Navi Pillay’s Cronyism
The U.N. High Commissioner for Human Rights’ play to implement the Goldstone report.
2:05 PM, Jan 25, 2011 • By ANNE BAYEFSKY
The world of U.N. human rights, best known for a human rights council with members like Libya, Saudi Arabia, and China, has just outdone itself. A short press release on Monday announces that U.N. High Commissioner for Human Rights Navi Pillay has made some new appointments. The biographies attached leave out a few salient facts – and for good reason. The U.N.’s top human rights officer turns out not to be the model of independence and justice she professes.
Pillay has chosen Sweden’s Lennert Aspegren for the job of “independent expert” and upgraded current U.N. “independent expert” American Mary McGowan Davis to become Aspegren’s boss. Both are charged with assessing how “independently” Israel and its judiciary have responded to the notorious Goldstone Report. But the connections among Pillay, Goldstone, Aspegren and McGowan Davis, as well as other Pillay choices, are dizzying – and disconcerting.
The saga begins a few months after Pillay’s ascendancy to the job of high commissioner in September 2008, during the Gaza war in late 2008 and early January 2009. The U.N. Human Rights Council began the New Year by doing everything in its power to prevent Israel from exercising its right of self-defense against Palestinian rocket attacks emanating from Gaza.
Despite the fact that High Commissioner Pillay was for many years a judge on the Rwandan Criminal Tribunal, which should have taught her to listen to all sides before making up her mind, she immediately drew the central legal conclusion only one day after Israel began its military operation in Gaza. On December 28, 2008, she issued a press release in which she “condemned Israel’s disproportionate use of force.” At the Human Rights Council on January 9, 2009, she first declared Israel guilty of “egregious violations of human rights” and then she demanded “credible, independent, and transparent investigations … to identify violations and establish responsibilities.”
She got her wish. Three days later, on January 12, 2010, the Council created what came to be called the Goldstone inquiry, a so-called “independent international fact-finding mission.” Notwithstanding the title, the Council’s resolution made sure that the point of the mission was to investigate what the Council and Pillay had already decided were “violations of human rights by Israel against the Palestinian people.”
The council asked Pillay to prepare a separate report – despite the fact that she had already drawn her own conclusions – on the same alleged Israeli violations that she had spoken about so soon after coming into office.
The four members of the Gaza inquiry were carefully selected over the next few months and announced by the president of the Council on April 3, 2009. Every one of them, including the man who was appointed chair, South African judge Richard Goldstone, had published their views, uniformly claiming that Israel was guilty of the very crimes they were being hired to investigate, before they were selected for the Council.
Pillay had her own personal connections with Goldstone. Goldstone had been a judge on the highest courts in South Africa. Post-apartheid, Pillay was also named a judge of the High Court of South Africa. Goldstone was appointed the first prosecutor of the Rwandan Criminal Tribunal. Less than a year later, Pillay was part of the first cohort of judges appointed to the Rwandan Criminal Tribunal. When they were both at the Tribunal, Goldstone and Pillay cooperated closely. By the time of the Gaza conflict, then, the Goldstone-Pillay tag team was primed.
Pillay had no qualms about the prejudicial mandate that she had been handed by the Council. The reasons were soon clear. Rather than recognizing and condemning Hamas as a terrorist organization that openly advocates genocide, her August 2009 report lauds Hamas for having "made public statements that it is committed to respect international human rights and humanitarian law."
A month later, in Pillay’s words, she and “Justice Goldstone made a similar assessment.” Goldstone released his report on September 15, 2009. Extreme, even by U.N. standards, his report contains blood libel that, in the Gaza war, the Israeli government deliberately set out to murder Palestinian civilians, rather than to protect Israeli civilians from a deadly eight-year assault.
Goldstone also went out of his way to hand Pillay a means to keep the anti-Israel drumbeat going. He asked the high commissioner’s office to “give attention to the Mission's recommendations in its periodic reporting.” Pillay in turn became Goldstone’s lead champion, endlessly repeating the words she wrote in the Huffington Post shortly after the report’s release: “I lend my full support to Justice Goldstone's report and its recommendations.”
Pillay was just warming up. She began to press the Human Rights Council and others to move to the next stage, and take “urgent action to counter impunity” and “ensure accountability” for the crimes Goldstone alleged. Council members like Saudi Arabia, Kyrgyzstan and company couldn’t have agreed more. On March 25, 2010 the Human Rights Council decided to create another committee as a follow-up mechanism to the Goldstone report.
