Australia / Israel Review

Hillel Neuer

 

For more than five years, the question of who exactly authored the UN’s 2009 Goldstone Report has been an enduring mystery. The report, written under the auspices of South African Judge Richard Goldstone, was a shocking 500-page indictment of Israel that accused its political and military leadership of deliberately targeting Palestinian civilians during the 2008-2009 Operation Cast Lead in Gaza, and condemned the Jewish state as a whole for systematic and institutionalised racism, among other atrocities and abominations. 

The answer to that riddle – which involves a radical Marxist law professor who held the equivalent of a general’s rank in the global lawfare movement against Israel, and more broadly, the UN Department that selected her – has additional importance today because of the controversy swirling over the upcoming sequel to the Goldstone Report dealing with 2014’s Operation Protective Edge, which will be presented to the UN Human Rights Council (HRC) in Geneva in June.

Understanding who wrote the 2009 report – and how the establishment behind it remains in place – constitutes a direct rebuttal to the latest campaign by HRC backers and activist groups to salvage the reputation and legitimacy of the Goldstone II commission of inquiry into alleged Israeli war crimes.

Following the Feb. 2 resignation of commission chair William Schabas under a cloud of bias accusations, including the revelation that he had done paid legal work for the PLO, defenders have insisted that Schabas’ stewardship of the probe for six out of its scheduled seven months is a non-issue. His resignation has cured all defects, if they ever existed in the first place. “In this way,” says HRC President Joachim Ruecker, the German Ambassador in Geneva, “even the appearance of a conflict of interest is avoided, thus preserving the integrity of the process.”

Yet the discovery of who really wrote Goldstone I challenges everything about the integrity of the “process” that is now producing Goldstone II, with or without the discredited Schabas.

 

The Goldstone Report

In 2009, the fact that the UN commission was headed by Judge Richard Goldstone – who is Jewish and, apart from his involvement in UN circles and occasional criticism of Israeli actions, had been considered a supporter of Israel and of Jewish causes – was what gave the report its explosive impact, and deepened the mystery of how he could possibly have authored a report so dripping with malice.

In weighing the evidence and various accusations, the report repeatedly gave the benefit of the doubt to the terrorist group Hamas. By contrast, Israeli defensive actions were consistently interpreted as part of an over-arching plan to oppress, discriminate against, and murder Palestinian civilians. For example, evidence of perfidy by Hamas gunmen, such as their well-known policy and practice of pretending to be civilians, was summarily dismissed with logic and language that strained credulity and coherence:
While reports reviewed by the Mission credibly indicate that members of the Palestinian armed groups were not always dressed in a way that distinguished them from the civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from the attack.

Likewise, despite common knowledge and the existence of considerable evidence, the commissioners also “found no indication” that Hamas used human shields, that its chiefs employed the al-Shifa Hospital as their headquarters, or that Hamas stored rockets in mosques.

The report did not restrict itself to examining Operation Cast Lead, but offered lengthy narrative sections on the Israeli-Palestinian conflict in which Israel was portrayed in Manichean terms as an oppressive state.

In summary, the report excoriated and demonised Israel, while exonerating Hamas.
The question of how Goldstone could have authored a report dismissed by international legal experts as enormously weak, and considered by Israel and the Jewish world as a modern-day blood libel, was only compounded by his subsequent op-eds in two major publications.

In April 2010, writing in The Washington Post, Goldstone retracted the most significant and inflammatory charge of the report: That Israel’s leaders deliberately targeted civilians. A year later, Goldstone published a New York Times op-ed, “Israel and the Apartheid Slander,” retracting another key accusation, which appears in the report no less than 40 times: That Israel’s security measures were motivated by racism rather than, as the South African jurist now made clear, the need “to stop unrelenting terrorist attacks.”

How could the pre-2009 and post-2009 Richard Goldstone be the same person who wrote the Goldstone Report?

Part of the answer to the mystery of the Goldstone Report is well known: He was not the only commissioner. Goldstone was joined on the panel by three others, each of whom was known to have one-sided views of Israel: Hina Jilani of Pakistan; Christine Chinkin, who declared Israel guilty before she began work on the commission; and Col. Desmond Travers, who has stated that “Jewish lobbyists” control UK foreign policy. Clearly, since the report dealt extensively with supposed violations of international law, Chinkin, the law professor, played an important role.

Yet what no one has understood or appreciated until now is the decisive role in the “process” – to use the words of the current HRC president – played by the UN’s Office of the High Commissioner for Human Rights (OHCHR).

To understand the OHCHR, one must understand the close relationship between two distinct but closely related UN entities. One is the 47-nation Human Rights Council, a political body heavily influenced by the vote-trading power and petrodollars of the Arab and Islamic states. It meets regularly three times a year for month-long sessions.

