Judging the Judge of Israel

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In September 2014, I had the opportunity to form my own judgment about the former UN-appointed judge of Israel.

We were sitting in a brownstone on Crown Street in New Haven, the headquarters of Shabtai, the Jewish society at Yale. William Schabas, head of a three person committee appointed by the UN to investigate crimes against international law in Israel and Palestine during the summer of 2014, had been invited to meet with Israeli academic Moshe Halbertal and give a talk on the topic of Jewish contributions to human rights law. Some wondered why he’d accepted the invitation, but I didn’t. Presumably Schabas, a known critic of Israel who had once declined to call Hamas a “terrorist organization” when giving an interview with the Israeli press, was venturing into the lion’s den to indicate that he wasn’t prejudiced.

I was asked to interview Schabas for one hour about the history of human rights and the law. This assignment was particularly personal for me. At the end of June, I’d visited Israel for a month to attend my brother’s graduation and finish a novel about daily life in my birthplace during the second intifada. Over the course of my stay, rocket fire broke out. I experienced the effects of eleven air raids, including one where a dying relative and Holocaust survivor was unable to be moved into a shelter and asked us to leave her behind. Mindful of everything that I’d experienced, I wanted to talk to Schabas to get some insight into his thought process and judge him for myself. He’d mostly avoided discussing Israel and Palestine overtly on his trip because he said it might compromise his forthcoming report. So I had to be indirect, focusing on historical examples.

What was his opinion of the Allied bombing campaigns in Germany and Japan in the Second World War? He explained that the bombings might well be considered illegal by today’s standards, though the context of 1945 made their status more ambiguous. If it were up to him, it would always be a crime to attack civilians in cities. How did he think a hypothetical commission would deal with limited access to information regarding military decision making and activities undertaken in secret by terrorist groups? He told me that judges must always do their best to come to conclusions even in the face of great obstacles and incomplete information. Were there any examples in modern history of times when the bombing of cities by western powers represented a justified military intervention? He didn’t mention any. If the United States were attacked by rockets from Mexico, did he think it likely that the United Nations would investigate its retaliatory conduct? His answer was yes, absolutely. The law should apply equally to all nations. In an era in which terrorist organizations can embed themselves in the infrastructure of cities, what constitutes the distinction between overwhelming force and disproportionately violent force when dealing with perceived threats? This is the only question he declined to answer.

His discussion of the Goldstone Report was particularly telling to me. He was struck that Moshe Halberthal admitted that white phosphorus was no longer employed by the IDF thanks to Goldstone’s findings; this was the first time that he’d heard someone associated with Israel admit that the commission had done any good. I wondered if Schabas thought that recommendations for small practical changes such as this were the best that his report might ultimately accomplish.

In my judgment, Schabas seemed like a knowledgeable man who understood that there existed significant opposition to his commission, but who was nonetheless deeply convinced of its nobility. Though originally called upon by the UN to focus on Israeli actions, he immediately insisted that Hamas too had to be scrutinized. But this was the least that he could do to ensure that the commission would not be dismissed out of hand as one-sided. Given Schabas’ history of criticizing Israel, he seems to me to have been an undiplomatic choice to head the commission to say the least, almost guaranteeing that the Israelis would call his findings into question. In an ideal world, a report by the United Nations on the situation in Gaza could be a landmark document setting guidelines to help regulate actions by modern militaries when engaging with targets in densely populated cities using asymmetric force. But the efficacy of such a report would be bound to the constellation of voices that it brought to the table—it could only be patched together in a mutually supportive context in which military expertise informed the theorizing of the academics, and the academics considered the facts on the ground when making their recommendations.

I knew that Schabas’ commission would not provide such a document, and believe that his quitting at this point will have little influence on the ultimate reception of the UN’s findings. The entire enterprise was undertaken in a hostile context in which Abbas is increasingly resorting to the authority of international organizations to try to put the squeeze on Israel and draw attention to the iniquities of the stalling peace process. This adversarial atmosphere might not be the most productive for compromise and open discourse; something like the establishment of a truth and reconciliation committee led by truly impartial observers might lead to greater popular perceptions of justice being served. In the meantime, so long as Hamas continues to deliberately target civilian populations and refuses to adopt strategies of non-violent resistance that have proved gloriously efficacious in the cases of Gandhi, King, and Mandela (strategies courageously carried out every day by moderate Palestinian groups ignored by the press in the face of massive opposition by both the IDF and extremist factions), any effort to solve the peace process through legal finger-wagging will prove to be a futile endeavor.

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