Legal Analysis of the Pillay Commission’s 2023 Report to UNHRC
Following is a legal analysis of the 2023 report by the Pillay Commission of Inquiry on Israel, as submitted to the UN Human Rights Council.
By Dina Rovner, Legal Advisor at UN Watch
The Commission’s broad mandate includes to investigate all alleged human rights violations “in the Occupied Palestinian Territory, including East Jerusalem, and in Israel” and “all underlying root causes” of the conflict “including systematic discrimination and repression based on national, ethnic, racial, or religious hatred.” This report focuses on violations against civil society actors by “all duty bearers,” meaning Israel, the Palestinian Authority (“PA”), and Hamas. The inclusion of the PA and Hamas appears to be an attempt by the Commission to fight back at criticism that it is not objective and impartial. Unfortunately for the Commission, the addition of some discussion on PA and Hamas violations against Palestinians does not make the Commission or its report objective. The contents of the report are still decidedly one-sided.
The Commission devotes about 60% of its report to Israel, and slightly less than 40% to the Palestinian actors. Notably, in discussing the PA and Hamas, the Commission appears to justify their non-compliance to some degree, pinning it on the Israeli occupation “which poses severe challenges” to their “ability to fulfill [their] obligations as duty bearer” (paras. 3 and 82). In addition, the types of violations addressed in the two sections differ. In the Israel section, the Commission addresses alleged violations against civil society under the framework of Israeli domination and discrimination against Palestinians, laying more groundwork for a future report expected to accuse Israel of apartheid, which in the Commission’s view gets to the “root cause” of the conflict. Indeed, the Commission concludes in paragraph 69 that “the Israeli authorities’ silencing of civil society voices that challenge government policies and narrative is intrinsically linked to the goal of ensuring and enshrining the permanent occupation at the expense of the rights of the Palestinian people.”
By contrast, the Palestine section does not deal at all with the conflict or its root causes and instead concerns Palestinian violations of the civil and political rights of Palestinians unconnected to the conflict. We support and encourage the Commission to address these types of violations. However, including them in a report focused on Israel’s treatment of Palestinians confuses the issues and creates a false equivalence between Israel, which is a democracy, and the PA/Hamas which are not.
As a democracy with a sizeable Arab minority, Israel has a free press and a vibrant and diverse civil society that includes tens of pro-Palestinian NGOs. These organizations are permitted to operate freely, including by challenging Israeli government action in the Supreme Court. By contrast, Palestinians living under the PA and Hamas have none of those rights. Regrettably, this does not come across in the Commission’s report which depicts Israel in the same authoritarian terms as the PA and Hamas.
Furthermore, for a Commission mandated to address the issue of “systematic discrimination” based on “national, ethnic, racial or religious identity” as an “underlying root cause” of the conflict, we would have expected a report accusing Israel of discriminatory targeting of Palestinians, abusive rhetoric, attempt to erase Palestinian national identity, culture, and history, etc. to address these same issues on the Palestinian side. This would include attacks by the PA and Hamas against so-called Palestinian collaborators with Israel and Palestinians who engage in normalization activities with Israel, official Palestinian incitement to terrorism and antisemitism including routine denial of Jewish identity and history and rejection of the Jewish right to self-determination in Israel, and racist Palestinian laws that provide financial rewards to terrorist and prohibit land sales to Jews.
The Commission cleverly avoids these issues by framing its report under the guise of “attacks, restrictions and harassment of civil society actors.” Well, of course, there is no Israeli civil society operating in the areas under PA/Hamas jurisdiction because Israelis/Jews don’t reside there for obvious reasons—the very real threat to their personal security. By limiting the report to civil society, the Commission continues to ignore the elephant in the room—widespread Palestinian racism and incitement against Jews. Nevertheless, even under the Commission’s definition of civil society, it could and should have included a discussion on PA/Hamas treatment of Palestinians who engage in so-called “normalization” activities with Israel. Yet, this issue was not addressed.
It is also noteworthy that the Commission unilaterally expands its mandate beyond Israel and the OPT to discuss the experience of pro-Palestinian advocates in other countries, specifically the United States and Europe. Aside from the fact that this is far outside the mandate, any discussion on this topic cannot be complete without also addressing the experience of Jews and pro-Israel advocates in these countries who suffer routine threats and harassment at the hands of pro-Palestinian activists. Yet, the Commission’s report is silent on that.
