The McGowan Davis/Schabas Inquiry: The UN Legal Pogrom

The Inquiry Members: Israel is Already Guilty

The mandate of the McGowan Davis/Schabas inquiry includes the Council's expectation of an end product that will "...establish the facts and circumstances...of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures..."

Each of the three individuals chosen to serve on the McGowan Davis/Schabas inquiry was selected because their minds were made up. They had already expressed the view that Israel was guilty of crimes during the war, or guilty of crimes in similar circumstances in the 2008-2009 Gaza war, or indicated the accountability measures Israel should face, or demonstrated clear bias against the whole Zionist enterprise and Jewish self-determination.

The Resignation of Chair William Schabas and the appointment of Chair McGowan Davis ,

On January 30, 2015 the Israeli Ambassador to Geneva wrote to the President of the UN Human Rights Council calling his attention to a conflict of interest of the Chair of the inquiry William Schabas that clearly compromised his ability to fulfill his duties of independence and impartiality. Only two years earlier Schabas had been a paid legal advisor to Palestinian authorities (the PLO). Schabas had even provided legal advice on an issue related to the subject matter of the UN inquiry, namely, the use of the International Criminal Court to promote Palestinian claims.

Although a lawyer, Schabas first attempted to stay on and dispute the obvious conflict, and on February 2, 2015 wrote to the Council President professing his innocence.

The Council President, however, decided to forward the case to the UN's legal counsel. With the outcome inevitable and the public embarrassment growing, on February 2, 2015 Schabas resigned. He did not go quietly. In his bitter letter of resignation, he made the novel claim that of course he was biased but his bias was excusable because it was "well known." And indeed, he had been selected precisely because of his public antipathy towards Israel and its leaders. Even the UN, however, could not withstand the ridicule and disrepute resulting from Schabas having been paid by one of the parties being investigated. The Council President accepted his resignation on February 3, 2015 with alacrity, and offered the post to one of the two remaining inquiry members, who also accepted immediately on February 3, 2015.

Schabas's comments on his way out make clear that the inquiry has been irrevocably tainted. He said: "the Commission of Inquiry...has largely completed the task of gathering material and listenting to victims and other witnesses, including experts. The work on the drafting of the report is beginning." In other words, virtually all of the material serving as the basis of the final report has been selected, gathered and sorted under the direction of a paid Palestinian advisor.

Though the inquiry allowed additional material to be submitted until February 15, 2015 - 12 days after Schabas had left - and pushed back the publication of the report from the Human Rights Council's March session to its June session, Schabas will still have been Chair for 6 out of the 10 months of the inqury's operation.

Moreover, the new Chair has a background that also undermines her impartiality.

William Schabas,
First Chair of the Commission

William Schabas already held these views on Israel and the Arab-Israeli conflict:
  • International Protection of Human Rights and Politics: an Inescapable Reality, Interview with Professor William Schabas by Victor Tsilonis, 2009

    "W.S. ...Why are we going after the president of Sudan for Darfur and not the president of Israel for Gaza?...
    V.T.: A report has been published by Professor Goldstone concerning the Gaza invasion and you have published some information on your blog about it too. What do you think about this report?
    W.S.: Well, I am very supportive of the report. I know all of the people who were on the commission and have great respect for them, particularly Judge Goldstone...I think that in terms of war crimes, I agree with the findings of the report which make sense to me."

  • Speaking at the War Crimes Research Symposium, Frederick K. Cox International Law Center, September 10, 2010

    "If I had to think of the individual who would be the greatest threat to the survival of Israel I probably choose Netanyahu ...
    I really do feel that I have to step in and say a few words in defense of Richard Goldstone and of the Goldstone report. It would be a shame if this conference left... a negative impression about what he's done and his contribution ...It's hard to think of a public personality of such integrity as Richard Goldstone...He has undergone all kinds of very unhappy consequences as a result of doing something the rest of us would be fortunate to get to do in our lives...
    If we look at the poor people of Gaza... all they want is a state and they get punished for insisting upon this and for supporting a political party in their own determination and assessment that seems to be representing that aspiration...
    I'd like to think that I might be even responsible way back for Palestinian declaration...I wrote a paragraph on this ...and I said maybe Palestinian authority can make a declaration saying when they are a state they will ratify the Rome statute and they will give jurisdiction over their territory to the court going back to July 1, 2002. I thought that would be a helpful message, might focus the mind of some of the Israeli soldiers and their leaders on the possibility that they be prosecuted."

