expressing “political views.” In regard to the Iranian nuclear program, Schabas even wrote that Iran “very arguably has a claim to require nuclear weapons for defensive purposes.”

Schabas’s attitude toward Israel is sharpened by the way he looks at Hamas. “If we look at the poor people of Gaza,” he wrote, “all they want is a state – and they get punished for insisting upon this, and for supporting a political party in their own determination and their own assessment that seems to be representing that aspiration.” No wonder he refused to regard Hamas as a terrorist organization. He said it would be improper for him to make such remark, as “we must open a new page and try this issue in the most neutral and objective manner.”

All this did not stop Schabas from accepting the nomination, rejecting the UN Watch NGO’s demand to disqualify himself. In its statement UN Watch wrote: “Under international law, William Schabas is obliged to recuse himself because his repeated calls to indict Israeli leaders obviously gives rise to actual bias or the appearance thereof.” As clarified by its director Hillel Neuer, “You can’t spend several years calling for the prosecution of someone, and then suddenly act as his judge... It’s absurd and a violation of the minimal rules of due process applicable to UN fact-finding missions.”

In an interview in an Arab paper – where else? – Schabas pointed out that the demands that he quit from the commission come only from Israel and from the Israeli media. He stated, moreover, that he does not hate Israel and that he “will put his prior positions aside.” One may wonder how this could be possible.

Even a superman – Schabas himself prefers the word “Spider-Man” – cannot “put his prior positions aside” and hand down an evenhanded verdict.

The way Schabas handled the commission’s investigation substantiated Israel’s concerns. In an obvious attempt to prevent Israelis from testifying before it, Schabas made clear that the invitation to “individuals, groups and organizations to submit information and documentation related to its mandate” is being communicated to the media in English and Arabic only and did not appear in Israeli media. This in spite of the fact that the commission was instructed “to hold hearings and meet with witnesses and victims, as well as gather information from a wide variety of sources.”

So what made him step down at this stage “immediately?” Schabas explained that he was resigning in view of Israel’s accusations against him. Yet these accusations were made from the moment the commission was nominated. What happened was that Israel was successful in revealing that Schabas concealed the fact that he wrote a paid opinion for the PLO that together with Hamas composes the “experts’ government” of the Palestinian Authority. This finding was too much even for the Human Rights Council, and its president decided to seek legal advice about his position from UN headquarters.

All this led to Schabas’s resignation, although he did not regard even this fact as relevant, since “My views on Israel and Palestine, and on other subjects, are well-known and very public.” He did resign, however, since he found it “difficult for the work to continue while a procedure is under way to consider whether the chair of the commission should be removed.”

Yet before celebrating Schabas’s resignation we must pay attention to an addendum to his letter of resignation.

Schabas decided to resign “in order to prevent Israel’s accusations against him from distracting attention from the writing of the report and publication of its findings.”

This “innocent” remark must put Israel on guard. Not only did the Schabas Commission encourage the flow of selective evidence, the deadline for submission passed days before Schabas’s resignation. He emphasized that the commission had largely finished gathering evidence and had begun writing the report and he did not want the issue to overshadow the work of the inquiry that “is at a decisive stage.”

Anyone familiar with work of legal commissions, indeed of any legal panel, knows that the resignation of the chairman at this stage will hardly have any bearing on the report. The panel members consult with each other all along the deliberations, and certainly so at the stage when the commission is in the midst of writing its report. We also know that the chairman – although regarded as first among equals – plays a significant role in shaping the findings. Now that the bias of Schabas against Israel became evident even to the UN Human Rights Council, Israel must insist that the commission be dissolved, or we may get the Schabas Report though not signed by Schabas.

Prof. Asher Maoz is dean of the Peres Academic Center Law School.

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