This is important because while the right to freedom of expression is fundamental to any free and democratic society, it is not absolute. Article 5(1) of the International Covenant on Civil and Political Rights expressly states that no provision of the ICCPR “may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…” The Human Rights Committee also explains in its General Comment 34 on Article 19 that the permissible restriction on the right to freedom of expression in Article 19(3)(a) “for respect of the rights or reputations of others,” includes respecting the human rights of others. The ICCPR also obligates states in Article 20 to prohibit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Thus, to the extent pro-Palestinian activists around the world infringe on the human rights of Jews and Israel supporters, and to the extent that they participate in and contribute to the rise in antisemitic attacks, this violates the ICCPR. Moreover, the fact that the Commission ignored this should be concerning to all who aspire to promote and protect the universal, non-discriminatory application of international human rights.
1. Faulty Methodology
Commissions of Inquiry must conform their work to the principles and standards of the UN Charter and international law. As detailed in the OHCHR’s Guidance for Commissions of Inquiry, this includes: independence, impartiality, transparency, objectivity, and confidentiality. Here, the Commission’s evidence gathering process lacks transparency and is not independent, impartial, or objective. In Paragraph 2, the Commission details its sources only generally. While we understand the need to maintain confidentiality of individual witnesses for reasons of personal safety, this concern does not apply to all of the Commissions sources. For example, the Commission lists as a source unnamed “stakeholders and experts.” It is impossible to fully evaluate the Commission’s conclusions without knowing who these stakeholders and experts are. Likewise, the Commission does not identify any of the authors of the 20 submissions it received. Without knowing who authored these submissions, it is impossible to assess their credibility. Moreover, even if the Commission cannot identify witnesses for safety reasons, it should provide information about how these witnesses were identified, where and under what circumstances the interviews were conducted, and what steps were taken to corroborate facts and verify witness credibility. However, the report provides no information about this. Nevertheless, from the little available information about the way the Commission has conducted itself until now, including its “public hearings” in November and March, we suspect that the sources are uniformly one-sided against Israel and that no sources presenting an opposing view were considered. This was certainly the case at the “public hearings” where witnesses were pre-selected and by invitation only. Although the Commission did interview some Israelis, their views shared with the Commission were completely in line with the one-sided narrative that Israel is guilty of discrimination and apartheid. Also, the Commission appeared to accept all testimony and information received at face value and there was no opportunity for anyone other than the Commissioners to test the credibility of the witnesses. While the Commission claims in Paragraph 6 that it consulted “Israeli and Palestinian civil society actors,” based on the witnesses at the “public hearings” and the sources cited in the footnotes, it is clear that it did not consider multiple perspectives, but only material that supports the pro-Palestinian narrative. In light of the non-transparent and one-sided methodology, the Commission’s conclusions are not reliable.
2. Conclusions not Supported
Considering the amount of material the Commission claims to have reviewed and the over 100 footnotes in the report, it is surprising how many of the Commission’s conclusions are simply not supported or are based on incomplete evidence. Below are a few examples conclusions by the Commission that were no supported:
- No evidence for Israel’s terror designations of six NGOS. The Commission stated in paragraph 15 that “it is not aware of any credible evidence to support these actions.” Yet, the Commission cites only a statement by some European government officials. The Commission itself does not indicate that it examined or considered any actual evidence, and it fails to acknowledge that at least some of the evidence is classified and not public. Moreover, at least one European country—the Netherlands—stopped funding one of these six NGOs due to its ties with the PFLP, but this fact is not mentioned by the Commission.
- Israel uses administrative detention to silence and punish Palestinian civil society. On Israeli administrative detentions, the Commission concluded in paragraph 23, “Israeli authorities have been using administrative detention to remove Palestinian civil society actors from the public space to stop their activities, silence their voices and punish them, and often also to deter others.” Here, the Commission itself states that its conclusion is based on “the absence of evidence to the contrary.” Without having accessed the evidence against the detainees or having consulted with the relevant Israeli authorities, the Commission’s conclusion is pure conjecture. Moreover, the Commission did not consider the possible terror ties of these individuals.
- Salah Hamouri deportation is additional punishment for same act. The Commission suggested in paragraph 30 that Israel’s deportation of PFLP member Salah Hamouri was due to his 2008 conviction for attempting to assassinate an Israeli political and religious figure and therefore constituted “additional punishment for the same acts.” This is based on what several unidentified sources said “may have been” the case. The language “may have been” indicates this is one of several possibilities, but the Commission simply accepts it.
- Israel increasingly restricts freedom of expression for Israeli Arabs. The Commission accuses Israel in paragraph 33 of “increasingly” restricting freedom of expression for Israeli Arabs which the Commission calls “Palestinian citizens of Israel.” However, the only example provided for this is restrictions on the display of the Palestinian flag inside Israel which the Commission itself admits “is not currently illegal.” Notably, the proposed law on that issue has been intensely debated in Israel and has been put on hold in the meantime.
