Navy Pillay, Chair, of the Independent International Commission of Inquiry on the Occupied Palestinian Territory at a press conference. 14 June 2022. UN Photo / Jean Marc Ferré

Legal Analysis of Pillay Commission’s 2024 Report to Human Rights Council

Following is the submission by UN Watch to the Pillay Commission of Inquiry analying its June 2024 report to the Human Rights Council. We are awaiting the Commission’s reply.

By Dina Rovner, Legal Advisor at UN Watch

In its first report since Hamas’s mass atrocities in Israel on October 7 and Israel’s defensive military response, the Pillay Commission attempts to make itself appear balanced by including a section on the Hamas atrocities. However, the Commission’s discussion of those events only highlights its bias against Israel and confirms that it is not an impartial mechanism.

In its report, the Commission creates a perverse moral equivalence between Israel and Hamas, treating them on completely equal footing. Nowhere in the report does the Commission acknowledge or consider that Hamas is a terrorist organization which, by definition, flouts the rule of law, while Israel is a law-abiding democracy whose military operates according to international law with processes and mechanisms to address the legality of strikes in advance, as well as complaints after the fact. By this false moral equivalence, the Commission applies different standards to Israel than to any other democracy engaged in a just war of self-defense, denies Israel’s right to self-defense, and whitewashes Hamas terrorism. For example:

1. Commission ignores Israeli security needs while blaming Israel both for Hamas October 7 attack and Israel’s military response in Gaza.

The Commission insists that both the Hamas October 7 attack and Israel’s response “should not be seen in isolation” as they were preceded by “decades of violence, unlawful occupation and Israel’s denial of the Palestinians’ right to self-determination,” effectively holding Israel accountable for all of it. (Paras. 6, 89). The Commission never even acknowledges Israel’s right to self-defense and security from Hamas attacks. At the same time, this framing completely excuses the Palestinians of any liability for their situation, notwithstanding their continuous rejection of Israel’s right to exist as a Jewish state, repeated refusal to accept generous peace offers, and frequent launching of wars and terrorist campaigns against Israel.

2. Report blames Israel for failure to protect Israelis on October 7, yet absolves Hamas of any responsibility towards Gazan civilians.

While the report lambasts Israel for its October 7 failures—Israel “failed to protect civilians in southern Israel on almost every front” (Para. 96), it does not hold Hamas accountable for neglecting to protect Gazans by diverting billions of dollars of international aid funds for its terrorist infrastructure, declining to construct bomb shelters for Gazans and, at the same time, depriving Palestinians of basic necessities. It also does not blame Hamas for hoarding essential provisions like food and fuel or for appropriating incoming humanitarian aid for its fighters at the expense of Palestinian civilians in desperate need. Israel is the sole party blamed for the humanitarian crisis in Gaza. In blaming only Israel, the Commission enables Hamas terrorism at the expense of Palestinian civilians’ basic needs. In October 2023, politburo member Moussa Abu Marzouk defended Hamas diversion of resources for its terror-tunnel project to protect the Hamas fighters saying it is not Hamas’s job to protect Palestinians in Gaza because “seventy-five percent of the population of Gaza are refugees, and it is the UN’s responsibility to protect them.”