Among other things, the new Goldstone follow-on committee was charged with determining “the independence, effectiveness, [and] genuineness” of Israel’s response to the report and its “conformity with international standards.” The word “Hamas” was missing from the Council resolution, which referred only to an enigmatic “Palestinian side.” By this point, the Council felt it could count on Pillay and left it to her “to appoint the members of the committee of independent experts.”
In June 2010 Pillay chose three lawyers for the follow-on committee: German Christian Tomuschat as chair, Malaysian Param Cumaraswamy, and Mary McGowan Davis. She chose them with all the elements of independence and accountability that were becoming her signature – that is, accountability to her or to her personal predilections. Tomuschat had once provided legal advice to Yasser Arafat’s PLO. And all three members had close affiliations with an NGO that compromised their impartiality and was linked directly to Pillay’s own staff.
The interrelationships here are not just indicative of the usual collegiality among professionals. The body had been handed the power to assess the adequacy of the implementation of the Goldstone report. It could decide either to breathe new life into the Goldstone recommendations or to retire them. So relationships between Pillay, Goldstone and the new recruits matter to the integrity of the exercise. The members of a committee key to the future of the Goldstone report had been handpicked for their ideological biases and personal connections in order to perpetuate that very report.
Pillay’s moves undermined any pretense of integrity, impartiality or independence.
Committee members Christian Tomuschat and Param Cumaraswamy are both currently honorary members of the International Commission of Jurists (ICJ). Both had been members of the ICJ’s executive committee, and Cumaraswamy was the ICJ’s vice president until 2006. For her part, McGowan Davis is currently on the board of directors of the American Association for the ICJ.
The ICJ, however, is an NGO that had lobbied for the creation of the positions that the three Pillay appointees had assumed. ICJ representatives had also declared their views on the answers that were supposed to result from the new investigation. In October 2009 and March 2010 at the Human Rights Council, the ICJ declared that the Israeli investigations into the Gaza conflict “failed to meet international standards of effectiveness and independence.” The ICJ also claimed that the prosecution and punishment of Israeli “civilian leaders and military commanders” for Goldstone’s list of crimes is “essential” in order for Israel to conform to those standards.
Now meet Mona Rishmawi, a legal advisor to Pillay and chief of her “rule of law” branch. Both Tomuschat and Cumaraswamy, appointed to the Goldstone follow-on committee, were members of the ICJ’s executive committee during Rishmawi’s stint as an ICJ director. Rishmawi had also been executive director of Al-Haq, the Palestinian affiliate of the ICJ. Her published articles include such gems as “Land Use Planning as a Strategy for Judaization” – “Judaization” being the horrible conception of a Jew living on Arab land – and an article where she denounces the “unfortunate parity between the claims of Nazi defendants in the post World War II trials and those put forward by the government of Israel.”
All of this meant that Pillay’s newly appointed “independent experts” were theoretically committed to assessing the “independence” and “effectiveness” of Israeli proceedings and their conformity with international standards. But in practice, the NGO to which they were also closely connected had specifically declared before the Council that Israeli processes “failed to meet international standards of effectiveness and independence.” And in case the triumvirate needed any help coming to that conclusion, they could always count on assistance from the High Commissioner’s office and her partisan advisor on the rule of law.
In addition to her ICJ connections, appointee McGowan Davis had another problem with fitting the “independent expert” mold – her own connection to Pillay. McGowan Davis was a consultant both to the Rwandan Tribunal and to the International Criminal Court during the time that Pillay served as a judge on each of these courts.
Pillay’s office also selected South African lawyer Ahmed Motala as the in-house contact to serve as the Tomuschat committee’s facilitator. Motala, however, doubled as an anti-Israel blogger. He had written in the middle of the Gaza war that Israel targeted Palestinian civilians in order to impress voters: “What better way to gain the support of the Israeli electorate than to ... kill innocent civilians.” After Motala’s comments were widely circulated, Pillay was forced to remove him from the committee post.
But Pillay seems to have been undaunted, making no pretense of an even-handed approach when it came to Israel. On July 7, 2010 she made an unusual appearance before the U.N. Security Council, having been invited to address the issue of “situations where the protection of civilians has been and remains of great concern.” After noting the millions affected by atrocities around the world, the only plea she made in her statement to the Security Council on behalf of the peoples of this earth was: “I urge the Security Council to support the recommendations of the United Nations Fact-Finding Mission on the Gaza Conflict,” a.k.a., the Goldstone report.