- Israel guilty of “cultural appropriation.” One of the most absurd accusations in the report is in paragraph 62 where the Commission accuses Israel of “cultural appropriation.” Not surprisingly given the nature of the accusation, no support is provided. Cultural appropriation is a common charge made by pro-Palestinian activists who claim that Israel steals Palestinian culinary dishes, misrepresenting them as Israeli. The Commission clearly did not conduct basic due diligence to verify the claim. This defamatory charge has no historical basis as many of the foods can be traced back to Biblical times or to Jewish communities throughout the Middle East and North Africa. Moreover, some of these foods ended up in Israel when Arab states forcibly expelled their Jewish populations following Israel’s creation in 1948. The wholesale and unquestioning adoption of this ludicrous charge is just further proof that the Commission’s is incapable of being independent and impartial.
- Israel erases Palestinian identity, culture, and history. To support its claim in paragraph 63 that Israel is trying to erase Palestinian “identity, culture and history,” the Commission cites to one right-wing protest joined by the far right Otzma Yehudit party, in which some protesters allegedly shouted “there is no Palestinian culture.” While such remarks are offensive and unproductive, they do not reflect an Israeli policy of erasing Palestinian identity, culture, and history. To the contrary, Israel fully respects Arab-Palestinian identity, culture, and history. For example, under Israeli law, Muslims and Christians are each entitled to take their religious holidays as days off. Throughout Israel, Muslim and Christian holidays are openly celebrated and respected, and some festivities receive government funding. In addition, every year, during Ramadan, Israel facilitates entry into Jerusalem for Palestinians from the West Bank and Gaza.
- Israel violates right to adequate housing. In paragraph 68, the Commission concludes Israel violates the economic, social and cultural rights of Palestinians, including the right to adequate housing. However, no specifics are provided to support this conclusion.
3. Denies Israeli Government Right to Defend Against Criticism
- The Commission denies the government of Israel the right to speak out in its own defense in the face of criticism by pro-Palestinian actors or to take action when its legitimacy is being undermined. Examples of Israeli abuse against pro-Palestinian civil society cited by the Commission in paragraph 7 include statements by Israeli officials against B’Tselem’s Hagai El-Ad when he appeared at the UN Security Council to impugn Israel and the Israeli government decision not to renew the work visa of HRW’s Omar Shakir due to his advocacy for boycotts against Israel. As noted above, Israel has a rich and vibrant civil society where even NGOs like B’Tselem, that sharply oppose the government, are permitted to operate freely, including by challenging Israeli government action in the Supreme Court. Nevertheless, like any other government, the Israeli government has every right to defend itself when it is being attacked and criticized and to point out relevant facts about its critics, such as that Hagai El-Ad was invited to the Security Council by Bolivia, a country which at the time did not have ties with Israel. Pointing this out should not be labeled by the Commission as “a smear campaign.” Also, just like any other sovereign state, Israel has no obligation to grants visas to non-citizen activists, like HRW’s Omar Shakir, who seek to undermine the country’s legitimacy. Moreover, Shakir was afforded full due process in the matter as he contested the government’s decision all the way up to the Israeli Supreme Court which upheld it on legal grounds.
4. Gaslighting Antisemitism
- At a time when there is a worrying uptick in antisemitic attacks worldwide, the Commission denies Israel and the Jewish community worldwide the right to define antisemitism and combat it. According to the FBI’s hate crime statistics, anti-Jewish crimes consistently account for more than 50% of all religion-based hate crimes in the United States. Jewish students on American college campuses suffer unprecedented levels of antisemitism with 55% reporting that they have experienced antisemitism. This antisemitism is being driven by pro-Palestinian activists on campus who target Jewish students for discrimination and harassment. According to Amcha, an organization dedicated to fighting antisemitism on campus, “No other campus identity group is routinely subject to the kinds of well-orchestrated campaigns of identity assault that Zionist and pro-Israel students have had to endure for the last several years at schools across the country.” The April 2023 report of the Center for the Study of Contemporary European Jewry noted that “Despite the investment of substantial legal, educational, and political efforts, thousands of antisemitic incidents took place across the globe in 2022, including hundreds of physical assaults.” Yet, the Commission rejects as “controversial” the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism, endorsed by 39 countries and the UN Special Rapporteur on Freedom of Religion and other international bodies, as well as its application to pro-Palestinian NGOs who paint Israel—the only Jewish state—as racist and question its legitimacy. For example, in paragraph 7, the Commission considers application of the term antisemitism, based on the IHRA definition, to the Israeli NGO “Breaking the Silence” to be abusive. Notably, Breaking the Silence supports campaigns such as BDS and the Israel apartheid slur that effectively deny the Jewish right to self-determination in Israel by characterizing Israel as an inherently racist endeavor. Similarly, in paragraph 8, the Commission attacks an Israeli government campaign against antisemitism which included fighting against foreign funding for pro-Palestinian NGOs that promote these types of delegitimization campaigns against Israel. In paragraph 10, the Commission criticizes initiatives in the US and Europe to combat antisemitic Israel boycotts as “indicating a shrinking space for freedom of expression” for pro-Palestinian activists. Significantly, the IHRA definition of antisemitism does not define as antisemitic legitimate criticism of the government of Israel. Rather, it defines as antisemitic only limited categories of criticism that uniquely single out Israel. For example, denying the Jewish people their right to self-determination, e.g., by claiming that the existence of the State of Israel is a racist endeavor or applying double standards by requiring of Israel behavior not expected or demanded of any other democratic nation. By defending wholesale the rights of pro-Palestinian activists worldwide to use any tools to advance their anti-Israel delegitimization campaigns, while criticizing all actions by the Israeli government and Jewish communities worldwide to defend against these attacks, many of which result in actual physical and economic harm, the Commission ultimately enables antisemitism.
