The Case Against William Schabas
The Jewish Week
Powerful new evidence has surfaced mandating disqualification of Professor William Schabas as the chair of the UN commission investigating alleged Israeli war crimes during the recent Gaza conflict.
In a written petition to have Schabas recused filed on Sept. 4, UN Watch, a Geneva-based NGO, showcased a July 17 BBC interview in which Schabas presumed Israel guilty. Although at the time of that interview there had been no ground offensive, Schabas declared “prima facie there is evidence of disproportionality” by Israel sufficient to declare the air strikes unjustified because “there are a huge number of civilian casualties on one side and virtually no civilian casualties on the other.” The BBC interview is damning evidence sufficiently questioning Schabas’ impartiality under a longstanding due process principle that judges or investigators “should be, and should be seen to be, free of commitment to a preconceived outcome.”
Also on Sept. 4, Schabas championed his commission’s adjudicatory relevance in a CNN interview, stating: “the International Criminal Court is sitting in the wings,” and the commission will likely “provide materials that would go to the prosecutor of the ICC and so that’s a pretty big stick if we come to the conclusion that there were war crimes.” The Palestinians recently disclosed plans to join the ICC, which might be considered encouraging news to Schabas, who has repeatedly promoted prosecuting Palestinian claims against Israel at the ICC. Schabas’ admission to CNN that his commission aims to assist any ICC prosecution lends greater significance to a 2012 address he delivered to the Russell Tribunal, a London-based pro-Palestinian NGO that even Judge Richard Goldstone [the author of a controversial UN report on Israeli actions during the last Gaza war] discredited as “one sided.” Schabas quipped in that speech: “My favorite would be [Israeli Prime Minister Benjamin] Netanyahu within the dock of the International Criminal Court.”
The BBC and CNN interviews confirm that Schabas should be disqualified either for actual bias or the appearance of bias. As UN Watch argues, the BBC interview demonstrates “commitment to a preconceived outcome” of “Israeli guilt for war crimes” that “constitutes an overt case of actual bias on the very question that the [UN commission] members are meant to impartially assess.” These circumstances distinguish Schabas’ case from that of Nabil Elaraby, current head of the Arab League, who was part of the 2004 judicial panel at the International Court of Justice (ICJ) that issued an advisory opinion on “Legal Consequences of the Construction of a Wall in the Occupied Territory.” The ICJ refused to disqualify Elaraby notwithstanding anti-Israel sentiments he expressed in a newspaper interview prior to joining the Court. The ICJ reasoned that Elaraby “expressed no opinion on the question put in the present case” during that interview. In stark contrast, Schabas’ opinion of prima facie guilt by Israel relates directly to the very issues and events his commission is supposed to assess.
http://www.thejewishweek.com/editorial-opinion/opinion/case-against-william-schabas
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