The UN Commission of Inquiry on the Gaza Conflict: A clear violation of all accepted international rules and norms governing fact-finding missions
By Amb. Alan Baker
The recent resignation of Canadian Prof. William Schabas as Chair of the UN Gaza inquiry has raised some interesting issues in the general context of UN fact-finding procedures. Shabas' glaring anti-Israel bias was demonstrated in statements made by him over the years and now confirmed by the revelation of the clear conflict of interest arising from his consultancy work for the PLO and concealed by him from the UN and from its Human Rights Council.
The UN fact finding procedures have developed over the years through a number of declarations and studies by prominent international organizations and legal authorities, and ostensibly should have guided the UN in determining the mandate for any such commission of inquiry and in choosing the Chair of any fact-finding mission or inquiry.
However, it appears that the UN knowingly chose to ignore these well-established procedures in appointing William Schabas to chair the Gaza inquiry, and as such, the UN itself, in addition to William Schabas, have prejudiced any findings and outcome of the Commission of Inquiry and created grave doubts as to any credibility of such findings or outcome.
The following documents set out the various rules and norms for fact finding commissions, each one stressing the importance and centrality of impartiality – both of the mandate, as well as by the head and members of the commission:
Article 1. (Terms of Reference) "The organ of an organization establishing a fact finding mission should set forth objective terms of reference which do not prejudge the issues to be investigated. These terms should accord with the instrument establishing the organization."
Article 2. "The resolution authorizing the mission should not prejudge the mission's work and findings."
Article 4. (Selection of Fact finders) "The fact finding mission should be composed of persons who are respected for their integrity, impartiality, competence and objectivity and who are serving in their personal capacities"
Article 7. "The chairman and the rapporteur of the fact finding mission should not be replaced during the term of the mission except for reasons of incapacity or gross misbehavior."
"Fact-finding should be comprehensive, objective, impartial and timely" (Paragraph 3). "Fact-finding missions have an obligation to …… perform their task in an impartial way." (Paragraph 25) "Their members have an obligation not to seek or receive instructions from any Government or from any authority other than the competent United Nations organ."(Paragraph 25)
"5. The terms of reference must not reflect any predetermined conclusions about the situation under investigation.
8. The mission's delegation should comprise individuals who are and are seen to be unbiased.
10. The NGO should ensure that all members of the delegation are aware that they must, at all times, act in an independent, unbiased, objective, lawful and ethical manner.
23. The NGO should ensure that the members of the delegation understand the need to be unbiased and not pre-judge any issues during the mission. The NGO must also ensure that the delegation understands the need to act in an ethical manner and in accordance with the laws of the country and internationally accepted human rights standards.
30. The members of the delegation must conduct themselves with integrity, professionalism and in accordance with international human rights law standards at all times during the mission.
32. If it transpires during the course of the mission that there is a conflict of interest or other circumstances involving any member of the delegation which might jeopardize their independence and impartiality, or which might give the appearance that their independence and integrity is compromised, the leader of the delegation should inform the NGO and that member should desist from participating in a particular meeting, or where necessary from the remainder of the mission. If the team leader is implicated, or is otherwise unavailable, any other members of the delegation may draw the matter to the attention of the NGO."
In light of these documents which clearly set out the requisite norms and procedures for inquiry and fact finding commissions, it is patently clear that the UN and its Human Rights Council acted in violation of the above guidelines in sanctioning the establishment of the UN Gaza Inquiry, and all the more so in appointing William Schabas as its Chair.
Taking into account this blatant and knowing violation of UN standards for impartiality, by Prof. Schabas as well as by the UN itself, all work done by this commission and under his chairmanship and guidance is flawed and suspect.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs and as Israel's ambassador to Canada.