Other than the October 7 attack itself, the Commission does not hold Hamas accountable for any other violations against Israelis or Palestinians. Aside from one line calling on Hamas to stop indiscriminately firing rockets and other weapons at Israeli civilians (Para. 109), the Commission does not discuss this violation which has been ongoing for more than 20 years. In this regard, the Commission does not mention that approximately 12% of the terrorist rockets indiscriminately fired into Israel, have fallen short in Gaza, killing and injuring Gazans. Famously, the October 17th Al Ahli hospital incident, initially blamed on Israel, was caused by a failed Palestinian Islamic Jihad rocket launch. Moreover, while the Commission does mention “reports” and “allegations” of Hamas use of human shields (Para. 47) and calls on Hamas to “avoid” such activity (Para 109), it does not hold Hamas accountable for death and injury to Palestinian civilians resulting from this practice. Rather, the Commission holds Israel solely responsible for all Palestinian deaths in Gaza. In doing so, the Commission ignores admissions by Hamas’s own leaders that it uses Palestinian civilians as human shields, like the October 24 statement by Hamas politburo member Ghazi Hamad that Hamas is “proud to sacrifice martyrs,” or the Abu Marzouk statement above that the tunnels are only “to protect us,” i.e., to protect the Hamas fighters, not civilians, or the more recent comments by Hamas Gaza leader Yahya Sinwar, as reported in the Wall Street Journal, that civilian deaths are “necessary sacrifices.”

The Commission’s criticism of Israel’s October 7 failures is particularly ironic considering the Council’s previous Commission of Inquiry on the 2018 March of Return riots whitewashed those events as “peaceful protests” to which Israel responded with “disproportionate force” and effectively called on Israel to stand down. At the time, Col. Richard Kemp, speaking at an official UN Side Event, explained that Hamas’s intention had been “to get through the border fence … to send people in very large numbers into Israel with the intention of getting into the Israeli communities – places like Nahal Oz which is a few hundred meters from the border – and slaughtering Israeli civilians and abducting Israeli civilians and torturing them. That’s what their intention was…” Col. Kemp added that the Commission’s report “played into Hamas’s hands” and “encourage[ed] Hamas to carry out more acts of terrorism…” UN Watch had also warned then that the March of Return Commission’s approach would lead to “the death of innocent Israelis,” which is exactly what we saw happen on October 7 played out in the exact way Col. Kemp had described.

3. Israel and Hamas both guilty of sexual crimes, but Israeli violations were “ordered” and “condoned,” while Hamas violations were not.

The Commission is unable to just condemn Hamas for its horrific October 7 sexual crimes against Israeli men and women without also accusing Israel of engaging in sexual violence against Palestinian men and women. Even though Hamas’s crimes are significantly graver and Israel had a security justification for some of its actions, the Commission is harsher on Israel.

Israeli Crimes: Forcing men and boys to strip down to their underwear during evacuations and arrests, and subjecting them to interrogations, verbal and physical abuse, and public humiliation, which was filmed and photographed; and targeting Palestinian women for psychological violence and online sexual harassment to humiliate them. (Paras. 65-69).

Commission’s Finding on Israel: The harassment and psychological violence against Palestinian women, was “intended to humiliate and degrade the Palestinian population as a whole” (Para 67), noting “aggravating factors,” such as “the specific social and normative context,” including “strong cultural and religious sensitivities linked to privacy, nudity, and the significance of the veil…” and the fact that “humiliating digital content disseminated online…is extremely difficult to  remove from the internet.” (Para 68). Furthermore, because the male stripping was filmed, photographed, and posted online using similar methods in multiple locations, it was “either ordered or condoned” (Para 69). Similarly, “the frequency, prevalence and severity of sexual and gender-based crimes perpetrated against Palestinians since 7 October across the OPT indicate that specific forms of SGBV are part of ISF operating procedures” and “were either ordered or condoned by Israeli authorities.” (Para 103).

Hamas Crimes: Violent sexual assaults against both men and women in the course of killing or abducting them to Gaza in multiple locations; publicly humiliating captives (both living and dead) by treating them as “trophies” and “objects,” and parading them on the streets of Gaza; and desecrating the bodies of both men and women, including by undressing them and displaying them in public “as a means of humiliation and disrespect.” (Paras. 24-30). We note that despite the March 2024 findings of Pramila Patten, UN Special Representative on Sexual Violence in Conflict, that there were “reasonable grounds to believe” that “rape and gang rape” had occurred in several locations on October 7, the Commission made no findings regarding rape, stating it was unable to  “independently verify such allegations.” (Para. 26).

