UN Watch requests that Prof. Christine Chinkin recuse herself from the United Nations Fact Finding Mission on the Gaza Conflict on the grounds that she has already pronounced herself on the merits of the particular question to be decided by the Mission, thereby giving rise to actual bias or the appearance thereof, or that she be disqualified by the other Mission members or by the UN Human Rights Council president.
Under international law, the minimal rules of due process require that fact-finders in the human rights field be impartial. The members of the Mission have themselves repeatedly emphasized that their terms of reference, as received from the president of the UN Human Rights Council, are impartial, in contrast to the original, one-sided Council mandate of 12 January 2009.
The Mission has pledged to impartially assess “all violations of international human rights law and international humanitarian law that might have been committed” in the recent Israel-Gaza conflict. Yet prior to seeing any evidence, Prof. Chinkin publicly declared that one of the parties—Israel—was guilty of both charges. The Mission cannot claim to be operating with an open mind when one of its members has already made up her mind.
The facts are straightforward and undisputed. On 11 January 2009, during the recent Israel-Gaza conflict, the Letters section of the Sunday Times published a joint statement signed by Prof. Chinkin (Exhibit A) that declared Israel to be the aggressor, and a perpetrator of war crimes.
The letter began by “categorically rejecting” Israel’s right to claim self-defence against Hamas rocket attacks, “deplorable as they are.” While the end of the statement includes one passing reference to crimes committed by Hamas, the entire rest of the statement is devoted to the thesis that Israel was guilty—of the very accusations that the Mission is meant to impartially examine.
Asked about this during a May 2009 meeting with Geneva NGOs, Prof. Chinkin denied that her impartiality was compromised, saying that her statement only addressed jus ad bellum, and not jus in bellum. But this was untrue.
In fact, her statement not only determined that “Israel’s actions amount to aggression, not self-defence,” but additionally that they were “contrary to international humanitarian and human rights law,” and constituted “prima facie war crimes.”
The impartiality requirement under international law, as applicable to international human rights fact-finders, is unequivocal. Scholars of international law list impartiality as the first principle of fact-finding. Impartiality as a requirement is further set forth in Articles 3 and 25 of the UN Declaration on Fact-Finding.
Finally, precedents from analogous international tribunals are equally clear. In the 2004 case of Sesay, the Special Court for Sierra Leone disqualified a judge who had published statements on the culpability of an organization connected to the defendants. This precedent applies a fortiori to the case of Prof. Chinkin, whose prior determination of guilt directly concerned one of the parties under examination.
The remedy applied in Sesay should apply here. Never in the history of international tribunals and fact-finding panels has there been a more overt case of actual bias in the form of an arbiter’s prior determination of the merits of a particular case in controversy.
Justice Goldstone has promised that the Mission would be impartial. Even if, somehow, one were to conceive of an argument as to how Prof. Chinkin has not demonstrated actual bias, there is nevertheless the objective appearance of bias. The reasonable person would consider Prof. Chinkin to be partial after she publicly declared the guilt of one of the concerned parties on the very case and controversy under consideration. Therefore, if justice is to be done—and to be seen to be done—the only remedy is Prof. Chinkin’s recusal, or her disqualification by the Mission or the Human Rights Council president.