William Schabas on why William Schabas should be disqualified from heading Gaza inquiryWilliam Schabas should be disqualified from chairing the United Nations fact-finding committee on Gaza.
Whether Professor Schabas thinks he can adjudicate the accusations against Israel fairly and independently has no bearing on the question of impartiality. Judicial disqualification is not dependent on the judge’s subjective assessment of impartiality but is based on an objective test of whether the reasonable person aware of the facts and circumstances might consider the judge to be biased. For example, the Rome Statute authorizing the International Criminal Court provides: “A judge shall not participate in any case in which his impartiality might reasonably be doubted on any ground.” Even more directly, the Rules of Procedure and Evidence applicable to the Rome Statute establishes as a “ground for disqualification of a judge” the “[e]xpression of opinions, through the communications media in writing or in public actions, that objectively, could adversely affect the required impartiality of the person concerned.”
Moreover, Professor Schabas himself instructs that war crimes’ tribunal judges should be disqualified where there is even the appearance of bias under the objective test. In his book on the UN War Crime Tribunals, Professor Schabas wrote: “A judge may be disqualified in any case in which he or she has a personal interest, or some other association which might affect his or her impartiality. The test is one of ‘reasonable apprehension of bias.’”
Professor Schabas must concede that UN fact-finding commissions are subject to these same standards of judicial impartiality. In various interviews, Professor Schabas has emphasized that he and others conducting the fact-finding are obliged to be as impartial as any judge. Professor Schabas is also likely aware of Professor Thomas Franck’s seminal article relevant to UN fact-finding entitled Procedural Due Process in Human Rights Fact-Finding By International Agencies in which “choice of fact-finders” is one of the “key indicators of procedural probity.” As Professor Franck wrote: “impartiality. . . certainly implies that persons conducting an investigation should be, and should be seen to be, free of commitment to a preconceived outcome.”
Perhaps Professor Schabas considers there to be only a few expert scholars with the necessary knowledge and skills to function as UN fact-finders investigating Israel. Such elitism, however, should never be rationalized as an excuse for suppressing the fundamental due process protections safeguarding judicial impartiality. If Professor Schabas genuinely cares about the integrity and fairness of UN fact-finding, he should immediately recuse himself from the commission. Otherwise, Professor Schabas and the Human Rights Council have only themselves to blame for discrediting this commission as legally invalid.Read the whole thing.
More of Schabas' words about Israel and Binyamin Netanyahu here, here, here and here. And for good measure, here's one from 2009.