  • Speaking at the "Russell Tribunal on Palestine", New York, October 7, 2012

    "...I'm very grateful to you for giving me an opportunity once again to affirm and profound belief that international law can be used to demonstrate and underscore the violations committed by the State of Israel, and moreover can be used to hold accountable individuals who have perpetrated international crimes against the people of Palestine...[C]rimes against humanity, war crimes and the crime of aggression, all of which I think it can be shown have been perpetrated at various times during the history of the State of Israel...The International Criminal Court is in a position to exercise jurisdiction over crimes committed on the territory of Palestine since 2002...A strong and arguable case can be made that the court can already exercise jurisdiction over crimes against humanity and war crimes perpetrated in Palestine, and that the obstacle to that moving forward at this point is simply a decision by the prosecutor of the International Criminal Court. And so much of my effort these times is addressed to try to get that decision rethought and reversed, and pointing out the fallacy, the legal fallacy and the policy error of the Court in failing to take up this burning, important issue...Some of you may have seen the statement by Archbishop Desmond Tutu three weeks ago complaining about the fact that the International Criminal Court focuses entirely on Africa and fails to address the man, well, he would like to see in the dock, Tony Blair. Actually, my favorite would be Netanyahu in the dock at the International Criminal Court...[T]he situation in the Occupied Territories...Let me remind you that although Goldstone rather notoriously now has appeared to backtrack on a part of the report, most of the report and the worst of it -- the worst of it, because the core of the report was about the campaign, not the behavior of individual soldiers in Gaza, but of the campaign of Israel to teach a lesson to people of Gaza, learning from 2006, when it had taught a lesson to the people of Lebanon. And that point, from everything I've read of Richard Goldstone, is not retracted by him, and certainly none of the other three members of the commission have said anything to cast any doubt on their conclusions...When genocide was invented, there was no court at all. There was no court for crimes against humanity. But we have them now. And with a bit of luck and by twisting things and maneuvering, we can get them before the courts."

  • Interview with BBC, July 17, 2014

    "...prima facie there is evidence of disproportionality in the response that Israel is undertaking in order to protect itself."

  • Interview with Israeli channel 2, August 12, 2014

    "Question: Do you consider Hamas a terror organization?
    William Schabas: It would be inappropriate for me to answer a question like that."

    [Hamas is considered a terrorist organization by the following civilized countries across the globe: the United States, the European Union, the United Kingdom, Canada, Australia, Japan, and Israel.]

  • "William Schabas, head of UN Gaza commission, dismisses anti-Israel charge",, August 12, 2014

    "There's a very real possibility now of the International Criminal Court being involved or being engaged in this."

  • Schabas has defended Iran's Mahmoud Ahmadenijad, stating that his repeated calls to "wipe Israel off the map" do not constitute a "call for genocide," but are simply "political views."

Mary McGowan Davis,
Second Chair of the Commission

Mary McGowan Davis already holds these views on Israel and the Arab-Israeli conflict:
    (i) McGowan Davis and her past involvement with the UN Human Rights Council
The UN Human Rights Council responded to the Gaza war of December 2008 and January 2009 – when Israel finally responded to 8,000 rockets targeting its civilian population over an eight-year period – by commissioning a notoriously one-sided report attacking Israel. The report, named after its Chair Richard Goldstone, said Israel had deliberately targeted Palestinian civilians and was guilty of war crimes. After the report was published and endorsed by the UN Human Rights Council, the Council created a "committee of independent experts" specifically to implement its findings.

