The UN Commission of Inquiry on the Gaza Conflict:
A Clear Violation of All Accepted International Rules and Norms Governing Fact-Finding Missions

Institute for Contemporary Affairs
Founded jointly with the Wechsler Family Foundation

Vol. 15, No. 4       February 5, 2015

• William Schabas, Chair of the UN Gaza Inquiry, resigned from his post this week. His glaring anti-Israel bias was demonstrated in statements made by him over the years and now confirmed by the revelation of the clear conflict of interest arising from his consultancy work for the PLO.

• The UN’s Rules of Fact-Finding Procedure for UN Bodies Dealing with Violations of Human Rights (1970) is the framework for rules of fact-finding commissions. These rules determine that commission members swear to perform their duties “honorably, faithfully, impartially and conscientiously.”

• In light of the blatant and knowing violation of UN standards for impartiality, both by Schabas as well as by the UN itself, all work done by this commission and under his chairmanship and guidance is flawed and suspect.

The recent resignation of Canadian Prof. William Schabas as Chair of the UN Gaza inquiry has raised some interesting issues in the general context of UN fact-finding procedures.  Shabas’ glaring anti-Israel bias was demonstrated in statements made by him over the years and now confirmed by the revelation of the clear conflict of interest arising from his consultancy work for the PLO and concealed by him from the UN and from its Human Rights Council.

The UN fact finding procedures have developed over the years through a number of declarations and studies by prominent international organizations and legal authorities, and ostensibly should have guided the UN in determining the mandate for any such commission of inquiry and in choosing the Chair of any fact-finding mission or inquiry.

However, it appears that the UN knowingly chose to ignore these well-established procedures in appointing William Schabas to chair the Gaza inquiry, and as such, the UN itself, in addition to William Schabas, have prejudiced any findings and outcome of the Commission of Inquiry and created grave doubts as to any credibility of such findings or outcome.

The following documents set out the various rules and norms for fact finding commissions, each one stressing the importance and centrality of impartiality – both of the mandate, as well as by the head and members of the commission:

• The Draft Model Rules of fact-finding procedure for UN bodies dealing with violations of human rights, issued in 1970 by the UN Secretary General, and adopted in 1974 by the UN Economic and Social Council, have served as the framework for rules of fact-finding commissions.
  These rules determine, inter alia that commission members swear to perform their duties “honorably, faithfully, impartially and conscientiously.”¹

• The Belgrade Minimum Rules of Procedure for International Human Rights Fact-Finding Visits, approved by the 59th Conference of the International Law Association, held in Belgrade from August 18 to 23, 1980²:

Article 1. (Terms of Reference) “The organ of an organization establishing a fact finding mission should set forth objective terms of reference which do not prejudge the issues to be investigated. These terms should accord with the instrument establishing the organization.”

Article 2. “The resolution authorizing the mission should not prejudge the mission’s work and findings.”

Article 4. (Selection of Fact finders) “The fact finding mission should be composed of persons who are respected for their integrity, impartiality, competence and objectivity and who are serving in their personal capacities”

Article 7. “The chairman and the rapporteur of the fact finding mission should not be replaced during the term of the mission except for reasons of incapacity or gross misbehavior.”

• The UN’s own “Declaration on Fact finding by the United Nations in the Field of the Maintenance of International Peace and Security”, adopted by the General Assembly on the 9 December 1991 (UN General Assembly Resolution 46/59)³:

“Fact-finding should be comprehensive, objective, impartial and timely” (Paragraph 3). “Fact-finding missions have an obligation to …… perform their task in an impartial way.” (Paragraph 25) “Their members have an obligation not to seek or receive instructions from any Government or from any authority other than the competent United Nations organ.”(Paragraph 25)

• Guidelines on International Human Rights Fact-Finding Visits and Reports (The Lund-London Guidelines) 2009⁴ drafted over several years by the International Bar Association’s Human Rights Institute and the Raoul Wallenberg Institute, “in order to contribute to good practice in the conduct of fact-finding visits and in the compilation of reports”, launched at the British Institute of International and Comparative Law conference, 1 June 2009, London:

“5. The terms of reference must not reflect any predetermined conclusions about the situation under investigation.

8. The mission’s delegation should comprise individuals who are and are seen to be unbiased.

10. The NGO should ensure that all members of the delegation are aware that they must, at all times, act in an independent, unbiased, objective, lawful and ethical manner.

23. The NGO should ensure that the members of the delegation understand the need to be unbiased and not pre-judge any issues during the mission. The NGO must also ensure that the delegation understands the need to act in an ethical manner and in accordance with the laws of the country and internationally accepted human rights standards.

30. The members of the delegation must conduct themselves with integrity, professionalism and in accordance with international human rights law standards at all times during the mission.

32. If it transpires during the course of the mission that there is a conflict of interest or other circumstances involving any member of the delegation which might jeopardize their independence and impartiality, or which might give the appearance that their independence and integrity is compromised, the leader of the delegation should inform the NGO and that member should desist from participating in a particular meeting, or where necessary from the remainder of the mission. If the team leader is implicated, or is otherwise unavailable, any other members of the delegation may draw the matter to the attention of the NGO.”

In light of these documents which clearly set out the requisite norms and procedures for inquiry and fact finding commissions, it is patently clear that the UN and its Human Rights Council acted in violation of the above guidelines in sanctioning the establishment of the UN Gaza Inquiry, and all the more so in appointing William Schabas as its Chair.

Taking into account this blatant and knowing violation of UN standards for impartiality, by Prof. Schabas as well as by the UN itself, all work done by this commission and under his chairmanship and guidance is flawed and suspect.

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Notes

1. see http://www1.umn.edu/humanrts/monitoring/chapter18.html

2. 75 Am. J. Int’l L. 163 (1981) see http://www3.nd.edu/~sobrien2/the_belgrade_minimum_rules_o.pdf

3. U.N. Doc. A/RES/46/59, Annex (1992), http://www.un.org/documents/ga/res/46/59.htm

4. http://www.factfindingguidelines.org/guidelines.html