With no anti-Israel record, head of UN Gaza probe offers rare sliver of hope
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Crane to ToI: 'No preconceived positions or perspectives'

With no anti-Israel record, head of UN Gaza probe offers rare sliver of hope

Although appointed by ‘most biased agency in the world,’ David Crane looks like a better choice for the Jewish state than his predecessors; hence the silence from Jerusalem

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Prof. David Crane giving a lecture in October 2017 at Syracuse University (YouTube screenshot)
Prof. David Crane giving a lecture in October 2017 at Syracuse University (YouTube screenshot)

The pro-Israel community responded with near-total disinterest to last week’s appointment of US law professor and former war crime prosecutor David Crane to head the United Nations Human Rights Council’s probe into this summer’s riots at the Gaza border.

Officially, Israel rejects the “Commission of Inquiry” itself, with Prime Minister Benjamin Netanyahu saying the organization that commissioned it is “hypocritical and biased,” and only wants to “harm Israel and back terrorism.”

But somewhat surprisingly, Jerusalem has yet to comment on the person who will lead the investigation.

More than a week after Crane, who until March was a law professor at Syracuse University, was appointed to lead the three-person team, the Foreign Ministry still refuses to comment on the matter.

A picture taken on June 18, 2018 in Geneva, Switzerland, shows a general view during the opening of the 38th session of the United Nations Human Rights Council. (AFP/Alain Grosclaude)

The silence is likely indicative of the fact that after years of publishing reports written by known anti-Israel jurists, the Human Rights Council may have finally chosen somebody who, at least in his public statements, does not seem to be overly critical of the Jewish state. Officials may quietly hope that he will be impartial, or at least give Israel a fairer shake than his predecessors have.

The choice has even managed to win moderate praise — or at least not condemnation — from the heads of NGOs normally ultra skeptical toward any UN action on Israel, though the council’s record has still left plenty of room for consternation.

Israel tends toward disproportional responses, which just fuel further anger

Crane, who served in the US federal government for more than 30 years before he became founding chief prosecutor of the Special Court for Sierra Leone, has, in the past, written about Israeli-Palestinian violence.

“Every nation has a right to defend its citizens… but you must launch an attack in a proportional way and can’t cause unnecessary suffering for civilians,” he said in 2006. “Israel tends toward disproportional responses, which just fuel further anger [in the region].”

In 2009, Crane told CBS News that Hamas firing rockets at civilians violates the laws of war.

David M. Crane (courtesy Syracuse University)

But, he added, violations on one side do not excuse them on the other. “Even if the other side is not following the laws, you cannot step away from them.”

In determining whether Israeli troops were justified in shelling a building with dozens of civilians, one must find out whether they were aware of the likely civilian casualties, or if they merely knew that “they were being fired upon,” he said.

Reached by The Times of Israel this week, Crane said he and his colleagues will not give interviews about the probe.  However, he provided this statement: “As Chair of the Commission of Inquiry for Gaza and East Jerusalem I can assure all parties and constituents that the Commission will conduct its investigation fairly and with an open mind with no preconceived positions or perspectives.”

Asked about his personal background, including his term as legal adviser to the Multinational Force and Observers in the Sinai in 1983, he merely offered: “I fell in love with all of the diving opportunities in the Gulf of Aqaba from Naama Bay to Eilat.”

Schabas was ‘disqualified’ from the very start

In 2014, officials in Jerusalem and pro-Israel advocates immediately cried foul after the Human Rights Council appointed Canadian jurist William Schabas to head a probe into Israel’s 2014 war with Hamas.

At the time, the Foreign Ministry not only denounced the Commission of Inquiry as a “kangaroo court,” but also took aim at the person heading it.

“The appointment of the chairman of the committee, whose opinions and positions against Israel are well-known, proves beyond any doubt that Israel cannot expect justice from such a body,” the ministry said at the time.

The commission’s final report “has already been written and at the moment it has only been defined who will sign on it.”

In December of that year, UN Watch, a Geneva-based pro-Israel watchdog, filed a legal request demanding Schabas step down as the inquiry’s head.

Among other complaints, it cited the legal scholar calling Hamas “a political party” legitimately representing the Palestinian people’s aspiration for statehood.