Mary McGowan Davis was a member of the follow-up committee. From June 2010 to December 2010 McGowan Davis was a member of the committee, and from December 2010 until the Committee reported in March 2011, she served as its Chair. In other words, McGowan Davis has already held a UN Human Rights Council sponsored job and the very purpose of her prior job was to attempt to enforce a report which said Israel was guilty of war crimes.

Though Goldstone himself later retracted the central slanderous accusation that Israel had deliberately targeted Palestinian civilians, McGowan Davis continued to champion it. Contacted by the media after Goldstone's retraction, (which came a month after she submitted her own final follow-up report in March 2011), she said the war crimes allegations stood, she took them as a given, and she remained committed to their implementation. "Our mandate was to take his report as given and start from there." "Our work was completely separate from his work...My feeling is [that Goldstone's statement] does not have any impact [on our work]."

McGowan Davis's follow-up committee produced two reports, in September 2010 and in March 2011. The September 2010 report accepted the finding of Israeli war crimes. It said: "the Committee interpreted its mandate" to mean following-up the demand for "investigations, disciplinary proceedings and prosecutions" for "the serious violations of international humanitarian and international human rights law reported by the UN Fact-Finding Mission on the Gaza Conflict [the Goldstone Inquiry]..." (During the formal presentation of the report to the Human Rights Council in September 2010, the committee also affirmed "the offences that were committed during the Gaza conflict." )

In her March 2011 report, McGowan Davis
  • decided that Israel's legal system did not meet standards "for carrying out an independent and impartial analysis" of Israel's violations of international law, or "of achieving accountability and justice." (paras. 41, 44)
  • declared that "the investigation carried out by the PIIC [Palestinian Independent Investigation Commission] conformed to international standards and could be considered credible and genuine." (paras. 53, 84)
  • described the misogynist, homophobic, anti-free speech, "de facto authorities in Gaza" (ie Hamas) – infamous for throwing political opponents off tall buildings – as "generally tolerant of local human rights organizations." (para. 68)
  • invented a requirement for Israel to compensate all Palestinians for any harm done in the course of Israel defending itself against Palestinian terror. "When harm has been done, irrespective of the reasons and justifications for it, victims should be given the opportunity to be compensated for the damages suffered..." (para. 74)
  • objected to Israel having failed to launch a broad legal assault on its democratically-elected leaders for the entire Gaza operation. "[T]here is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead." (para. 79)
So in 2010 and 2011, McGowan Davis had the UN Human Rights Council job of "assuring accountability and justice" (2011 report, para. 6) for, among other things, Israeli war crimes. In 2014 and 2015 McGowan Davis is given the UN Human Rights Council job "to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable."

The same person is given the same job on almost the same fact situation. And the UN calls it "impartial."

