Legal Analysis of the Pillay Commission’s 2023 Report to UNGA
Following is a legal analysis of the Pillay Commission of Inquiry’s 2023 report to the UN General Assembly.
By Dina Rovner, Legal Advisor at UN Watch
The Pillay Commission’s latest report to the General Assembly, to be presented on October 24th, focuses on the use of excessive force. In line with its approach to the mandate to date and with its previous reports, this report is overwhelmingly one-sided and biased against Israel. It accuses Israel of multiple war crimes, minimizes Israel’s security needs, refuses to acknowledge the existence of Palestinian terrorism, blames Palestinian violence on Israel, and sanitizes it by calling it protests for self-determination. In the few places where the Commission criticizes Hamas and Palestinian Islamic Jihad, it creates a complete moral equivalence between those terrorist groups and Israel, accusing them equally of war crimes. The report fails to give Israel any credit for its enormous efforts to avoid civilian casualties and omits any discussion of Hamas’s cynical use of Palestinians as human shields. The Commission’s recommendations include a call for the Secretary-General to list Israel in the annexes to his next report on children in armed conflict which is ironic considering that the Palestinian terror groups recruit and use Palestinian children as soldiers deliberately placing them in harms way.
Since the report only covers the period from May 2021 through July/August 2023, it does not address Hamas’s savage October 7th massacre of Israeli civilians. However, the press release accompanying the report continues the Commission’s complete moral equivalence between Israel and Hamas as well as the Commission’s refusal to treat Hamas as a terrorist organization and to affirm Israel’s right to self-defense. The press release refers to “the atrocities we have witnessed since 7 October” without naming any perpetrators. It then adds that “civilians and civilian objects should always be protected” and calls on “all parties to uphold their duty to protect them under international humanitarian law,” implying that Hamas and Israel are equally guilty of targeting civilians. Continuing in this vein, the Commission indicates in the next paragraph that it is collecting evidence of war crimes by “Hamas and other Palestinian armed groups and by Israeli security forces.”
The Commission’s one-sided approach turns a blind eye to the ultimate goal of Palestinian terrorism against Israel, which is not to end the occupation, but rather to eliminate the State of Israel. This is clear in the Hamas Charter, the statements of its leaders, and its barbaric slaughter of over 1300 Israelis, mostly civilians, on October 7th. By ignoring this fact, the Commission ultimately facilities Hamas-style jihadi terrorism and contributes to the perpetuation of the cycle of violence which the Commission claims it wishes to end.
1. Sources Reflect Bias
In its report, the Commission states generally that it is based on interviews, open-source research, meeting with stakeholders, public hearings, primary and secondary sources, and submissions received following a call for submissions issued on November 2, 2022 (Para 2). However, the Commission does not disclose the identities of the interviewees, stakeholders, primary sources, or parties that made submissions. While some sources are identified in the footnotes, in many instances the report simply refers generically to “document on file” with no further information. Moreover, aside from publicly available news articles by Israeli media and some Israeli government publications, all of the other citations are to pro-Palestinian NGOs—like B’Tselem, Al Haq, DCI Palestine, Adalah, AL Mezan, etc.—which promote the narrative that Israel is guilty of apartheid and commits war crimes. This underscores the Commission’s bias and supports the conclusion that rather than conducting an impartial investigation, the Commission is merely looking for material to support its already predetermined conclusions.
2. Minimizes Security Threat to Israel
The Commission minimizes the security threat to Israel from Palestinian terrorism. It implies that terrorism is not a valid justification for Israeli security measures since the term has no international law definition. The Commission then proceeds to place quotation marks around the word terrorism every time it appears in the report (g., Paras. 5, 23, 24, 31, 32). While terrorism may not have an internationally agreed upon meaning, it is defined in many countries’ domestic law, including in Israel. Moreover, the term terrorism is meant to convey the intent and objective of the perpetrator, but the underlying acts of violence are crimes warranting defensive security measures whether categorized as terrorism or not. Even the OHCHR website recognizes that “As a minimum, Terrorism involves the intimidation or coercion of populations or governments through the threat or perpetration of violence, causing death, serious injury or the taking of hostages.” In its conclusions, Commission states outright that Israeli security measures are not justified for “pre-emption or deterrence” (Para 76). By denying Israel’s right to defend against terrorism, the Commission ultimately strengthens the terrorist organizations and encourages more attacks.
