The right to know the truth on Gaza and Israel

It has been nearly three months since Israel launched an offensive operation in Gaza, after a series of events sparked unrest, including the kidnapping and murder of three Israeli teenagers in June and the suspected retaliatory killing of a 16-year-old Palestian boy on July 2.

For seven weeks in July and August, the violence there made daily headlines: more than an estimated 2,000 dead in Gaza, including 500 children, thousands of homes destroyed and a third of Gaza’s population displaced. Around 67 Israeli soldiers, and six Israeli civilians, were also killed. A ceasefire has remained in place since the end of August, and Egyptian-mediated talks are expected to resume in late October to negotiate conditions of a longer truce.

But while events in Gaza fall away from the media spotlight and negotiations remain on hold, the UN commission investigating possible war crimes during the summer is moving forward.   Renowned international law scholar, Canadian William Schabas, has been appointed chair of the commission, leading a team of about half a dozen staff and three commissioners in the on-the-ground investigation. Upon his appointment, Schabas, a professor of law at Middlesex University in London, author of a long list of books on human rights and legal issues, and Officer of the Order of Canada, was both criticised and defended for his perceived views on Israel.

Earlier this month, as he prepared to leave for the region, he spoke with OpenCanada managing editor Eva Salinas by phone from London on the investigative procedure, the challenges he expects his team to face, and on Foreign Minister John Baird’s ‘fixed opinion.’

What is the process now, once the team is together, do you go straight into the field to do interviews?

Yeah. It’s a fairly standard methodology for these commissions. This isn’t the first time it has been done in the UN. It involves a mixture of plodding through open sources, looking at all of the accounts and materials that have been generated; going and interviewing people on the ground; holding hearings, in some cases there will probably be some public hearings; interviewing people and obtaining documents and studies.

So it is getting together as much of that kind of material as we can put together and then writing a report which would be probably several hundred pages in length.

And what kind of evidence will you be looking for?

Well, we will have accounts by victims about what happened to them. We will attempt to get explanations from those who are responsible for what happened to them, to find out what they thought they were doing and what they knew and planned to do. That is probably going to be hard because we may not have access to those people but it is something that you want to find out.

Then there will be experts, for example military experts, who are able to talk about issues like targeting and assess proportionality and what can and can’t be done under those circumstances. So we will be getting that kind of information, too.

Is having access or approval from some of these individuals going to be one of the largest challenges in the investigation? What kind of other challenges will you face?

Yes, it is. It was a challenge to the previous investigation of this kind in what was called the Goldstone Mission [named after Justice Richard Goldstone], which was conducted in 2009.

A significant issue of course is determining those who fired the weapons, what they thought they were doing, what their orders were and what they knew about what they were firing at. Firing missiles and rockets and so on in a war isn’t, in principle, prohibited. But it is prohibited if you are targeting civilians and it’s prohibited if you are indiscriminate and it’s prohibited if you are disproportionate. So part of making that assessment involves hearing from the people who did it.

Richard Goldstone issued a statement several months after he produced his reports — I say ‘his report,’ it was a group of four people who signed it. But he made a public statement saying ‘If I knew then what I know now’… because he had information from Israel subsequently, he said the report would have been different. To me that just confirms the usefulness of hearing from those involved directly and also it is a pretty good argument to Israel as to why they should cooperate with the mission.

And what was the result of the commission in 2009 and what might be the implication for the report this time around?

The results. There was fierce debate within the United Nations. The report was controversial. You know, it’s like whatever the results of these things, it’s a piece in a complex story.

Obviously it didn’t bring peace to the Middle East and it didn’t result in prosecutions of people who were felt to be responsible for what the Goldstone Commission felt were international crimes. And of course the conflict resumed, so it certainly didn’t resolve matters. I think it would probably be presumptuous that this Commission will do so as well.

But probably one of the distinctions today is that the International Criminal Court is sort of standing in the wings. It’s a very significant piece now of the issue of accountability in the region. Palestine has indicated that it will probably join the Court. It hasn’t confirmed this yet, but it has indicated it will. If that happens and if the Commission concludes that probably war crimes were committed then there will be an institution all ready to prosecute them.

