The matter of William Schabas's resignation as the Chair of the Gaza Commission of Inquiry
Following yet another Israeli incursion into Gaza in 2014, causing a large number of civilian deaths, the United Nations set up the Independent Commission of Inquiry in July 2014 to look into possible violations of international humanitarian law and international human rights law. In the days following its establishment, members of the Commission were appointed, including Justice Mary McGowan Davis, Doudou Diene, and William Schabas as the Commission’s chair. The Gaza Commission of Inquiry was expected to publish its report and findings in March 2015, but it eventually did so with a three months delay. This delay was most probably caused, at least partially, by the resignation of the Commission’s chair William Schabas in February 2015, something that I will return to shortly. In any case, on 22 June 2015 the Gaza Commission of Inquiry announced the release of its 34 pages long report and 183 pages long detailed findings with the press release indicating that “UN Gaza inquiry finds credible allegations of war crimes committed in 2014 by both Israel and Palestinian armed groups.” As announced in the press release, the Commission is due to present its report formally to the UN Human Rights Council on 29 June 2015. In the course of this week, i.e. before the formal presentation of the report to the body that requested it, we will hear comments, mostly by representatives of Israel and Palestine, reported by global media outlets that operate on the breaking news rule. We will then hear from international commentators giving us a more in-depth perspective on the report and potential future developments. The last to react will be international law experts taking their time to read, and digest, the report and findings in order not to make any hasty conclusions. Their take on the report and findings will be more theoretical and academic in nature to make sure that the partisanship tag is not attached to their writing. Having heard the cacophony of these different voices and after a sufficient time has passed, the families will then be left more or less to their own devices in trying to move on with their lives. They will mourn their dead in deafening silence and Operation Protective Edge will be yet another in the series of Israel’s military operations in Gaza. I will leave it to others to dissect the report and its implications as my focus here is rather on some developments that preceded the release of the report having to do with the former Chair of the Commission William Schabas and his resignation. As noted above, Schabas was appointed to chair the Commission, the mandate which he performed for some six months before he submitted his letter of resignation to the UN Human Rights Council President on 2 February 2015. His resignation came shortly after Israel formally accused him in its 30 January 2015 letter of “blatant conflict of interest” on account of the fact that he prepared a legal opinion for the Palestine Liberation Organization in 2012. As for the details of what happened in these three or four days between Israel’s filing of complaint and Schabas’s resignation, it should be noted that upon receiving Israel’s letter and Schabas’s response to it, the HRC President Joachim Rucker forwarded this correspondence to the five person HRC Bureau. Importantly, Schabas indicated in his letter to the HRC President that “[i]f you decide to proceed to an examination of the merits of Israel’s complaint, I would like to reserve my right to make additional submissions.” In the minutes of 2 February meeting of the HRC Bureau, it is stated among other things that “[t]he Bureau agreed with the President’s proposal to seek a legal opinion from the Legal Counsel of the United Nations on this matter. The President would share the abovementioned two letters with the Legal Counsel, seeking advice on any action to be taken by the President in light of applicable rules and procedures.” However, before the UN Headquarters in New York had a chance to look into the matter, Schabas exercised his “right to make additional submissions” and resigned with immediate effect. Now, although Schabas stated in his letter of resignation that the Commission was at the important stage of drafting its report and that “the important work of the Commission is best served” if he resigned with immediate effect, it is clear from the above that the real reason for his resignation was the HRC’s decision to examine “the merits of Israel’s complaint” against him, instead of dismissing it as unsubstantiated and yet another attempt to obstruct the Commission’s work. It is true that 30 January 2015 letter was the latest in the series of Israel's attacks on Schabas accusing him of “clear and documented bias against Israel”, with his 2013 statement that Netanyahu would be his favorite to see in the dock of the International Criminal Tribunal cited most frequently both by the media and his fellow law professors and academicians calling on him to recuse himself. So, from day one of his appointment Schabas was the target of criticism from different quarters, including the Israeli officials, orthodox rabbis and some prominent figures from the human rights' and academic community. Some of the criticism against Schabas was really hard-hitting, even to the extent of attaching to him an etiquette of being anti-Semitic. Schabas initially laughed off this criticism and even mocked the calls for him to recuse himself, but as the attacks intensified he eventually stepped down. Not so much because of the attacks, but because of what he perceived as a lack of support from those who asked for the production of the report, the UN Human Rights Council. In light of this background, it should come as no surprise that Schabas got offended and decided to call it a day when the HRC, seemingly having succumbed to the Israeli pressure, decided to entertain the complaint against him and solicit a legal opinion from the UN Headquarters. Now, it is questionable whether he had a real reason to get offended, but what is not questionable is that he put his personal dissatisfaction with the HRC’s decision ahead of the interests of the Gaza Commission of Inquiry six months into his mandate as its Chair. Going back to the calls to Schabas to disengage himself from the work of the Gaza Commission, it should be noted that in their calls, respected international jurists only had words of praise for Schabas’s scholarship and professional references. Aryeh Neier, a founding member of the Human Rights Watch, among many other things, called him “a well known and leading scholar”. Joseph Weiler carefully chose his words describing Schabas as “a distinguished and justly influential scholar in the field... and entirely honourable person of