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Wednesday, May 12, 2021

Professor Schabas and the law of Judicial impartiality

It is now well publicized that Professor William Schabas, a leading international law scholar, has made antagonistic comments about the State of Israel and its leaders, thereby questioning his impartiality as the designated chairman of the UN Human Rights Council’s commission investigating the Gaza conflict.  What may be more disconcerting than Professor Schabas’s statements, however, is his attempt to render the impartiality issue irrelevant by claiming that he can ignore his personal views once functioning as a judge.  As Professor Schabas well knows, the law of judicial impartiality is not concerned with the judge’s subjective intent, and due process considerations demand that he be disqualified.     

Upon being selected commission chairman, Professor Schabas conducted interviews with Israeli news media designed to downplay his past statements.  He told Israel’s leading newspaper Yedioth Aronoth: “I have solid opinions on Israel’s actions and its leadership, the same as the rest of the citizens of Israel.  It doesn’t mean that this would impair my judgment.”  In another interview with Israel’s Channel 2, Professor Schabas explained: “What has to happen in a commission like this one is that people like myself have to put anything they may have thought and said behind them and approach their mandate in the most fair and objective and impartial manner possible.”  And to Israel’s i24 News, Professor Schabas similarly promised: “What I am going to try to do is park my views at the door – I don’t want to talk about them anymore, they’re not relevant to the job I have to do – and I am going to try to approach this as objectively and independently as I can.”

Whether Professor Schabas thinks he can adjudicate the accusations against Israel fairly and independently has no bearing on the question of impartiality.  Judicial disqualification is not dependent on the judge’s subjective assessment of impartiality but is based on an objective test of whether the reasonable person aware of the facts and circumstances might consider the judge to be biased.  For example, the Rome Statute authorizing the International Criminal Court provides: “A judge shall not participate in any case in which his impartiality might reasonably be doubted on any ground.”  Even more directly, the Rules of Procedure and Evidence applicable to the Rome Statute establishes as a “ground[] for disqualification of a judge” the “[e]xpression of opinions, through the communications media in writing or in public actions, that objectively, could adversely affect the required impartiality of the person concerned.”

This same objective test applies to United States judges.  The United States Code provides: “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might be questioned.”  Judicial impartiality is so central to the United States legal system that federal judges must all take an oath that they will “faithfully and impartially discharge all the duties” of a judge.  Likewise, the Code of Conduct for United States Judges imposes an ethical obligation on federal judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  

Moreover, Professor Schabas himself instructs that war crimes’ tribunal judges should be disqualified where there is even the appearance of bias under the objective test.  In his book on the UN War Crime Tribunals, Professor Schabas wrote: “A judge may be disqualified in any case in which he or she has a personal interest, or some other association which might affect his or her impartiality.  The test is one of ‘reasonable apprehension of bias.’”

Professor Schabas must concede that UN fact-finding commissions are subject to these same standards of judicial impartiality.  In various interviews, Professor Schabas has emphasized that he and others conducting the fact-finding are obliged to be as impartial as any judge.  Professor Schabas is also likely aware of Professor Thomas Franck’s seminal article relevant to UN fact-finding entitled Procedural Due Process in Human Rights Fact-Finding By International Agencies in which “choice of fact-finders” is one of the “key indicators of procedural probity.”  As Professor Franck wrote: “impartiality. . . certainly implies that persons conducting an investigation should be, and should be seen to be, free of commitment to a preconceived outcome.”

While Professor Schabas is undoubtedly familiar with the law of judicial impartiality, he seems willing to overlook the impartiality requirements when it comes to investigating Israel.  In connection with the UN’s Goldstone Commission five years ago, there were impartiality questions concerning Professor Christine Chinkin, who was appointed to serve on that commission.  Professor Chinkin had declared before her appointment that Israel was the aggressor and guilty of war crimes.  Professor Schabas, who has been an ardent defender of the Goldstone Report even after it was discredited, vigorously supported Professor Chinkin’s right to serve on that commission notwithstanding the impartiality questions. 

Perhaps Professor Schabas considers there to be only a few expert scholars with the necessary knowledge and skills to function as UN fact-finders investigating Israel.  Such elitism, however, should never be rationalized as an excuse for suppressing the fundamental due process protections safeguarding judicial impartiality.  If Professor Schabas genuinely cares about the integrity and fairness of UN fact-finding, he should immediately recuse himself from the commission.  Otherwise, Professor Schabas and the Human Rights Council have only themselves to blame for discrediting this commission as legally invalid.

Daniel D. Edelman is an attorney, who resides in Teaneck, New Jersey and works in Manhattan.  The views expressed are those of the author personally.

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