Commission’s Finding on Hamas: Despite the gravity of the Hamas crimes against Israelis, the fact that they were committed in similar ways in multiple locations, the fact that they were filmed and photographed, and the strong cultural and religious sensitivities of Jews linked to privacy, nudity, and the sanctity of the human body, the Commission fails to note any “aggravating factors” for Hamas’s crimes and does not find that these crimes were “intended to humiliate the Israeli population as a whole.” Moreover, despite extensive video footage taken by Hamas terrorists and published online, the Commission fails to make a finding that these brutal acts were “either ordered or condoned.” Counterintuitively, the Commission concludes the opposite—“The Commission did not find credible evidence, however, that militants received orders to commit sexual violence and so it was unable to make conclusions on this issue.” (Para 95).

4. Israel guilty of crimes against humanity; Hamas is not.

The Commission ultimately concludes that both Israel and Hamas are guilty of war crimes and violations of International Humanitarian Law and International Human Rights Law. (Paras. 73-85). However, it reserves its worst condemnation only for Israel, which it finds to have committed “the crimes against humanity of extermination; murder; gender persecution targeting Palestinian men and boys; forcible transfer; and torture and inhuman and cruel treatment were committed.” (Para. 84). In reaching this conclusion, the Commission ignores evidence concerning Israel’s extensive efforts to minimize civilian casualties in Gaza, Israel’s security considerations, Israel’s own investigations into various incidents, and willingness to change military procedures and protocols. Likewise, the Commission ignores that Hamas officials’ public statements together with evidence from October 7 prove that the attack, which included murder, torture, sexual violence, hostage-taking, and desecration of dead bodies, was a widespread and systematic attack against the Israeli civilian population as part of the Hamas Charter goal of pursuing jihad to liberate Palestine. Therefore, Hamas’s October 7 crimes clearly constituted crimes against humanity.

5. One-sided demands of Israel.

Israel must “immediately end attacks” and “implement a ceasefire,” while no such demands are directed towards Hamas. (Para. 108). The Commission does not demand that Hamas lay down its arms and surrender which, together with a release of all the hostages, would immediately end the fighting. (Para 109). The Commission also demands that Israel ensure its rules of engagement comply with international standards, and even publish these rules of engagement—not common practice—a demand that would ultimately benefit Hamas while endangering Israeli troops. At the same time, the Commission makes no such demands of Hamas, which as a terrorist organization, by definition, defies all international standards in the conduct of hostilities.

6. Both Israel AND Hamas should conduct impartial investigations of crimes committed in Israel on October 7.

Shockingly, the Commission treats Hamas as a fully legitimate entity, rather than a terrorist group which routinely violates the basic rights and freedoms of Gazans, including by torturing and executing its opponents without affording them fair trials, when the Commission calls on Hamas to “thoroughly and impartially investigate and prosecute violations of international law, including those committed on and since 7 October 2023…” (Para. 109). The Commission goes on to imply that Israel, which is a law-abiding democracy, needs to be reminded like Hamas to comply with its obligations when it similarly calls upon Israel to “ensure impartial and fair investigations, aligned with the principles of IHRL, of crimes committed on 7 October…” (Para. 108).

7. One-sided recommendations to the UN Security Council and the UN Secretary-General to impugn and isolate Israel while giving a free pass to Hamas.

The Commission calls on the Security Council to “demand the Government of Israel” under Chapter VII of the UN Charter “immediately implement a ceasefire,” but contains no such demand related to Hamas. (Para. 111). The Commission then calls on the Secretary-General to “list Israel in the annexes of the next annual report on CAAC [children and armed conflict]” (Para. 112), creating a false moral equivalence between Israel, a law-abiding democracy which has aborted strikes to avoid harming children, and notorious terrorist groups like ISIS and the Taliban. The Commission does not request the Secretary General to add Hamas to the list, even though Hamas uses child soldiers, deliberately endangers children as part of its human shield strategy, and kidnapped, raped, and murdered Israeli children on October 7. We note that in his own perverse moral equivalence, the Secretary-General ultimately added the IDF, Hamas, and Palestinian Islamic Jihad to the annexes.

