The U.N. Human Rights Council’s newly-renewed committee to enforce the Goldstone Report, headed by German law professor Christian Tomuschat, has declared Israel to be in breach of a duty to investigate “those who designed, planned, ordered and oversaw ‘Operation Cast Lead’,” and the “serious allegations” that “officials at the highest levels were complicit in violations.” Specifically, the committee cited the name of Israeli opposition leader Tzipi Livni, who served as foreign minister during the 2009 war with Hamas.
As soon as the Tomuschat Committee released its first report in September 2010, Palestinian organizations, echoed by Amnesty International and Human Rights Watch, called for the prosecutor of the International Criminal Court, and prosecutors worldwide, to intervene. This latest U.N.-inspired “lawfare” campaign recalls last year’s successful effort by pro-Palestinian activists in Britain to obtain a court-ordered arrest warrant, on charges of war crimes, against Ms. Livni, who has since avoided traveling to Britain.
While the Tomuschat Report emphasized the principles of independence and impartiality as applicable to investigations, there are serious questions as to whether Professor Tomuschat’s membership on the panel conforms with those same principles, as required by the standards applicable to U.N. experts. To determine these fundamental procedural aspects of the Tomuschat Committee, the present report examined Professor Tomuschat’s legal advocacy work, academic publications, and other public statements concerning the Middle East conflict.
Regarding a U.N. expert’s obligation to be independent, the report found credible evidence that Professor Tomuschat performed legal advocacy work for PLO leader Yasser Arafat. It was reported that he and four other international jurists advised Mr. Arafat in 1996 on how the PLO should make its case before the U.N. and the International Court of Justice in The Hague.
Brief for Arafat
Professor Tomuschat’s claim that he “could not recall” whether his legal brief was done for Yasser Arafat was found to be not credible. Moreover, despite later opportunities to recollect the facts, and to contest the evidence during a U.N. Human Rights Council debate, and again at a U.N. press conference, Professor Tomuschat declined to do so. Accordingly, the evidence gives rise to serious questions concerning the independence of Professor Tomuschat and his committee, and, consequently, the credibility of his report.
Regarding a U.N. expert’s obligation to be impartial, the report found—from the past decade alone—more than 25 examples of statements by Professor Tomuschat that exhibited an unbalanced approach toward Israel, and, in notable instances, undisguised hostility.
The mandate of the Tomuschat Committee, as recently renewed, is to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side concerning the allegations in the Goldstone Report, including the independence, effectiveness, and genuineness of these investigations and their conformity with international standards.
Decided in 2002 that Israel’s Legal System Was Hopeless
Astonishingly, eight years before Tomuschat undertook to objectively and impartially perform this examination, he had already made up his mind about Israel’s system for investigations. In discussing Israel and its alleged ordering of the “systematic commission of war crimes,” he concluded that “[i]n such instances, there is little hope that the judicial system of the State concerned [i.e., Israel] will conduct effective investigations and punish the responsible agents.”
Impartiality requires that an investigator be free of any commitment to a particular outcome. Given that Tomuschat had stated, in stark and unequivocal terms, his commitment to a particular outcome—that Israel’s judicial system offers “little hope” of effective investigation or punishment of alleged violations—his impartiality on the principal question addressed by his committee are severely compromised.
Compared Israeli Actions to World War II Barbarism
One of the most peculiar and troubling findings of the report is that, on several occasions, Professor Tomuschat associated Israeli military actions not to contemporary and similar actions by American, British or NATO troops, which have resulted in many thousands of civilian casualties in places like Iraq and Afghanistan, but rather to the barbarism of World War II:
· In a 2007 essay on the previous year’s Lebanon war, Tomuschat compared Israel’s actions to the “barbarism which was the particular hallmark of World War II.”
· In a further comment on Israel, he wrote that its alleged practice of classifying targets as military even if they “only remotely serve to benefit one war party” could be regarded “as a relapse to the Inferno of World War II, when in many cases both sides acted according to the principle that the means justify the end.”
