Q&A William Schabas: No evidence I’m biased against Israel

William Schabas

William Schabas, the Canadian international law professor, resigned last week as head of a UN panel investigating possible war crimes during last summer’s Gaza conflict.

Schabas, 64, stepped down Feb. 2 after Israel provided evidence to the UN Human Rights Council in Geneva that he had authored a seven-page legal opinion on behalf of the PLO for which he was paid. Israel contended the contract with the PLO was a serious conflict of interest in the investigation. Schabas responded that he had acted with full “independence and impartiality” as head of the inquiry, but was resigning to prevent distractions from the panel’s findings, scheduled to be published next month.

Schabas was replaced by commission member Mary McGowan Davis.

Following his appointment last August, Israeli officials and Jewish groups accused Schabas of anti-Israel bias. Schabas has accused Israel in the past of war crimes, and in 2011, he said Prime Minister Benjamin Netanyahu “should be in the dock of an international court.”

Israel refused to co-operate with the investigation, though some Israelis did testify before the committee members.

In response to Schabas’ resignation, Netanyahu urged the UN to shelve the report. Schabas responded to Netanyahu and similar statements from Foreign Minister Avigdor Liberman, calling them “masters of extravagant and ridiculous statements.”

Schabas spoke to The CJN last week via email from London, England, where he teaches at the University of Middlesex.

Why did you resign at this time? I understand it is connected to your work for the PLO, which created a conflict of interest. Why did you not disclose that at the time you applied for the position?

I did not apply for the job. I was approached by the UN to do it. There was no question of disclosure of previous activities, because my record was well-known within the UN as well as by the states that were consulted on my appointment, including Israel. Earlier in the year, when I was being considered as a candidate for special rapporteur on the occupied territories, Israel was quite active in its opposition to me. Israel knew all about my past and my activities. The record is public. And Israel has a rather effective intelligence service, too.

In retrospect, do you believe it was a mistake not to do so, or do you take the position that a lawyer doing work for a client should not disqualify him from this post?

My work for the PLO consisted of being sent five questions by email and providing a written response. I was given no documents by the PLO. I have had no relationship with it either before or after this brief request for an opinion in October 2012. I was not involved in advocacy or in campaigning for the PLO. I merely gave a technical legal answer to technical legal questions. There are many, many examples of judges sitting in cases where at some point in the past they were involved in providing legal advice to one of the parties.

At the time the inquiry was established, there was quite a bit of criticism of the UNHRC for being biased and of yourself for also being biased, or at least having the appearance of bias, based on your comments on Israeli Prime Minister Benjamin Netanyahu and Israel in the past. What do you say to those criticisms?

The word “biased” gets thrown around a great deal in this discussion. Some people seem to think that it is the same thing as having an opinion that is contrary to their own. But bias refers to someone who is asked to provide an impartial judgment and who is incapable of doing this because of personal views. Someone without bias is someone who is capable of putting their personal views aside in order to reach an objective, neutral and impartial position. There is lots of evidence that, in the past, I have expressed views that do not correspond to those of the government of Israel. But I can only be accused of bias if it can be shown that I cannot detach myself from those views. Is there any evidence that I cannot? I don’t think so. I think most of those who have criticized me for “bias” really only want to have a commission composed of people with views that lean in their direction.

Since your appointment, a good number of respected experts in international law said you should resign. How did you feel when colleagues such as Irwin Cotler, Alan Dershowitz, Joseph Wieler and others said you should not head the inquiry?

I was disappointed to receive criticism from Irwin Cotler, who is an old friend for whom I have always had great respect, as well as Alan Dershowitz and Joseph Wieler, although I cannot say I was surprised. Like me, they have their own strong views on the relevant issues. When they judge me, you might ask if they are really capable of a neutral, balanced, objective and fair determination, or if their own vision is clouded by their political perspectives. Maybe they suffer from the same faults that they attribute to me.

I understand the inquiry will report in a month or two. That suggests most of its work has been done. Is that correct? And if so, doesn’t your resignation at this late stage taint its findings, whatever they may be?

The commission has made no findings yet. It finished its hearings and meetings in late January, and provided a deadline of Jan. 31 for written submissions. The work of writing the report is only beginning.

The inquiry was criticized from the start for its terms of reference, which focused on alleged war crimes, abuses, etc. in the Palestinian territories. That omitted war crimes committed by Palestinians in Israel and suggested the one-sided nature of the inquiry. Did the inquiry look into Palestinian violations of international law? In what areas?

From the very beginning, the three commissioners indicated that they were going to investigate all allegations of violations, regardless of the combatants who were thought to be responsible. For example, when they met representatives of UN Watch in September 2014 they made this very clear. There has been considerable publicity in Israel about the victims of mortar attacks in the region near the Gaza border who travelled to Geneva to meet with the commission and talk about what had happened to them. I believe they reported that they were welcomed with courtesy and that the commissioners were very interested in their accounts. This is well known in Israel. I don’t know why the question keeps arising.

Anything you wish to add?

I would like to make it clear that I do not accept the allegations made against me by Israel. A problem was created on Feb. 2 when the Human Rights Council decided to investigate the complaint by Israel against me. The process that was to start by seeking a legal opinion from UN headquarters in New York was likely to take a matter of weeks. I think that when the impartiality of a member of a tribunal is challenged, it is normal for the matter to be determined as a matter of priority. Its other work cannot continue until that issue is resolved. In my judgment, the consequence of the decision to investigate the complaint would have been a suspension of the work of the commission. 

This would probably have meant that it would not be able to present its report to the March session of the Human Rights Council. My judgment, then, was that the best way to resolve this impasse was for me to withdraw. That way, the commission can get on with its work without the disruption and distraction caused by the complaint against me. 

This interview was edited for style and clarity.