The UN Human Rights Council’s Schabas report was released yesterday. William Schabas himself had to resign from the commission due to undisclosed work he performed pretty much on a volunteer basis for the PLO, but he did not do so until the important evidence-gathering process had already been completed. Unsurprisingly, the report has been called out for its bias both by the Israeli government and by Jewish organizations. Additional noteworthy responses came from Yesh Atid MK Haim Jelin, Elder of Ziyon, and NGO Monitor, among others. After a quick read, a couple of additional points jumped out at me.
The report states explicitly that the UN’s Commission used a standard of proof far below anything that would be used in a criminal trial:
10. Consistent with established practice, the commission employed a “reasonable ground” standard of proof in its factual assessment of the incidents investigated and legal analysis of the patterns found. Such a standard is lower than that required in criminal trials; the commission therefore does not make any conclusions with regard to the responsibility of specific individuals for alleged violations of international law.
By its own admission, therefore, the report really can’t actually conclude anything. This is acknowledged within the report itself by the many uses of qualifiers such as “may have” and “raises concerns” when describing alleged violations. The report does not, and cannot, definitively conclude that any Israeli violations have occurred.
In the court of world public opinion, however, the facts, as usual, don’t matter. Allegations are made and the damage is done.
Another point that I noticed is the Schabas report’s focus on the blockade of Gaza. The Commissioners appear to have conflated the naval blockade, imposed in 2009, with restrictions on the Israel-Gaza land border imposed in 2007, and ignored the Egyptian role in maintaining land restrictions. The Schabas report also disregards the UN’s prior findings in the Palmer report.
The September 2011 Palmer report found (in paragraphs 70, 72) that
The naval blockade is often discussed in tandem with the Israeli restrictions on the land crossings to Gaza. However, in the Panel’s view, these are in fact two distinct concepts which require different treatment and analysis. First, we note that the land crossings policy has been in place since long before the naval blockade was instituted. In particular, the tightening of border controls between Gaza and Israel came about after the take-over of Hamas in Gaza in June 2007. On the other hand, the naval blockade was imposed more than a year later, in January 2009. . . . The Panel notes in this regard that the uncertain legal status of Gaza under international law cannot mean that Israel has no right to self-defence against armed attacks directed toward its territory.
The Palmer report then “conclude[d] that Israel’s naval blockade was legal” (paragraph 81).
The UN’s Schabas report, however, claims that
15. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. . . . In the absence of any progress on the political front, the risk of a flare-up of the situation was evident. . . .
24. The impact of the hostilities in Gaza cannot be assessed separately from the blockade imposed by Israel. . . . In that context, while fully aware of the need for Israel to address its security concerns, the commission believes that the Gaza Reconstruction Mechanism, put in place with the assistance of the United Nations to accelerate efforts to rebuild destroyed houses and infrastructure, is not a substitute for a full and immediate lifting of the blockade.
The Schabas Commission has accepted the inversion of cause and effect propagated by Israel’s detractors at the EU-funded NGO‘s on which the Commission relied so heavily. The naval blockade was a response to, not a cause of, violence. Again, when it comes to Israel, the facts don’t seem to matter much.
