Monday, July 26, 2010

Blatant Bias


by Evelyn Gordon


Anyone who still doubts the magnitude of the UN Human Rights Council’s anti-Israel bias should read this Jerusalem Post expose on the man appointed to head the council’s latest probe of Israel, German jurist Christian Tomuschat.

Tomuschat’s panel will investigate compliance with the Goldstone Report, which accused both Israel and Hamas of war crimes during last year’s war in Gaza and ordered each to investigate and try its own perpetrators. Thus essentially, Tomuschat is charged with determining whether Israel and Hamas have properly investigated and prosecuted the Goldstone Committee’s allegations.

So here’s what the Jerusalem Post discovered about him. First, he co-authored a brief for Yasser Arafat in 1996 on what legal strategies Palestinians should pursue against Israel — including, incidentally, one they later used with regard to Israel’s security barrier: asking the UN General Assembly to seek a judgment against Israel from the International Court of Justice. Questioned by the Post, Tomuschat confirmed his involvement in the brief but “could not recall” whether Arafat commissioned it.

That’s a distinction without a difference — because whether or not he worked specifically for Arafat, he did work, either voluntarily or for pay, for one party to the current case: the Palestinians. In most legal systems, that would disqualify him from serving as a judge. But not in the HRC’s system.

Second, Tomuschat has already asserted, in a 2002 paper, that states can never properly investigate their own militaries. In his words: “There is little hope that the judicial system of the state concerned will conduct effective investigations and punish the responsible agents. Nowhere have excesses committed by security forces been adequately punished.”

So the man charged with deciding whether Israel’s legal system has adequately investigated its military’s actions in Gaza has already publicly concluded that no legal system ever can. That, too, would suffice to disqualify him in most courts.

Finally, Tomuschat has already asserted that civilian casualties can never be justified as collateral damage of a legitimate military attack. In that same 2002 paper, he wrote: “If a state strikes blindly against presumed terrorists and their environment, accepting that together with the suspects other civilians lose their lives, it uses the same tactics as the terrorists themselves.” Then, lest anyone miss the point, he said in a 2007 interview that Israel’s targeted killings of terrorists constitute “state terrorism” because they sometimes cause civilian casualties.

So the man charged with determining whether Israel’s legal system correctly applied international law to specific incidents publicly rejects a major premise of said law: that civilian casualties aren’t crimes if they result unintentionally from proportionate strikes on legitimate military targets. Just this month, for instance, a Korean probe into American soldiers’ Korean War killings of 138 Korean civilians concluded that most were legal because they stemmed from “military necessity.”

In most legal systems, someone who publicly rejected a major principle of the relevant legal code would be disqualified — especially when one side (Israel) has based all its decisions on that principle. But not in the HRC’s system.

The HRC’s legal system, it seems, has only one sacrosanct principle: against Israel, anything goes.


Evelyn Gordon

Copyright - Original materials copyright (c) by the authors.


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