3. Denies Application of IHL to West Bank
The Commission’s absolute rejection of the application of International Humanitarian Law in the West Bank (Paras 5, 21) is used to justify some of its most extreme accusations against Israel. However, whether or not IHL applies in a given situation is not dependent on the geographical location (West Bank or Gaza), but on the fact that an international armed conflict exists between Israel and the terrorist groups—Hamas, Palestinian Islamic Jihad, and others—planning and carrying out attacks from both places, and the particular nature of each incident. The UN’s Palmer Commission already found that an international armed conflict exists between Israel and the terrorist groups operating in Gaza. The situation is no different in the West Bank where the same actors are involved. Moreover, it is known that the Gaza terrorist groups instruct their operatives in the West Bank. It seems as though the Commission deliberately creates an artificial legal distinction between the West Bank and Gaza so that it can apply the stricter standards of international human rights law to Israel’s counter-terrorism operations in the West Bank and more easily concoct Israeli violations. The Commission’s Gaza/West Bank dichotomy is so contrived that it leads the Commission to condemn Israel’s use of life-saving technology solely because the Commission considers this to be evidence that Israel is applying an IHL rather than an international human rights law approach (Para. 35). For example, the Commission criticizes Israel’s use of helicopters to rescue its personnel after they came under attack by Palestinian armed groups who had deployed IEDs. It seems the Commission would have preferred Israel to leave its wounded soldiers in the field. Likewise, the Commission criticizes Israel’s use of an armed drone to kill three terrorists from Jenin who had been involved in several terror attacks, including just before they were killed. Surely, the use of the drone protected civilian lives, but the Commission fails to take this into account.
4. Broad Conclusions, Not Supported
The Commission makes sweeping conclusions that have no basis. For example, in Paragraph 72, the Commission states that Israel’s application of IHL standards to law enforcement operations in the West Bank “appears intended to attribute the concept of direct participation in hostilities to all Palestinian civilians engaged in any form of oppositional activities, including legitimate peaceful protest.” Even though, as explained, there is a perfectly sound legal rationale for Israel’s decisions on when to apply IHL rules vs. law enforcement rules, the Commission is so set on indicting Israel that it manipulates the facts and law to find Israel guilty of a nefarious intent of treating peaceful Palestinian protesters as militants. The Commission continues in Paragraph 73 to broadly conclude that “the increasing use of force in Israeli security forces operations in the West Bank perpetuate cycles of protraction of conflict, fuelling endless killings and harm.” Again, in Paragraph 78, the Commission concludes that “Israel’s use of excessive force…perpetuates a cycle of violence intended to maintain Israel’s occupation.” No support is provided for these non-sequiturs. Thus, the Commission completely ignores the existence of a conflict and exempts the Palestinian Authority and Hamas of any culpability for the lack of peace, lack of Palestinian self-determination, fragmentation of Palestinian society, and repeated cycles of violence.
5. Misapplies IHL Rule of Precaution
In citing the IHL Rule of Precaution (Article 57, Additional Protocol I to the Geneva Conventions), the Commission conveniently omits the crucial qualifying phrase that effective advance warnings should be given “unless circumstances do not permit” (Para. 9). Thus, the Commission appears to hold Israel to a higher standard than that required by the Geneva Conventions. The ICRC commentary suggests that warnings are not required when “the element of surprise in the attack is a condition of its success.” Although Israel takes its precaution obligation extremely seriously and frequently warns Palestinian civilians of impending attacks in different ways (text messages, phone calls, roof knocking), there are situations where warnings could enable the target to escape. Yet, the Commission does not take this into account. Thus, the Commission finds Israel responsible for civilian deaths in the course of its targeted killing of Palestinian Islamic Jihad leader Tariq Ezz al-Din on May 9, 2023 during Israel’s Operation Shield and Arrow, noting the lack of a warning (Paras 60-61) and ignoring the critical tactical importance of the element of surprise in such an attack. Indeed 22 of the 33 fatalities in that operation were terrorist fighters. Of the 11 non-combatants, seven were family members of the fighters, two were neighbors, and two were killed by PIJ rockets that misfired, confirming Israel’s restraint. On this operation Col. Richard Kemp commented that “no other military is capable of defending its people with the ferocity and precision the IDF has been showing.” Moreover, the civilian deaths prove PIJ’s use of civilians as human shields—a war crime not addressed by the Commission. In addition to that incident, the Commission also finds Israel responsible for not warning Gaza residents of its strikes on Hamas tunnels on May 16, 2021 (Paras 55-56). Unfortunately, in that case, the IDF did not anticipate the collapse of nearby residential buildings which was apparently caused by Hamas’s underground activity and therefore it did not warn the residents. It had conducted similar bombings in Gaza without collapsing buildings. In both cases, the Gaza terrorist groups—PIJ and Hamas—are ultimately responsible for the civilian deaths due to the location of their senior personnel and terrorist infrastructure in close proximity to civilians, yet the Commission finds a way to blame Israel.
