.
2/6/15, "Scandal Rocks the U.N.," NRO, Anne Bayefsky. "A report on human-rights violations has been compromised not once but twice."
"Four days ago, on February 2, the head of a U.N. commission of inquiry
created to investigate war crimes in Gaza was forced to resign, after it
was revealed that he had taken money from the PLO for providing legal
advice. William Schabas’s U.N. job was to expose war criminals and
recommend how to hold them “accountable.” William Schabas’s PLO job was
to show them how to use the International Criminal Court (ICC) to hold
Israeli war criminals accountable. He didn’t think there was a problem.
His
conflict of interest did not surface, however, until after the inquiry
he was heading had “largely completed” its evidence-gathering, and the
writing of the requisite report had begun, according to Schabas himself.
But instead of taking the only legitimate route and setting aside the
whole tainted exercise, the president of the U.N. Human Rights Council,
Joachim Rücker of Germany, claimed he was “preserving the integrity” of
the inquiry simply by accepting Schabas’s resignation.
The council — the U.N.’s top human-rights body — had voted to create the
Schabas inquiry in the middle of the Gaza War last July. Palestinians
garnered support from council members and human-rights authorities like
China, Russia, Saudi Arabia, and the United Arab Emirates. The United
States and the members of the European Union either voted against or
abstained. A majority of the states that have seats on the council are
not “fully free” (on the Freedom House scale).
The idea of the
inquiry was to open a second front in the war, conducted by
international lawyers, to tie the hands of Israeli decision-makers —
political and military — behind their backs.
Hence, the Schabas
inquiry’s mandate was to examine human-rights violations “in the
occupied Palestinian territory,” not “in Israel.” The date cited for the
beginning of the inquiry was June 13, 2014, because Palestinian
terrorists had kidnapped (and later murdered) three Israeli teenagers
the day before — and Israeli aggression was a given of the
investigation. The mandate never mentioned “Hamas” or its terror
tunnels, almost half of which opened into Israel.
With the terms
of the “inquiry” set to ensure the desired outcome, Schabas and two
others became the council’s tools. They were selected by President
Rücker “in consultation” with the Palestinians in the belief that they
could be counted upon to deliver a guilty verdict.
Little wonder,
then, that Schabas was miffed about the council’s newfound concern over
his past activities. He had earlier had plenty to say in public about
the subject matter covered by his new position. In 2012, on camera, he
lectured about “crimes against humanity, war crimes, and the crime of
aggression, all of which I think it can be shown have been perpetrated
at various times during the history of the State of Israel. . . . The
International Criminal Court is in a position to exercise jurisdiction
over crimes committed on the territory of Palestine . . . So much of my
effort these times is addressed to try to get . . . the Court . . . to
take up this burning, important issue. . . . With a bit of luck and by
twisting things and maneuvering, we can get them before the courts.”
This
was just the kind of lawyer who the U.N. Human Rights Council would
think satisfied its rule requiring the “independence, impartiality,
personal integrity, and objectivity” of all its “mandate-holders.”
The
council could even be sure Schabas would go after Israel’s prime
minister personally. Said Schabas on camera before he was hired: “My
favorite would be Netanyahu in the dock at the International Criminal
Court.”
His manifest bias, thought Schabas, should have saved him
from his not-so-manifest conflict of interest. So he decided not to go
quietly, even if it meant taking the council down with him. In his
letter of resignation he divulged: “[W]hen I was asked if I would accept
nomination to the Commission of Inquiry, I was not requested to provide
any details of my past statements and other activities concerning
Palestine and Israel.” He assumed that because his “views on Israel and
Palestine . . . were well known,” the council was getting exactly what
it wanted. And so was he.
What finally clued Schabas in to the
fact that the jig was up? Shortly before he resigned, the council tried
to save face all around by pretending “this matter” was so very
complicated that it required an opinion from the U.N.’s legal office.
With
Schabas gone, the legal opinion on the meaning of impartiality has been
shelved — though it is a lesson the council evidently still needs.