8. Hamas Health Ministry casualty figures taken at face value.

When detailing the Israeli October 7 casualties, the Commission provides detailed information on the numbers of civilians vs. military killed citing to official Israeli government sources. (Para. 9). However, when it comes to the Gaza casualty data, the Commission provides only rough estimates that do not distinguish between civilians and combatants, citing to the Hamas Ministry of Health. (Para. 39). The Commission does not advise readers that these numbers have not been, and cannot be, independently confirmed. The report states that “by May” fatalities “exceeded 34,800,” listing the number of “identified” deaths as 24,682. Yet it provides no explanation about why there is a discrepancy of more 10,000 between the two numbers, fails to inform the reader that the UN significantly reduced its fatality count on May 8, and omits any discussion of the many inconsistencies found in the Hamas data, as reported most recently by the Associated Press. (Para 39). The report also does not mention that, according to Israel, the Hamas fatality number includes 15,000 combatants.

9. Conclusions Based on Misinformation.

For example, the Commission falsely claims IDF forces employed the so-called “Hannibal Directive” to prevent Israelis from being taken hostage on October 7, even at the expense of shooting and killing them (Paras 35-36). It states that the Commission “verified information” resulting in the killing of “up to 14 Israeli civilians.” However, the Hannibal protocol was cancelled back in 2017 by General Gadi Eisenkot, currently a member of the War Cabinet. Moreover, at least two of the examples provided by the Commission are grossly misrepresented. In one case, the IDF found that Israeli civilian Efrat Katz was accidentally killed by Israeli helicopter fire on October 7 when the helicopter shot at a vehicle with terrorists, not knowing that civilian hostages were also present. In another case cited by the Commission, an IDF investigation cleared the tank commander of wrongdoing in a complex hostage situation where he had ordered the tank to shoot even at the risk of civilian casualties. Ultimately, the IDF found that at least 13 of the 14 civilians killed in that incident were killed by small arms fire, and not by the tank shells.

10. Conclusions Fail to Consider Current Data.

In Paragraph 102, the Commission concludes that “Israel has used starvation as a method of war.”  This is largely based on Defense Minister Yoav Gallant’s October 9 declaration of a “total siege” and other public statements by Israeli officials (Paras 49-51). However, as the Commission itself acknowledges, there was only a complete closure for less than two weeks. By October 21, the Rafah crossing between Gaza and Egypt had been opened. Notably, the Commission ignores Hamas culpability for the situation, including its own October 7 attacks which damaged nine out of ten electricity lines from Israel to Gaza, one of the three water pipes from Israel to Gaza, and the Erez crossing. It also ignores continuous fire towards the Kerem Shalom crossing on and after October 7. Moreover, the Commission fails to factor in the significant increase in humanitarian aid entering the Gaza Strip in recent months, including the opening of multiple channels for entry of aid (Ashdod Port, Erez Crossing, additional crossing points in the North, airdrops, etc.), as detailed on the COGAT website. A footnote also indicates the Commission’s reliance on the now discredited February 2024 IPC report finding that “1.1 million people face catastrophic levels of food insecurity.” (Footnote 53). While the Commission cites to the IPC report, it ignores research from the Israeli Health Ministry criticizing that report as unreliable because it was based on small sample sizes and undisclosed data. The Israeli Health Ministry blasted the IPC report for engaging in “a consistent effort to ignore… a significant decline in the war’s intensity and a significant increase in the humanitarian effort and the flow of aid.” Moreover, in May 2024, the IPC’s own Famine Review Committee issued a report stating that it could not endorse the famine classification in the IPC’s earlier report, and specifically noted the increase in food trucks entering Gaza since the earlier report.

UN Watch