At the Arab states’ initiative, and with varying degrees of complicity by the EU and others, half of the resolutions passed by the HRC condemn Israel; there is a special agenda item against Israel at every HRC meeting; and the HRC has produced more emergency sessions and inquiries against Israel than any other country in the world.

The OHCHR is based nearby in Geneva. It is a thousand-strong bureaucracy that serves the council by carrying out its investigations, writing requested reports, staffing the council sessions, and acting year-round as its secretariat. From 2008 until this summer, the office was headed by High Commissioner Navi Pillay, who famously said that “the Israeli Government treats international law with perpetual disdain.”

Those who work in the OHCHR see themselves as an independent and neutral agency of the UN dedicated to promoting and protecting human rights.

At the same time, it is also OHCHR officials who supply the material demanded by politically-motivated if not Orwellian resolutions initiated by non-democracies like Cuba, China, and Syria.

From time to time, some OHCHR bureaucrats act on the margins, and only in small ways, to try to resist the more absurd and harmful dictates they receive from the political body. Yet when it comes to Israel, the position of the OHCHR under Navi Pillay has been more in line with the HRC than ever before. The most inflammatory and vitriolic notes from Arab speeches delivered to the council find their echo in the reports drafted by European nationals working for the OHCHR, many of whom are graduates of British universities and come from organisations like Amnesty International. If that weren’t enough, their work is subject to the scrutiny and constant pressure exerted by the 56-nation Islamic bloc.

It is important to note that when the council calls an emergency session and votes to create a commission of inquiry, it is actually the OHCHR that does most of the work. First, top officials of the OHCHR draw up a shortlist and propose names of commissioners to the council president. The presidency is a position that rotates every year among the ambassadors from five regional groups. While it is the president who nominally has the power to make appointments, in practice the OHCHR plays an outsized role. In other words, like Sir Humphrey in the iconic British comedy Yes Minister, it is the top bureaucrats of the OHCHR who, in many ways, really run the show.

Second, and far more importantly, after the commissioners are appointed, the OHCHR’s role only increases. The commissioners only make a few short trips to Geneva in order to hear testimony, discuss the evidence, and give guidance. The drafting is done by a staff comprised of full-time OHCHR officials and outside staff recruited for the project by OHCHR itself.

At the time of the Goldstone Report, UN Watch highlighted the role of OHCHR’s Francesca Marotta as head of the secretariat. Questions were raised about her neutrality, not only because of the work she had done for the UN in Gaza, but also because of her scheduled participation in an anti-Israel lobbying event in Switzerland that was supporting the “Russell Tribunal on Palestine.” After a protest from UN Watch, Marotta pulled out of the event.

Something that is vital to understand about UN commissions of inquiry is that, in practice, their commissioners don’t write the resulting report. The secretariat does. To be sure, some commissioners may provide directions and revisions, but the bulk of the work is performed by a professional staff that can be comprised of human rights officers, forensics experts, and lawyers.

Thus, senior officials within the OHCHR would have had the ability to exercise influence over the report – officials like Mona Rishmawi, a Palestinian lawyer who, prior to joining the OHCHR, had written articles comparing Israelis to Nazis.

 

The Secret Staffer

The role of Marotta and the OHCHR was known at the time, if not fully appreciated. What a probe by UN Watch has now revealed, however, is that outside staff recruited by OHCHR included some of the most radical anti-Israel activists in the world.

One of the known staff members was Sareta Ashraph, whose job, as she described it, was to assist in the investigations, conduct interviews with victims and witnesses, and gather exhibits. Ashraph has also revealed that she was “responsible for drafting several chapters of the final report.”

When it comes to Israel, Ashraph is, to put it mildly, less than impartial. She was and remains a member of Amnesty International, one of the leading groups accusing Israel of war crimes in 2009, and which pushed for and defended the UN inquiry. She was the main organiser of a London lecture on behalf of Lawyers for Palestinian Human Rights, featuring anti-Israel lawfare activists Raji Sourani (head of the Palestinian Center for Human Rights) and Daniel Machover. She also worked in the West Bank on “investigations of allegations of violations of international humanitarian law following ‘Operation Defensive Shield’ in 2002.”

What has not been known until now is that the other key figure on the staff was, through her substantial anti-Israel publications, activism, and leadership role in waging lawfare, exponentially more problematic – someone whose life’s dream was to prosecute Israelis for war crimes.

In the summer of 2009, Israeli and Palestinian witnesses were invited to Geneva to give testimony before Goldstone and the other three commissioners. An administrative information note issued to the witnesses and obtained by UN Watch reveals that there were just two secretariat staffers designated as lead contact persons on “substantive questions.” One was Ashraph.