Moreover, in a statement McGowan Davis made to the Human Rights Council on this fact situation she revealed a profound moral relativism. She analogized the democratic state of Israel, governed by the rule of law, with Hamas, a terrorist organization governing by fear. In her words: "as long as victims - in Israel and Gaza - continue to lack confidence in the investigative processes, and continue to live in difficult and unsafe conditions, without hope of remedy, there will be no genuine accountability and no justice." A skewed moral compass is what McGowan Davis brings to the task of assessing the realities of a democratic society confronted by genocidal terrorists.
    (ii) McGowan Davis and her ongoing relationship with the International Commission of Jurists (ICJ)
McGowan-Davis is on the board of the American Association for the International Commission of Jurists (ICJ). According to its own website, the American Association for the International Commission of Jurists (AAICJ) is "an affiliated organization of the ICJ in Geneva." Throughout her long tenure as a board member, the ICJ has been repeatedly and directly connected with the Human Rights Council's campaign to vilify Israel over the 2009 Gaza war, the Goldstone Report, the follow-up to the Goldstone Report, and the latest inquisition created by the Council on July 23, 2014.
  • In January 2009 the UN Human Rights Council held a special session to denounce Israeli actions in the 2008-9 Gaza War and adopted the resolution that gave rise to the Goldstone inquiry. Of the thousands of UN-accredited NGOs, the ICJ was one of two-dozen that spoke. The ICJ claimed Israel had violated international law during the conflict and called for the Goldstone inquiry's creation.
  • In June 2009 the ICJ made a submission to the Goldstone inquiry repeating the allegations of Israeli criminality.
  • On October 16, 2009, when the Council held a special session to endorse the Goldstone report, the ICJ was again one of the few NGO speakers. This time it called for the establishment of an 'expert mechanism' to push the implementation of the Goldstone report findings. This was the follow-up committee of "independent" experts to which the board member of its American affiliate, McGowan Davis, was then appointed.
  • Also on October 16, 2009, the ICJ pronounced its views on the conclusions that it expected from the follow-up committee – the same issues that McGowan Davis was then charged with determining. The ICJ called the Israeli investigations into the Gaza conflict "ineffective as they lack safeguards of independence and impartiality..." And it even claimed that the prosecution and punishment of Israeli "civilian leaders and military commanders" for Goldstone's list of crimes is "essential" to conform to international standards.
The Gaza war of 2014 elicited the same scenario. The NGO with which McGowan Davis is closely associated calls for the creation of the Human Rights Council body to which she is subsequently appointed. Her NGO publicly expresses its views as to what her body should conclude in advance of her reporting.
    • During the Council's July 2014 Special Session, the ICJ specifically called for the establishment of the new commission of inquiry – to which the board member of its American affiliate, McGowan Davis, was then appointed.
The ICJ declared what should be the outcome of the very issues McGowan Davis is charged with investigating. The ICJ accused Israel of "disproportionate and indiscriminate attacks" in Gaza as well as "breaches of international humanitarian law and gross violations of human rights law."

A conflict of interest clearly arises from the fact that her own NGO was directly involved in the campaign to create her current position . Her impartiality is clearly prejudiced by her NGO having already declared itself on the substance of her "investigation."

Doudou Dične,
Member of the Commission

Doudou Dične already holds these views on Israel and the Arab-Israeli conflict:

Dične was the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance from 2002 until 2008. In a 2004 report to the UN Human Rights Commission, Dične belittled Israel's right of self-defense - invoking the classic anti-Israel trope of analogizing Palestinian victims to Jewish victims of antisemitism. In his words: "...even if Israel has the right to defend itself, its construction of a 'security wall' nevertheless constitutes a jarring symbol of seclusion, erected by a people whose entire tragic history has been marked by the rejection of the ghetto." The root cause of "the Israeli-Palestinian divide," according to Dične, is Israel; he refers to: "The cycle of extreme violence triggered by the dynamics of occupation..."

In a 2008 report to the UN Human Rights Council, Dične twists a supposed interest in antisemitism into a claim that today's most violent example of antisemitism is not. Anti-Zionism – the self-determination of the Jewish people – is not a form of antisemitism – according to Dične. In his words: "The Special Rapporteur has observed that the systematic equation of anti-Zionism with anti-Semitism has the effect of making it more difficult to combat anti-Semitism..."

Dične is also a major supporter of the Durban "anti-racism" declaration, which singles out Israel alone and declares Palestinians to be victims of Israeli racism. One of his reports to the Human Rights Council, for instance, includes this recommendation: "The Special Rapporteur recommends that the Human Rights Council call upon Governments of Member States to continue to work for implementation of the Durban Declaration and Programme of Action, which should remain the cornerstone of efforts to combat racism, racial discrimination, xenophobia and related intolerance."

Dične was involved in anti-Israel smears as far back as the 1970's, when he was Senegal's deputy representative to UNESCO. In 1974, he represented Senegal at a UNESCO Executive Board session that "condemned" Israel for allegedly violating "religious and cultural properties, particularly in the City of Jerusalem..." The resolution was co-sponsored by Senegal. He was also part of the diplomatic team at the 1974 UNESCO General Conference, during which Senegal voted to deny the state of Israel equal participatory rights in UNESCO's regional activities (by denying Israel membership in a regional group). Dične later joined the UNESCO Secretariat and, among other things, served as spokesperson for UNESCO Director-General Amadou-Mahtar M'Bow in the 1980s, at a time when UNESCO's relationship with Israel and the United States hit new lows.