Goldstone defends Christine Chinkin from bias charge

On Saturday, Justice Richard Goldstone of the U.N. fact-finding mission on the Gaza conflict gave an interview with Israel TV’s Channel 1 news, hosted by Yaacov Achimeir. Click here for video, or see extract below:

Interviewer: Mr. Justice Goldstone, how do you explain that during the last seven or eight years of Palestinian shelling of cities, of towns in the southern part of Israel, [that] no UN commission of inquiry was established? Why is that?

Goldstone: Well you know I can’t speak for the United Nations or any other body, but there have certainly been non-governmental reports. But you know for the rest, I’m not a politician and I’m certainly not an official of the United Nations, so there’s no comment I can make. I hear and understand what you’re saying, and what the answer is, is really not within my knowledge.

Interviewer: Maybe this is one reason why the Israeli government decided not to cooperate with your commission. I mean the commission, your commission, Mr. Goldstone, was established only after the Israeli military operation which was a reprisal act, not after seven or eight years of Palestinian shelling of innocent civilians in Israel.

Goldstone: I understand that and I’m sure that’s one of the reasons for the lack of cooperation, but you know at the same time I don’t believe this was an issue, the shelling. I don’t believe was really taken to the Security Council by the Israeli government. I may be wrong but that’s my impression.

Contrary to Goldstone’s impression, Israel did protest the Palestinian rocketing to the Security Council — see here.

The interview continued:

Interviewer: But it was not a cause for establishing an inquiry commission by the UN about war crimes?

Goldstone: That’s correct.

Interviewer: How did you agree that in your committee serves Professor Christine Chinkin of England who already stated in an article in the Sunday Times that Israel committed war crimes, even before the beginning of the work of your commission? Is it not a prejudice?

Goldstone: Well you know, firstly it’s not a judicial inquiry. It’s a fact-finding mission, I’ve known Professor Chinkin for many years. I’ve found her to be an intelligent, sensible, even-handed person and it wasn’t an article, she signed a letter together with a number of other, I think, British academics, at the time, soon after the Operation Cast Lead began, but working with her now I’m absolutely satisfied that she’s got a completely open mind and will not exhibit any bias one way or the other but in any event she is one of four people on the committee and I don’t believe that any prima facie views she might have held at an earlier stage is going to in any way affect the findings or the recommendations in the report.

With respect, Justice Goldston’e arguments in defense of Chinkin’s impartiality are invalid. First, whether the Mission is judicial, quasi-judicial or investigative, it is required under international law and United Nations standards to be both objective and impartial. Justice Goldstone himself has repeatedly promised exactly this.

Second, the applicable test is not whether a fellow panel member is satisfied that Prof. Chinkin has an open mind. The test, rather, is whether the decision-maker is actually biased, or where there is an appearance of bias. Under either test, having expressed her views on the merits of the precise case and controversy that she is now meant to examine, Prof. Chinkin cannot be considered impartial.

Third, when a judge or fact-finder is found to be partial, the remedy is recusal or her removal. The partiality defect cannot be ignored by the fact that she is only one of four panelists. In the 2004 Sesay case in the U.N.-created Special Court of Sierra Leone, the fact that Justice Robertson was one of five judges did not mitigate his lack of impartiality, and he was disqualified.

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