impeccable integrity.” Schabas was also praised for “his lifelong commitment to strengthening the role of international criminal law in protecting the innocent and punishing the guilty.” So, based on all of this information, one gets the impression that Schabas got chastised for being critical of Israel, for speaking his mind a bit too openly and for not getting what he considered to be a sufficient support from his home base. Now, Scahabas is no stranger to observers of the post 90’s developments in the Balkans. He wrote a book on Milosevic, commented extensively on the work of the ICTY and ICJ, including the judgments of the two courts on Srebrenica, and most recently was a member of the Serbian legal team in the proceedings in the genocide case before the ICJ involving Croatia and Serbia. Another thing that may be said of Schabas is that he has never shied away from speaking his mind, even when his view differed from that of the majority. Actually, it is closer to the truth to say that he reveled in these situations when it was him against the world. Not minding the limelight at all, he would take it upon himself to show his opponents the flaws in their reasoning. One such case is Srebrenica. Schabas is on the record of having written back in 2001: “Would someone truly bent upon the physical destruction of a group, and cold-blooded enough to murder more than 7,000 defenseless men and boys, go to the trouble of organizing transport so that women, children, and the elderly could be evacuated?” Then, in 2007, in the wake of the ICJ's decision in the genocide case brought by Bosnia against Serbia, Schabas wrote: “Certainly, the ICJ endorsed the conclusion that genocide had been perpetrated at Srebrenica. Here too, though, it followed the analysis of the ICTY, treating the massacre as an isolated and ultimately idiosyncratic event within a broader conflict whose essence was not fundamentally genocidal, a devastating and destructive attack on the Muslims of Srebrenica that was improvised at the last minute by General Mladic.” In that same 2007 article, Schabas also wrote: “... the final result [ICJ's Judgment]... was really a setback for the Bosnian victims, whose lawyers should have convinced the state to discontinue their case. They probably could have obtained useful political considerations from Belgrade in exchange, but they have now, obviously, lost that chance.” One final quote from the 2007 article: “According to recent reports, Muslim life in Srebrenica is more vital and dynamic than ever.” All these statements have essentially been made in defense of the position that the two archetypal genocides of the twentieth century were the Holocaust and the genocide against Rwandan Tutsis. Schabas is on the record of advocating for this restrictive interpretation of the Genocide convention, most recently in the 2014 proceedings before the ICJ in the genocide case involving Croatia and Serbia. In that same case, however, he described the Croatian Army’s Operation Storm that resulted in the exodus of the Krajina Serbs from Croatia in the following terms: “... most genocides are arrested before they are fully carried out... But the intentional destruction of the Krajina Serbs stands as a tragic and barbaric example of a genocide where the sinister plan to destroy an ethnic group is now virtually complete. Nothing comparable... has taken place anywhere in Europe since 1945.” In the oral proceedings Schabas also slammed the former Croatian president Tudjman for his anti-Semitism using loaded references in likening the meeting of Croatia’s political and military leadership in Brioni ahead of Operation Storm to the Wannsee conference and the Operation Storm itself to “Tuđman’s final solution of the Krajina Serb problem” aimed at creating “lebensraum for hundreds of thousands of Croats”. Where is one to start in analyzing these statements? First, it will not serve your image of an academic with intellectual integrity if for years you present yourself as a member of the conservative camp in relation to the interpretation of the Genocide Convention only to modify that position and use the genocide label more liberally when acting as an agent for the State that claimed in the formal court proceedings that the specific episode in the conflict amounted to genocide. Second, making political statements even while earnestly believing that they are expert-like statements will in some cases pay off and get you a job such as membership in the Serbian legal team in the IJC’s genocide case involving Croatia and Serbia, while in other cases it will expose you to severe criticism and will eventually cost you a job such as chairmanship of the Gaza Commission of Inquiry. Moreover, what is one to make of Schabas’s statement in 2007 that “Muslim life in Srebrenica is more vital and dynamic than ever”? In the context of 2014 Gaza conflict, imagine if someone said twelve years later in 2026 that Muslim (not Palestinian) life in Gaza is more vital and dynamic than ever. Finally, in relation to Schabas’s claim on useful political considerations that Bosnia allegedly could have obtained from Serbia, it should first be noted that the reason why Bosnia went to the ICJ in the first place was to obtain one particular useful political consideration, which was to end the war. Again, in the context of Gaza conflict and the recent accession of Palestine to the ICC, it is the same as saying down the stretch that Palestine should have never asked for investigation of potential crimes that fall under the ICC’s jurisdiction because had they not done so, they probably could have obtained useful political considerations from Tel Aviv, but alas now they have lost that chance. Finally, Schabas said in his letter of resignation that one of the reasons he did it was because he wanted the work of the commission to be done without any further derailment by the Israeli side. In view of all the above evidence of Schabas being not only legally, but also politically, outspoken, I wonder whether the UN Human Rights Council (HRC) made the right choice when it appointed him to chair the Gaza Commission of Inquiry in the first place. If there is anything to be learned from this, it is that UN bodies should exercise more caution when appointing individuals like Schabas to these commissions because the ensuing attacks tend to shift the attention away from the subject matter for which they were originally established. Moreover, individuals vane enough to give ultimatums to the human rights bodies that appointed them, which is what Schabas realistically did when he reserved his right to make additional submissions depending on which direction the HRC was going to take in response to Israel’s complaint, should not be shortlisted for the post. And preferably, they should be true champions of human rights.