There is already a Palestinian proposal to the ICC, although from what I understand President Mahmoud Abbas has not yet approved it. Would this kind of report lend as evidence, depending on the results, to its proposal? Or would it go forward independently as a separate case brought to the ICC?

Well the ICC would have to be given jurisdiction. It doesn’t yet have jurisdiction so it is still a bit speculative. Although, as I say, the Palestinian Authority has said that they are very likely to do that. Then it’s in the hands of the prosecutor of the ICC as to what issues to address, whom to prosecute for what crimes and so on. We wouldn’t be involved in that. That is something that happens after the Commission issues its report.

So this is investigation is one piece, as you say, in a complex story. How important is this piece?

Well it’s important in many respects. I mean, we recognize now there are human rights victims. Probably not just victims but everybody has a human right to know the truth about things.

When you have a conflict like this where thousands of people lose their lives and there is huge devastation of civilian infrastructure, then there is an entitlement of the victims, first of all, but I would say also of the global community to know what happened. So the idea is an inquiry like this can provide something a little more thorough and comprehensive than the snapshots people get from the news coverage and from accusations from one side or the other. This is going to be a more serious study and it will be issued by the United Nations and hopefully the judgment of those in the position to know about these things will be that it has been done professionally and is therefore credible.

Are there specific cases or allegations that will get special attention, such as the deaths of the teenagers on both sides, earlier on?

Well I think it’s a bit premature for me to answer that. We may, at some stage in our work, indicate the incidents that are of particular interest to us. But I have to meet with the other commissioners and we will have to discuss that before I could answer that question. I mean I think it is a very logical way to proceed, to identify a number of these cases. Some of them simply because they are emblematic, because they enable you to have a more general understanding of what went on. Because in the time we will have, and with the resources we will have, we won’t be able to look entirely thoroughly at everything. Partly because they were issues that attracted huge international scrutiny and therefore there is a sense that more light has to be shed on them. So those are the ones that were in the headlines.

When could we expect the report?

We are required by the resolution to present the report in March of 2015. So that will be our objective.

Finally, the ICC has received criticism in the past, especially from various African states, that there has been an unfair focus on possible war crimes happening in the non-Western world. In this case, you have been accused of being biased against Israel. How do you address this issue of bias in international law?

Well everybody in the world who knows about the existence of Israel and Palestine probably has an opinion about it.

We are not asked as a Commission to give a general opinion about the conflict or about the origins of the conflict. We are asked to look at a very specific part of the situation which is the violation of human rights law and of international humanitarian law. That will be our challenge to try and do that. Our report will be all the stronger to the extent we can focus on what we have to do and do it as professionally as we can do it.

It is like trying to get a jury for when there has been some notorious event that has taken place and everybody in the country has read the newspapers and seen the reports on television and then you try and create a jury of 12 impartial people. You know? At one point, you swear an oath to be impartial and independent and you try your best to do so. That is what we will try to do. I have two colleagues and they are people of great integrity and we will do our best to do that. People who know seem to think I can do it.

So the comments by Foreign Affairs Minister John Baird have not been an issue amongst you and your colleagues, I assume? Or this idea that non-bias could even exist.

Well you know the bias issue, some people say the UN is biased. Then people say ‘Well not the whole UN, but the Human Rights Council is biased.’ Then some people say that I am biased.

So there are slightly different issues, actually. The problem is that some of the people making the accusations can’t untangle that. So I think Minister Baird’s view is that the whole thing is biased. He is entitled to his opinion about it, but he is quite dismissive of the UN generally and in particular of the Human Rights Council.

If they had appointed Donald Duck to be Chairman of the Commission he would be dismissive of him as being biased. So he thinks the whole thing is biased. He is not really a good judge of whether I’m biased because he has such a fixed opinion about the whole thing.

It would be impossible for him to say ‘This whole thing is biased. The UN is biased. The Human Rights Council is biased. But, the guy in charge of the Commission is a fair-minded person who will do a good job.’ He could do that. So this is why I am sensitive to anybody who is accusing me of being biased, but to date, the people who know me and know my reputation and my work are not concerned about that. It is only people who are dismissive of the whole project, of this Commission and the role of the UN who say the UN is biased against Israel. So they are the only ones who seems to be shrieking about my own personal situation. So I have to weigh all of that. So far, it hasn’t weighed very heavily.