President Rücker moved the deck chairs around, appointing one of the two
remaining members of the inquiry, the American Mary McGowan Davis, as
chair, and fancies it is now business as usual.
The February 3 letter from Rücker to Schabas accepting his
resignation thanks him for his “work over the past six months,” says
that the “appearance” of a problem has now been solved, and says that
Rücker is “looking forward” to the report, due out in March. Six months
preparing the report, a month to go before publication, and the U.N.
imagines all appearances of impropriety and contamination have vanished
into thin air.
Rücker told McGowan Davis: “I am convinced that you
will . . . uphold the highest standards of integrity, particularly the
principles of independence, impartiality and objectivity.”
Seriously? Unlike Schabas, McGowan Davis previously worked for the same
U.N. employer on the same subject! In 2010 and 2011 she was a member of a
Human Rights Council committee responsible for promoting the
implementation of the council’s infamous Goldstone Report on the 2008–09
Gaza War. She chaired this follow-up committee in the last months of
its work. The Goldstone Report’s central lie was its claim that Israel
set out to kill Palestinian civilians deliberately.
After Goldstone
himself retracted the slander, McGowan Davis told the Jerusalem Post his statement “does not have any impact” and she would continue “to take his report as a given.”
At
that time, McGowan Davis had the specific task of assessing whether
Israel had adequately responded to the Goldstone Report’s defamatory
accusations — and lo and behold, in her own report she found Israel’s
response wanting. Apparently her assessment of Israeli “proceedings” in
one Gaza war between Israel and rocket-launching Palestinian terrorists
leaves her “impartial” and “objective” about Israel’s “accountability
measures” in the subsequent Gaza war between Israel and rocket-launching
Palestinian terrorists. Her 2011 finding that Israel did not conform to
the “international standards” required to avoid the dominion of the
International Criminal Court mirrors precisely the end game of her
current job.
Furthermore, throughout her work for the U.N. Human
Rights Council, McGowan Davis has been a member of the board of
directors of the American Association of the International Commission of
Jurists, which according to its website is “an affiliated organization
of the ICJ in Geneva.” The ICJ participated in the July council session
that adopted the resolution creating the 2014 Gaza inquiry.
Prior to the
vote and only two weeks into the war, this group of lawyers made a
statement to the council, judging Israel guilty of war crimes and making
a specific suggestion: “[T]he ICJ calls on this Council to establish a
commission of inquiry to investigate all breaches of international
humanitarian law and gross violations of human rights committed during
the Israeli military operations in Gaza.”
Not only did the council
adopt the ICJ’s recommendation, it appointed a member of the board of
directors of the ICJ’s American affiliate to do the job — Mary McGowan
Davis.
Three days ago, she accepted Schabas’s chair with alacrity
and promised “a report that meets the highest standards of independence
and impartiality.”
In what universe?
There is a reason why
the council — along with its Palestinian partners, who are working
furiously behind the scenes to salvage the fiasco — is so desperate to
plow ahead. We now know that Schabas provided the Palestinians with
legal advice about how to move forward with the prosecution of Israelis
before the ICC, a step that they subsequently took. There is no doubt
that the Schabas/McGowan Davis report will immediately be sent to the
ICC prosecutor to assist in deciding whether a “preliminary examination”
already underway should become a full-fledged “investigation.”
The
report’s lack of credibility has put the credibility of the ICC in
question.
Setting aside all the legal verbiage, the politics are
painfully clear. Criminalizing Israel’s efforts to exercise its right of
self-defense against a foe openly committed to genocide strikes at the
heart of the sovereignty, well-being, and legitimacy of the Jewish
state. Demonizing a democratic society that is ready, willing, and able
to ensure the accountability of its armed forces is not about protecting
Palestinians. It is about endangering Israelis.
Human-rights law
is being perverted for anti-human-rights ends, and it is about time
human-rights lawyers— and all those who care about defeating the
enemies of rights and freedoms — stood up and objected."
"— Anne Bayefsky is director of the Touro College Institute on Human Rights and the Holocaust. Follow her @AnneBayefsky." via Levin twitter
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