Judging with an open mind

The publication of the International Association of Jewish Lawyers and Jurists starred as a major player in a decision by the House of Lords published on October 22. Five lords sitting as a court closely read the articles that appear in the publication, delved deeply into the nature of the organization and were impressed by the variety of opinions and topics dealt with by the organization and its publication. The extensive and broad ruling states, in effect, the criteria for determining a judge's lack of bias.

The story goes like this. A Palestinian woman who survived the Sabra and Chatila massacre applied for refugee status in England. She justified her request by stating that she had been active in Belgium in a lawsuit against former Israeli prime minister Ariel Sharon, had appeared on television and had been interviewed in connection with the massacre in the refugee camps in Lebanon. The woman feared that the Israeli, Lebanese or Syrian authorities would try to harm her because of her activities and opinions.

The immigration authorities in England refused the woman's request. She appealed to the courts and after a series of deliberations, the judge in the appeal, Lady Cosgrove, decided to deny her request when she found no error of judgment or any legal error in the decision by the Immigration Appeal Tribunal.

An appeal of that decision was submitted to the House of Lords. The lawyer representing the woman found on the Internet that the judge who had ruled on the appeal is a member of the International Association of Jewish Lawyers and Jurists and had been a founding partner of the Scotland branch. The court was asked to disqualify the judge due to bias.

The fact that the judge is Jewish is not what led to the request to disqualify her, but the organization of which she is a member, it was argued, is anti-Palestinian, anti-Muslim, hostile to the Palestine Liberation Organization and supports the State of Israel. According to the appellant, these things are expressed in articles published in the organization's journal, Justice.

The House of Lords ruling that discussed the appeal said the test applied in this case was whether a reasonable and fair-minded person who examined the facts would conclude that there was a possibility that the judge, in light of her membership in the organization, was prejudiced. The House of Lords ruled that the appellant's request was based on material downloaded from the organization's Web site and from the organization's journal. A reading of the organization's aims as they appear on its Web site reveals that they are very different from what was presented by the appellant, the House of Lords ruled.

The judge cites the aims of the organization, among them striving "to advance human rights everywhere - and international cooperation based on the rule of law" along with work on issues concerning the Jewish people and Israel.

The materials presented to the court in the appeal were of three sorts: articles that appear in the organization's journal, policy statements made at the United Nations Conference on Human Rights and speeches by the president of the organization.

The House of Lords examined articles that the appellants said were extreme in their negative attitude toward Islam. The court ruled that the articles had been written by senior officials in Israel who were convinced that Israel is discriminated against in the international community and especially at the UN. What they expressed was legitimate from the perspective of the writers, and this does not make them, or the organization, anti-Muslim, the court ruled.

In the matter of the policy statements, the court ruled that many of them had been made at the human rights conference in Geneva and they relate in part to lies about Israel by the Palestinian Authority.

After examining a speech by the IAJLJ's president, retired judge Hadassa Ben-Itto, at a conference of the organization in 2001, the court noted that the she had declared that she was speaking personally and that she was aware that there were differing views among the participants. She said the aim of the conference was to provide expert information about issues on the agenda and that each person would decide for himself, based on that information. Ben-Itto called for support for Israel and the United States in their war on terror and support for the organization and security forces.

The court ruled that in its opinion, the president herself "would indeed be unable to deal with the appellant's petition." However, the question, wrote the court, is whether a fair and reasonable person would think that in light of the speech or statements at the human rights conference, Judge Cosgrove was unable to deliberate on the case. In the opinion of the court, the fact the judge is a member of the International Association of Jewish Lawyers and Jurists does not indicate that she identifies with everything said in the organization.

The argument that the judge may have been influenced unconsciously by what she read in the journal and that this had affected her decision was rejected outright by the court. Judges read newspapers and journals to learn about views different from their own. Everyone, said the court, is the product of their social and educational experience. If any judges lacked such experiences, they would be lacking the human qualities required of a judge. True neutrality does not require that a judge have no positions, awareness or desires. A requirement does exist that judges know how to examine material with an open mind.

For the above reasons it was decided that Lady Cosgrove arrived at her decision on the case in question without prejudice.

The writer is the vice president of the International Association of Jewish Lawyers and Jurists .