The only other name listed alongside Ashraph was Grietje Baars, a Dutch-born law professor who teaches in London. In contrast to Ashraph, who in the immediate aftermath of the report wrote in detail about her role in the Goldstone Report, Baars took pains to obscure her participation.

For some time afterwards, her LinkedIn profile page only admitted to her having served as a generic “United Nations Human Rights Officer” for the several months during which she worked on the Goldstone Report.

It is easy to see why. If people knew who Baars was and her role in the report, there would have been justified outrage at OHCHR for selecting her.

This would not have been for lack of legal credentials. Known today as Dr. Baars, she teaches international human rights law at the City Law School in London and previously taught at the University of East London and University College London (UCL).

This means that, when OHCHR hired her to work on the Goldstone Report, they must have known about Baars’ scholarship. They must have known that she was a self-described Marxist whose doctoral thesis was “a radical Marxist critique of law and capitalism,” and that her academic focus included “anti-occupation struggles and their intersection with other solidarity/liberation struggles” such as “anti-capitalism, anarchism, animal, and queer liberation.”

OHCHR would certainly have known of Baars’ prominent advocacy scholarship against Israel, such as her 2007 law journal article in the Yearbook of Islamic and Middle Eastern Law, entitled “Corrie et al. v Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the US Courts.” The article analyses case law and suggests best practices regarding Palestinian lawfare efforts against Israel and the movement to boycott companies doing business with Israel, with numerous comparisons to the Nuremberg trials against the Nazis.

But OHCHR must also have known that Baars was much more than a scholar: She was a hardcore anti-Israel activist who has risen to become a leading figure in the global lawfare movement – a worldwide campaign to erode Israel’s international standing through the misuse of the language and mechanisms of international law.

Baars’ prejudice was not only legal or academic in nature.

A 2007 public forum message offers tips on how travellers with something to hide might pass through Israeli security.

In a 2008 message, Baars advised a freelance photojournalist on how to enter blockaded Gaza.

An email Baars sent to her activist colleagues as the Gaza conflict unfolded in December 2008 – the war she would later investigate for the Goldstone Commission – pre-emptively declared that Israel was conducting a “massacre” in the territory and ranted about Israeli “lies we have to fight.”

Similar partisanship was evident in the many anti-Israel workshops she helped organise as a legal adviser in Jerusalem to the radical and pro-Palestinian Swedish development group Diakonia. In one lawfare briefing for activist attorneys, her PowerPoint presentation celebrated the numerous “opportunities” to prosecute Israeli soldiers or officials, because, after all, Israelis were responsible for a “war crime a minute.” With undisguised glee, Baars concluded, “See you in Court!”

In another PowerPoint for European diplomats, Baars emphasised that the Palestinian Authority has no legal power to make concessions that, in her view, would “sign away” obligations or rights.

It was also as Diakonia’s representative that she travelled to Gaza to meet with key Palestinian contacts. Among them was reported Hamas official Dr. Maher al-Huli, the “Faculty of Sharia & Law Dean” at the Gaza-based Islamic University. The New York Times called this institution “one of the prime means for Hamas to convert Palestinians to its Islamist cause”.

It seems clear that throughout this time, Baars was playing a leadership role in the global lawfare movement. In July 2008, for example, she met with the head of the Gaza-based Palestinian Centre for Human Rights, Raji Sourani – perhaps the leading proponent of lawfare. (This is the same Sourani who had been brought to London by Baars’ colleague on the Goldstone staff, Sareta Ashraph.) Their meeting focused on an ambitious upcoming conference in Brussels aimed at organising and training Palestinian and European activist lawyers in how to conduct the “pursuit of Israeli war criminals” through “joint action in international courts.”

Indeed, many of Baars’ Diakonia workshops were pure lawfare endeavours, training activists in how to isolate Israel or Israeli interests internationally, building human rights cases against Israeli soldiers and officials, as well as companies doing business in the settlements. She also lobbied European governments to endorse her boycott and lawfare campaigns.

After the inquiry, she openly served as a key contact person for the May 2010 flotilla that tried to break Israel’s blockade of Gaza.

There seems to be little doubt that, for Baars, working on the Goldstone Report was a dream come true. All of her hard work at Diakonia, her visits to Hamas-linked activists in Gaza, her lobbying of European diplomats to sanction Israel, her global conference to orchestrate universal jurisdiction cases against Israelis – all of this was going to pay off in a colossal UN report. Her dream was suddenly within reach, and it would be published under the name of an ostensibly pro-Israel Jew. She could not have asked for anything more. Her experience writing chapters of the Goldstone Report was so impactful that she dedicated her PhD thesis to, among others, Richard Goldstone and chief-of-staff Francesca Marotta.