6. Whitewashes Palestinian Violence
The Commission whitewashes Palestinian violence by reframing it as “demonstrations” or “protests” that “assert their [Palestinian] right to self-determination” (Paras. 12, 66). The words protests and demonstrations imply peaceful gatherings devoid of weapons. However, the examples given by the COI were far from peaceful—riots during the May 2021 Israel/Hamas war which saw four people killed, and massive property damage and violent confrontations at the Al Aqsa Mosque during Ramadan in April 2022 and April 2023 in which Palestinians desecrated the mosque by stockpiling stones and fireworks which were used against both Israeli police and Jewish worshippers. Yet, the Commission is dismissive of Palestinian violence. For example, the Commission notes that “some Palestinian protesters…have thrown stones at armed ISF during demonstrations,” but adds that it “understands most cases of stone-throwing in these contexts to be aimed at expressing protest, including as a result of Israeli security forces soldiers entering places of worship…” (Para 19). The Commission also asserts that “Stone-throwing does not normally pose an imminent threat to the lives of heavily armed and armoured military forces.” No sources are provided for these conclusions. In May 2020, an Israeli soldier was killed by a Palestinian rock thrower. This is not an isolated incident. In 2018, two Israeli soldiers were injured in separate stone throwing incidents in May and December, one critically. By reframing these violent incidents as mere protests and demonstrations to assert a legitimate right of self-determination, the Commission legitimizes the violent and dangerous Palestinian conduct during these gatherings.
7. Wrongly Measures Lawfulness of Israeli Action Using Results Test
Throughout the report, the Commission wrongly uses a results test—looking at the numbers of killed or injured or arrested—to assess the lawfulness of Israeli conduct. Thus, the Commission rules Israeli attacks on Hamas targets in Gaza disproportionate under international humanitarian law based on the amount of “damage to civilian objects and the number of casualties” (Paras. 57, 63). This is a misapplication of the IHL proportionality rule which is a prospective assessment (not after the fact) that considers whether “expected civilian casualties will be excessive in relation to the anticipated military advantage gained.” Also in the context of the largescale riots in mixed Arab/Jewish cities in Israel during the May 2021 conflict, the Commission determines lawfulness purely based on results—how many Jews vs. Arabs were arrested and indicted—without considering any other factors. Indeed, data shows the damage from the Arab riots far surpassed that from the Jewish riots. For example, 10 synagogues, 112 Jewish homes, and 849 Jewish cars were torched. By contrast, 0 mosques, 1 Arab home (mistakenly attacked by Arabs), and 13 Arab cars were torched. There were also 5,018 instances of stone-throwing against uninvolved Jews and only 41 such instances against uninvolved Arabs. Thus, there is a logical explanation for the higher number of arrests and indictments against Arabs which is completely ignored by the Commission because it doesn’t fit its narrative.
8. Creates False Equivalence Between Israel and Hamas/PIJ
The Commission treats Israel and the terrorist groups in Gaza, including Hamas and Palestinian Islamic Jihad, as equal actors both of whom commit war crimes “the Commission considers that Israeli authorities and Palestinian armed groups have failed to take effective precautionary measures to avoid civilian casualties wherever possible.” (Para 63). This approach ignores that Israel is a sovereign state which respects international law while these terrorist groups are non-state armed groups which completely flout international law by using the civilian population as human shields—itself a war crime completely ignored by the Commission. Indeed, the Gaza terror groups store weapons and operate from within civilian areas, often from in or near protected structures like schools, mosques, and medical facilities. Thus, while Israel makes every effort to avoid civilian casualties, by giving warnings when possible and conducting pinpointed surgical strikes to limit collateral damage, Hamas and PIJ deliberately endanger civilians. The Commission’s allegation that Israel commits a war crime because it “intentionally” destroys civilian infrastructure (Para 33) disregards Hamas and PIJ use of these structures as human shields. Significantly, even civilian objects lose their protected status if used for military purposes.
9. Fails to Give Credit to Israel for Efforts to Minimize Harm
The Commission also completely ignores the enormous efforts by Israel to minimize harm to civilians, leading to the Commission’s absurd accusation that Israel is guilty of war crimes even when it conducts a highly surgical operation which results in no civilian deaths, such as in Jenin in July 2023. Palestinian Islamic Jihad itself confirmed the terrorist affiliation of the fighters killed in that operation. The fact that four or five of these terrorist fighters were under the age of 18, according to different sources, does not reflect a violation by Israel, but rather a violation by the Palestinian terrorist groups which recruit and train children as combatants. Israel was able to accomplish this impressive result by warning civilians to stay indoors and deploying sophisticated weapons to boost real time intelligence gathering and ensure targeting accuracy. Regrettably, some civilian infrastructure was damaged during the operation, but this was because of violations by the terrorist groups who stored weapons and explosives in civilian structures, including IEDs under the roads and weapons near a mosque. Instead of commending Israel for minimizing harm to civilians, the Commission accuses Israel of war crimes. It’s hard to take the Commission’s insistence that it is not biased seriously when it never gives Israel any credit.