Hillel Neuer of UN Watch (photo credit: Michal Fattal/Flash 90)
Hillel Neuer (Michal Fattal/Flash 90)

In 2012, Schabas had said he wished to see Netanyahu tried at the International Criminal Court. UN Watch’s executive director Hillel Neuer said at the time that the statement clearly indicated his bias against Israel.

“That statement alone is sufficient to disqualify Professor Schabas on the question of whether he can impartially sit on this panel,” he said.

Schabas did not let the attacks on him go unanswered.

“What has to happen in a commission like this is that people like myself have to put anything they may have thought and said behind them and to approach their mandate in the most fair and objective and impartial manner possible. And that’s what I intend to do,” he told Israel’s Channel 2 news in August 2014.

Schabas nonetheless quit a few months later, after it was revealed that in 2012 the Palestine Liberation Organization had paid him $1,300 for a legal opinion. He has since resumed his vocal opposition to Israeli policies.

Posted by William Schabas on Friday, 13 July 2018

In the summer of 2014, US jurist Mary McGowan Davis replaced Schabas as the head of the Gaza inquiry. The report she eventually issued had its share of problematic and questionable elements — it legitimated Hamas attack tunnels, to give just one example. But it was received in Israel with considerably less criticism than judge Richard Goldstone’s report on Operation Cast Lead.

Goldstone, a Jewish judge from South Africa, was severely criticized and even personally ostracized after his report accused Israel of “deliberately” targeting Palestinian civilians. He later partially retracted that claim.

Crane has a considerably better record than any of his predecessors, pro-Israel groups said, but at the same time they cautioned against having high hopes for the report he is about to write.

“Crane is an unusual appointment compared to previous Human Rights Council choices. He does not have a record of obsessive hostility to Israel,” said Gerald Steinberg, an Israeli political science professor and the president of a pro-Israel nonprofit watchdog NGO Monitor.

In contrast to Schabas and Goldstone, Crane has “extensive experience in applying legal frameworks in modern warfare, particularly regarding Syria,” Steinberg told The Times of Israel.

Judge Richard Goldstone (second from right) at public hearings in 2009 about alleged Israeli violations committed during Operation Cast Lead (photo credit: UN/Flash 90)
Judge Richard Goldstone (second from right) and Christine Chinkin (right) at public hearings in 2009 about alleged Israeli violations committed during Operation Cast Lead. (UN/Flash 90)

Neuer said Crane was a far cry from Schabas, but said some concerns remained.

“There are some statements Crane has made concerning Israel’s self-defense over the past years that were problematic and that seem to have been partisan against Israel. So there are some fair questions about his record.” he said.

While Neuer said Crane’s public record suggests he’ll approach the subject with less prejudices than his predecessors, he expressed anxiety given the record of the body that charged him with preparing the report.

“One has to question the judgment of anyone who works for the UN Human Rights Council. It’s the most biased agency in the world when it comes to Israel,” Neuer said.

It’s disturbing that any objective jurist would want to work with the Human Rights Council when it comes to Israel

The Geneva-based council has a permanent agenda item forcing it to discuss Israel’s alleged human rights violation every time it meets. No other country has its own agenda item.

The resolution that created the council’s “Commission of Inquiry on the 2018 protests in the Occupied Palestinian Territory” is “entirely one-sided,” according to Neuer.

A picture taken from Kibbutz Nahal Oz across the border with the Gaza Strip shows Israeli soldiers in position as Palestinians gather along the security fence, on May 14, 2018. (AFP/Jack Guez)

Indeed, the text “condemns the disproportionate and indiscriminate use of force by the Israeli occupying forces against Palestinian civilians,” but doesn’t once mention Hamas, the internationally recognized terrorist organization that provoked this summer’s clashes at the Gaza border.

Given that the council already declared Israel guilty of letting Hamas off the hook, “it’s disturbing that any objective jurist would want to work with the Human Rights Council when it comes to Israel,” Neuer said.

Even if Crane “breaks with all precedent” and attempts to be impartial, it is far from guaranteed that his probe’s final report will be fair to Israel, Neuer said.

In previous reports, key chapters were not written by the commission’s head but by Geneva-based Human Rights Council staff — some of whom are sworn enemies of Israel, Neuer said.

“We know that no matter what, the council will eventually condemn Israel. Why would anyone go along with it,” he asked.

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