Given Baars’ immense on-the-ground experience and credentials with Palestinian and international lawfare activists, along with her substantial legal writing experience, she was arguably the most influential behind-the-scenes member of the Goldstone probe. As a front-line researcher with the inquiry, she was responsible for being a first point-of-contact for many of the witnesses giving testimony. As such, she was in a position to prioritise incoming evidence, a critical responsibility that a truly objective inquiry would assign only to a truly impartial expert.

Beyond what it says about the credibility of the Goldstone Report, Baars’ involvement raises serious questions about the impartiality of OHCHR, which filled the inquiry’s secretariat with a mixture of its own staffers and outside hires.

 

The Schabas/McGowan Davis Commission

In June, what for six months was the Schabas Commission, and now in its final months has become the McGowan Davis Commission, will present its report to the Human Rights Council. Do we have any reason to expect a fair, objective, and credible report?
Not if we consider the built-in prejudice of the commission’s founding mandate, spelled out in resolution S-21/1 of July 23, 2014, which pre-emptively declares Israel guilty. It condemns the Jewish state “in the strongest terms,” citing “widespread, systematic, and gross violations of international human rights,” “the targeting of civilians and civilian properties” as a form of “collective punishment contrary to international law,” “disproportionate and indiscriminate attacks,” “grave violations of the human rights of the Palestinian civilian population,” and “military aggressions.” The resolution mentions Israel 18 times. Hamas is not mentioned once.

Not if we consider that Schabas, the activist chairman who says that he “devoted several months of work” to the project, is someone who performed undisclosed paid legal work for the PLO – on the subject of how to prosecute Israelis in international courts – and who famously declared barely three years ago that the leader he most wants to see in the dock at the International Criminal Court is Israeli Prime Minister Binyamin Netanyahu.

And – as the cautionary tale of lawfare general Grietje Baars as the key author of the original Goldstone Report makes clear – not if we consider the outsized role played by OHCHR in compiling the evidence, processing submissions, and picking the people to draft the report’s chapters and conclusions. Everything we now know about how OHCHR engineered the travesty of the original Goldstone Report indicates that Goldstone II will suffer the same politically-motivated fate.

In fact, the OHCHR’s bias was manifest from day one in their agency chief’s farcical selection of Schabas – of all the law professors in the world – to lead the inquiry. OHCHR knew that, a few months earlier, he had been rejected by a committee of five ambassadors for a similar UN mandate to investigate Israel – on the grounds that he lacked impartiality. Georgetown Law School professor Christine Cerna, herself a one-time UN candidate, has stated that Schabas was chosen specifically because of his well-known positions against Israel.

The same OHCHR that recruited Grietje Baars to staff Goldstone I chose Schabas to head Goldstone II.

What do we know so far about the actual staff members of Goldstone II? As in 2009, OHCHR refuses to respect the principle of transparency by revealing who is on the staff, even though this is common practice elsewhere, such as in the UN’s 2005 oil-for-food report.

I have seen the bias with my own eyes. When I met with the Schabas Commission on September 17, 2014 to personally hand them a written demand for Schabas’ recusal, there were only two staff members in the room, both of them from OHCHR’s Arab section, known as Middle East and North Africa: One was Frej Fenniche, a Tunisian who was a spokesman for the UN’s notoriously antisemitic Durban conference on racism in 2001. The other was Sara Hamood, a former spokesperson for the UN’s most anti-Israel committee. Hamood also worked as a “policy advisor on Israel and the occupied Palestinian territory” for Oxfam Novib, where she wrote one-sided reports and joined others in critical statements against Israel. This was the initial staff of OHCHR, who were presumably involved in hiring the others.

In summary, there is every reason to suspect that OHCHR has manipulated the staffing for Goldstone II just as it did in 2009.

Will Judge Mary McGowan Davis, the new chair of the inquiry, fulfil her responsibility and exercise maximum due diligence to ensure the impartiality of her staff, double check and verify everything handed to her by OHCHR and its hires, all of the evidence, analysis, and findings of fact and law?

As the daughter of the late Judge Carl McGowan, the renowned former head of the US Court of Appeals for the District of Columbia Circuit – who in 1973 ordered President Nixon to turn over disputed White House tape recordings made after the Watergate break-in – McGowan Davis must have acquired a strong sense of justice and courage.
The report that she will produce, and that now bears her name, will be the most famous and lasting moment of her professional life. This is her chance to live up to her father’s legacy.

Hillel Neuer is Executive Director of UN Watch (www.UNwatch.org). Mr. Neuer previously taught international human rights at the Geneva School of Diplomacy. © The Tower (www.thetower.org), reprinted by permission, all rights reserved.