The Goldstone follow-on committee performed as Pillay and the Human Rights Council anticipated. Their September 2010 report repeated the odious claim that Israel engaged in “violence against civilians as part of a deliberate policy” and criticized Israel’s legal system for failing to hunt down “officials at the highest levels.” Referring to a Hamas internal “investigation,” in which Hamas exonerated itself from all wrongdoing, the committee could only conclude that it was “not in a position to ascertain the veracity of any of these assertions.”
The Human Rights Council rewarded the committee with a job renewal, a request for another report in March of 2011, and a demand that the U.N. system open its coffers and pay for it all. However, given the obvious biases and lack of independence among Pillay’s crew, the professional reputation of committee members was starting to suffer. Perhaps the glow from impressing Libya, Saudi Arabia and company was also wearing off. So in late November of last year, Tomuschat, followed a week later by Cumaraswamy, resigned from the Goldstone follow-on committee.
It was left to Pillay to find a replacement. Which brings us to Monday’s unassuming press release. Pillay promoted McGowan Davis to the position of chair and chose Lennert Aspegren to join McGowan Davis on the Goldstone campaign.
Again, Pillay’s twisted notion of an “independent expert” is on fully display. Aspegren and Pillay were both elected to the Rwandan Criminal Tribunal at the same time in 1995, frequently assigned to the same three-judge chamber, and worked as full-time colleagues until 1999. Pillay was taking no chances on a stranger with whom she couldn’t pick up a phone. Moreover, just like Pillay, Aspegren had once worked in close cooperation with the Tribunal’s prosecutor, Goldstone – who had a vested interest in the findings of the follow-on committee.
It gets worse. With Goldstone deservedly under fire, so-called human rights organizations have begun giving him awards. One such award is the Stockholm Human Rights Award, tailor-made for the Goldstone resuscitation campaign, with Goldstone being the first-ever recipient in 2009. This award is a joint initiative involving three organizations, one of which is the International Legal Assistance Consortium (ILAC). One of the four “founding organisations” of ILAC is the International Commission of Jurists, the NGO connecting so many of the dots.
Prior to giving Goldstone his award, ILAC and the other two organizations sponsoring the prize wrote and widely distributed a letter, entitled, “The Goldstone report must be taken seriously.” Goldstone was on the ILAC governing body (the ILAC Council) at the time it decided to create and award him the prize. Cumaraswamy, the former Pillay appointee to the Goldstone follow-on committee, is one of a small group of specially-appointed ILAC “individual members.” The unseemly optics of it all evidently passed unnoticed.
It is less difficult to overlook the award recipient in its second year. The 2010 Stockholm Human Rights Award was given to none other than Goldstone-crusader, High Commissioner Pillay. The award was given out in a small ceremony on November 30, 2010, and in the room was her old colleague at the Rwandan Criminal Tribunal and soon-to-be-member of the Goldstone follow-up committee, Lennart Aspegren. Pillay singled him out for individual praise in her acceptance speech.
It also transpires that while Goldstone was on the ILAC Council and Cumaraswamy was an individual member, Aspegren was selected to serve on a number of ILAC delegations, which sent him on missions around the world, a debt he may just want to repay.
So this is how the U.N. works. A High Commissioner with a clear bias, shared by the U.N.’s most unscrupulous set of state actors, contrives to create a series of committees to forward her agenda. The job descriptions are liberally sprinkled with the word “independent.” But, in fact, she ensures that individuals who are anything but “independent” fill the positions. They are either indebted to her or to each other. They share her biases or are tied to those who do. And in the face of criticism, they manufacture and give each other awards. Those with bruised reputations depart, only to be replaced by other reliable friends.
It is hard to know which of these many steps is more deplorable than the next. In the name of “independence” and “accountability,” the U.N.’s top human rights official is busy promoting a vicious campaign to demonize one U.N. member state and throwing the rules about impartiality and fairness out the window.
Commissioner Navi Pillay and her appointments, Lennert Aspegren and Mary McGowan Davis, are the wrong people to take any leadership role in demanding accountability from others.
Anne Bayefsky is a senior fellow at the Hudson Institute, a professor at Touro College, and the editor of EYEontheUN.org.
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