5. Hypocrisy and Double Standards
- It is the height of irony that in a report on “restrictions and harassment of civil society,” in which the Committee lambasts the Israeli government for criticizing its civil society critics, the Commission itself attacks pro-Israel civil society. In paragraph 9, the commission accuses “private individuals and organizations,” some of which “enjoy ECOSOC accreditation,” of being dedicated to silencing pro-Palestinian civil society and implementing the Israeli government’s so-called “strategy against civil society.” While the Commission does not name these individuals and organizations, the footnotes identify two of them as the pro-Zionist Im Tirzu organization and NGO Monitor, an ECOSOC accredited NGO which seeks to ensure accountability and transparency for NGOs in the context of the Arab-Israeli conflict. While the Commission finds any criticism for pro-Palestinian civil society wholly intolerable, it has no problem defaming and delegitimizing pro-Israel organizations. This is an unacceptable double standard from a UN body that is obligated to be impartial and objective.
6. Whitewashing Terrorism
- The Commission fails to acknowledge the very real security concern Israel faces from Palestinian terrorism. So far in 2023, 20 Israeli and other civilians have been killed in terrorist attacks, including in Tel Aviv and Jerusalem. Instead, the Commission defends the six NGOs found by Israel to have ties to the PFLP. It also defends members of terrorist organizations like PFLP member Salah Hamouri, who served time in prison for his involvement in the attempted assassination of former Chief Rabbi Rabbi Ovadia Yosef. Likewise, in paragraph 50, the Commission accuses Israel of using terrorism as a pretext to harass and detain Palestinian journalists. This ignores the numerous examples of supposed Palestinian journalists abusing their press credentials to further terrorist activity. When journalist Yasser Murtaja was killed in April 2018 during the Gaza border confrontations, Hamas and the Palestinians exploited his death to launch a propaganda campaign against Israel. However, Yasser Murtaja was proven to be a veteran Hamas operative who continued his Hamas activities up until the time of his death. In February 2019, the Israeli Security Agency exposed a network of Hamas terrorists from Gaza who posed as media workers for Hamas’s al-Aqsa TV in order to recruit Hamas operatives in the West Bank and East Jerusalem. They passed covert messages to the recruits through al-Aqsa TV broadcasts. Other supposed journalists are sympathizers or associates of Hamas. Hind Khoudary, who claimed to be a reporter while attending violent confrontations at the Gaza-Israel border— where she posed smiling with men wielding industrial wire-cutters to infiltrate into Israel—was found to have incited Hamas to arrest Gaza peace activist Rami Aman, who was jailed for six months. While Israel is not above criticism, by ignoring Israel’s security concerns and failing to acknowledge the proven links between Palestinian journalists and terrorist groups, the Commission gives a free pass to terrorists.
7. Harshest Criticism Reserved for Israel
- Only Israel is accused of war crimes and systematic practices against Palestinian and threatened with criminal proceedings in the International Criminal Court. The Commission goes so far as to implicate El Al Airlines employees in an alleged war crime related to the deportation of Salah Hamouri, indicating that it is looking into the identities of these individuals so it can send the information to the ICC. Furthermore, the recommendations in the report addressed to third parties are one-sided, singling out Israel. For example, while the report calls on UN member states to “publicly denounce campaigns by State or non-State actors against [pro-Palestinian] civil society organizations in Israel, the Occupied Palestinian Territory and worldwide,” there is no corresponding call on UN Member states to publicly denounce antisemitic campaigns against Israeli or Zionist activists worldwide which have led to an increase in antisemitism and violent attacks against Jews.
Like its previous reports, this latest report underscores how the Pillay Commission is a travesty of justice. Accordingly, UN Watch calls for the termination of the COI, and has drafted this resolution and petition to commence the process.