· In 2006, Tomuschat wrote that “the observer gets the impression that the Israeli Armed Forces inconsiderately geared itself toward the overall concept of the Totalen Krieges.” This concept was made most famous by Goebbels’ 1943 Total War speech. In 2007, Tomuschat again accused Israel of actions that were “close to total war, which does not take into consideration any protection needs of the civilian population.” And in an essay from earlier this year, Tomuschat wrote that Israel’s actions are “a recipe for total war.”
Israel is “State Terrorist”
An additional theme that emerges from Tomuschat’s statements is Israel as a state terrorist—morally indistinguishable from, and equally blameworthy as, those who deliberately target Israeli civilians with suicide bombs. For example, in a 2002 essay, Tomuschat singled out Israel as a prime example of “state terrorism,” of the “systematic” commission of “war crimes,” and of “crimes against humanity.” Such states, in his view, “deserve the same blame as those targeted by them.”
In a 2007 interview, Tomuschat equated Israel’s targeting of Hamas terrorist leader Ahmed Yassin with terrorism itself, saying that “Targeted killings are as reckless as terrorist attacks.” Asked if this meant “state terrorism,” Tomuschat said that “It very much leads in this direction.”
Tomuschat adopts an extreme position toward counter-terrorism in general. He has argued that the targeted killing of terrorist mastermind Osama Bin Laden would be “absolutely illegal under international law.” Moreover, he argues that a country targeted by terrorism needs to “discover [its] own shortcomings,” “analyze its own conduct,” and “ask itself searchingly whether it has made mistakes which have given and give rise to frustration, hatred and despair.” The only way to cure terrorism, argues Tomuschat, is for countries to show that they are “seriously committed to world-wide welfare goals without any distinction as to race, colour or religion.”
It is telling that when a German academic journal featured a debate on the 2006 war between Israel and Hezbollah, Christian Tomuschat was the one chosen to present the side opposed to Israel.
Other examples of Tomuschat’s statements on Israel include:
· Israel is bombing “entire families”;
· Arab nations rightly feel that Israel receives “far better treatment”;
· Israel targets U.N. peacekeepers;
· Israel seeks “to reduce humanitarian law to irrelevance”;
· Israel’s policy is to “bomb a country out into a lunar landscape”;
· Israel’s peace concessions are a cynical plan for “dominance.”
At the 27 September 2010 debate of the U.N. Human Rights Council, UN Watch raised several of these points in an interactive dialogue with Professor Tomuschat, and distributed an advance copy of this report to the press. The Reuters news agency concluded that Tomuschat’s reply to UN Watch was non-responsive to the issues raised, and, at a press conference, asked him once again to address the questions.
In response, Tomuschat attempted to defend his statements as nothing more than legitimate academic writings that criticized targeted killings, and as being unrelated to the Goldstone Report. At the same time, Tomuschat revealed that he had shared his doubts with U.N. authorities in Geneva about whether to accept the position; that he offered to step down from the committee, presumably at some later point after having assumed the chairmanship, if they felt he was biased; but that the U.N. authorities in Geneva, which would be the office of High Commissioner for Human Rights Navi Pillay, saw no reason for it. Tomuschat insisted that his writings were “not in any way the offspring of some kind of prejudice.” Moreover, his opposition to targeted killings was only his “personal view.”
The report finds that Tomuschat’s attempted rebuttal misrepresented the prejudicial nature, degree and extent of his statements and actions, and failed to establish their conformity with his obligation to be independent and impartial.
Conclusion and Recommendations
In conclusion, this report finds that Professor Tomuschat’s extensive record of prejudicial actions and statements gives rise to actual bias, or the perception of bias. Accordingly, the report recommends that he immediately recuse himself from the committee, which was just given a renewed mandate from the Human Rights Council and asked to report back at its March 2011 session.
In the event that Professor Tomuschat refuses to recuse himself, U.N. High Commissioner for Human Rights Navi Pillay should disqualify him from the panel. In addition, she should clarify her process for selecting Professor Tomuschat, and explain why her office rejected his prior offer to step down. Finally, in light of calls for intervention by the ICC prosecutor, UN Watch recommends that the credibility of the Tomuschat Report be weighed in light of his lack of impartiality and independence. This should also be recognized by U.N. Secretary-General Ban Ki-moon, and by the Chatham House group of international legal experts that addressed similar procedural deficiencies in the Goldstone Report.