The fatal flaws of the Schabas Inquiry

William Schabas has already pronounced Israel presumptively guilty on the very matter he is now charged with investigating.

William Schabas  (photo credit: screenshot)
William Schabas
(photo credit: screenshot)
The International Commission of Inquiry established by a Special Session of the UN Human Rights Council – named the “Schabas Inquiry” after its appointed chairman, Prof. William Schabas – is not only “tainted at the core,” words that recall my criticism of the Commission’s predecessor, the Goldstone Inquiry, but this inquiry suffers from a pernicious tripartite bias.
Firstly, the resolution giving birth to the inquiry presupposes Israeli guilt, condemning “in the strongest possible terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations in the occupied Palestinian territory.” Thus the empowering resolution displays an Alice-in-Wonderland violation of judicial logic because the conviction is pronounced before the inquiry begins.
Secondly, and astonishingly, the biased commission mandate not only presupposes Israeli criminality – referenced 18 times in the resolution – but makes no reference at all to Hamas’s spectrum of war crimes and crimes against humanity, let alone its ongoing terrorist war of attrition during which it has launched 10,000 rockets targeting Israeli civilians since 2007, the proximate cause of the latest iteration of the conflict.
Third, and astonishingly again, the resolution refers to Israeli perpetration of “hate crimes,” but makes no reference to the Hamas Charter, which calls for the destruction of Israel and the killing of Jews wherever they may be – the toxic convergence of the advocacy of the most horrific of crimes, namely genocide, embedded in the oldest and most enduring of hatreds, namely anti-Semitism – and the perpetration of terrorist acts in furtherance of this genocidal antisemitism, which is the root cause of the conflict as a whole.
Moreover, the UN Human Rights Council – which gave birth to the inquiry and to which the inquiry will subsequently report – itself partakes of a longstanding, systemic and known juridical bias against Israel, in violation of the UN’s express mandate of “equality of all nations, large and small,” in the following ways, among others:
• 40 percent of its Special Sessions – including the one establishing the Schabas Inquiry – have been condemnatory of Israel, while the world’s major human rights violators have enjoyed exculpatory immunity;
• Every session of the UN Human Rights Council – as I witnessed when I appeared before it – features a standing agenda item targeting “Israeli violations of human rights in the Occupied Palestinian Territories.” This is an utter denial of international due process, as one country – in this instance, Israel – is singled out for differential and discriminatory indictment;
• The mandate of the special UN rapporteur on the Middle East – also a creature of the council – is to inquire into Israel’s actions alone, which are presumed to be in violation of international law; and
• There is ongoing, widespread and systematic condemnation of Israel in the deliberations of the council, a discourse which preceded the resolution establishing the Schabas Inquiry.
It is therefore not surprising that the EU characterized the UN Human Rights Council’s mandate as “inaccurate, unbalanced and prejudging the outcome.”
Accordingly, when I was asked in 2006 by the then-UN high commissioner for human rights to be part of a Commission of inquiry into the tragic deaths of 18 Palestinians killed by an errant Israeli strike, I refused to do so, as the resolution establishing the inquiry spoke of the “Israeli willful killing of Palestinian civilians,” again presupposing Israeli guilt, while its terms of reference deliberately ignored the Palestinian rocket attacks on the Israeli city of Sderot that had preceded Israel’s response.
Enter Prof. William Schabas, a distinguished international law professor – not unlike Richard Goldstone – who should recuse himself for the same reasons that I suggested to justice Goldstone when he was first appointed, namely: that the commission is the creature of a fatally flawed resolution; that its biased mandate presupposes Israeli guilt; and that the systemic and systematic bias of the UN Human Rights Council is in gross violation of the UN Charter due process guarantee of “equal treatment of all nations, large or small.”
In a recent Canadian interview, Prof. Schabas said, “I’m not acting on the basis of the resolution, I’m only acting on the basis of the mandate in Paragraph 13.” But he ignores the basic principles of statutory interpretation – as affirmed by the Supreme Court of Canada – which preclude the isolation of one paragraph from the resolution as a whole, or the confinement of the interpretation of the resolution to this paragraph alone.
Above and beyond these considerations, the commission of inquiry is tainted by Professor Schabas’s past conduct and prejudicial pronouncements, including:
• In October 2012, Schabas openly declared that his “favorite person to bring to the International Criminal Court would be Israeli Prime Minister Benjamin Netanyahu” for supposed Israeli criminality during the January 2009 Gaza conflict. Apart from presupposing Netanyahu’s criminality, Schabas got his basic facts wrong: In 2009, Ehud Olmert was the prime minister, not Netanyahu, who was then leader of the opposition;
• In an incredible 2009 statement, Schabas expressed surprise that the president of Sudan would be prosecuted before the ICC – where he was indicted for war crimes, crimes against humanity, and genocide in Darfur – but not president Shimon Peres;
• Schabas has accused Israel of war crimes, crimes against humanity, and aggression committed “on the territory of Palestine since 2002,” while acknowledging that “much of [my] effort” is focused on bringing about the prosecution of Israelis at the ICC. This alone is grounds for recusal
• Schabas has made frequent statements of support for the Goldstone Report, which even its author, Justice Richard Goldstone, has discredited and disavowed;
• In a 2009 blog post, Schabas urged the international community to “ignore” Iranian president Mahmoud Ahmadinejad’s incendiary incitement, sanitizing Ahmadinejad as nothing more than a “provocative politician,” and ignoring his massive domestic repression, state-sponsorship of international terrorism, and incitement to hate and genocide.
Schabas also wrote in 2012 that Iran “very arguably has a claim to require [nuclear weapons] for defensive purposes”;
• Schabas has similarly sanitized the actions of Hamas, saying: “If we look at the poor people of Gaza...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”; and
• In July, Schabas told the BBC that, “prima facie, there is evidence of disproportionality in the response that Israel is undertaking in order to protect itself.”
He has thus already pronounced Israel presumptively guilty on the very matter he is now charged with investigating.
Indeed, earlier this year, the UN Human Rights Council recognized Schabas’s bias or appearance thereof when it rejected his application for the post of special rapporteur for the Palestinian territories. The UNHRC required the successful candidate “to objectively engage the key interested parties having not previously taken public positions on issues relevant to the mandate.”
Since being named to chair the Commission of Inquiry, Schabas has insisted that he will set aside his personal views and perform his duties with impartiality. Yet, as McGill University law professor Frédéric Mégret has written with respect to UN fact-finders, “a declaration that one is impartial... will not suffice to dispel an appearance that one is already committed to an outcome.”
Simply put, Schabas’s appointment to an already fatally flawed commission raises, at a minimum, a reasonable apprehension of bias, if not actual bias, and is a standing violation of the elementary principles of due process applicable to UN fact-finding missions.
Basic integrity requires that he recuse himself, if he is not removed.
Irwin Cotler is a member of the Canadian Parliament, emeritus professor of law at McGill University, and a former minister of justice and attorney-general of Canada.