10. Blames Israel for Palestinian Terrorism
According to the Commission, it is Israel’s “increasing use of force” that “trigger protests, encourage greater armed resistance and lead to further attacks by Palestinian armed groups against Israelis or Israeli security forces” (Para 73). This a classic case of victim blaming whereby the Commission justifies Palestinian terror attacks against Israeli civilians as an expected response to Israeli security operations rather than the other way around. At the same time, it ignores the existence of a conflict and absolves the Palestinian Authority, Hamas, PIJ, and other terrorist groups of liability for these attacks. The Commission also holds Israel primarily accountable for any hostilities in Gaza, which it says are “directly linked to the larger context of the Israeli occupation and the blockade of Gaza” (Para 49). In reaching this conclusion, the Commission completely disregards murderous Hamas incitement to terrorism. While it does mention indiscriminate rocket attacks against Israelis by “Palestinian armed groups” without calling it terrorism, the Commission does not hold Hamas responsible for escalations or acknowledge Israel’s right to defend against such attacks. For more information about the legality of Israel’s Gaza blockade see UN Watch’s response to Claim 6 in our Item 7 Claims and Responses page. The Commission also ignores Israel’s withdrawal of all civilian and military personnel from Gaza in 2005. Regrettably, the Gaza withdrawal did not bring peace, but paved the way for Hamas’s takeover of the Gaza Strip. In the intervening years, rather than investing in creating infrastructure and developing the economy for the benefit of the Palestinian citizens of Gaza, Hamas invested billions of dollars in building terrorist infrastructure, including underground tunnels intended for ambushing and kidnapping Israeli soldiers, and stockpiling and developing longer-range missiles to reach further into Israeli territory. By placing the blame exclusively on Israel, the Commission also gives a free pass to Hamas, not only for its terrorist attacks against Israeli civilians in violation of international law, but also for its complete rejection of the Jewish right to self-determination in any part of Israel. The Hamas Charter expressly states that the only solution to the Palestinian question is “Jihad.” Hamas recently reaffirmed this position in its 2017 policy document where it pledged to “liberate Palestine and confront the Zionist project.”
11. Misrepresents Cause of May 2021 Violence
The Commission faults only Israel for the outbreak of violence in May 2021, stating “The escalation was triggered by protests against occupation policies such as evictions and dispossession in East Jerusalem” (Para. 54). This characterization ignores that Hamas initiated the actual fighting by firing rockets at Jerusalem on Israel’s Jerusalem Day without being threatened or attacked first by Israel in violation of the IHL rule of necessity. As the party attacked, Israel had a legal right to defend itself. This claim by the Commission also ignores various steps by Israel to de-escalate the tensions in Jerusalem prior to the Hamas rocket attacks, including (1) requesting the Israeli Supreme Court to delay its hearing in the civil Sheikh Jarrah property dispute case; (2) removing police barricades outside the Damascus Gate which had been intended to prevent violence; (3) prohibiting Jews from entering the Temple Mount; and (4) re-routing and then canceling the annual Jerusalem-Day flag march. Moreover, this statement ignores the wider political context, including the internal power struggle between Hamas and Fatah, and Hamas’s desire to gain legitimacy among Palestinians after Abbas—then in the 15th year of his four-year term—had just cancelled the first round of Palestinian national elections since 2006.
12. Ignores Palestinian Incitement
While the Commission criticizes various statements by Israeli political leaders concerning the use of force against Palestinian terrorists in response to terror attacks, it completely ignores widespread murderous incitement by Palestinian Authority and Hamas officials. Significantly, both PA and Hamas officials endorsed and incited the increased violence in April and May 2021 that preceded the military conflict in Gaza. For example:
- PA President Mahmoud Abbas: “We salute our people in Jerusalem for their resolve against the Israeli plans to take control of the holy city.”
- Fatah Central Committee member Hussein al-Sheikh: Stated that events in East Jerusalem were the Palestinians’ “heroic response” to the real battle for the defense of Jerusalem and the holy sites.
- Hamas spokesman Abde Latif al Qanoa: “Palestinian resistance forces in the Strip are ready to block any aggression and set the tone of the response to any fire and aggression from Israel…The Palestinian people and resistance forces support and identify with the Palestinians in Jerusalem.”
- Hamas co-founder Mahmoud al-Zahar: “After a long series of protests and demonstrations, we have reached the conclusion that without weapons, we cannot liberate our land, protect our holy sites, bringing back our people to their land or maintain our dignity.”
- Palestinian Islamic Jihad released a statement: “The Al-Aqsa Mosque is a red line, and the Palestinian people stand behind Al-Aqsa and the Palestinians in Jerusalem and will not allow settlers to harm the holiness of the mosque…The resistance forces will respond to any aggression and provide defense to the Palestinian people.”