Legal Analysis of the Pillay Commission’s Report to the General Assembly

Following is a legal analysis of the Pillay Commission of Inquiry’s 2024 report to the UN General Assembly.

By Dina Rovner, Legal Advisor at UN Watch

The UN’s biased Pillay Commission of Inquiry is about to present its third report to the UN General Assembly (it’s sixth report in total). Not surprisingly, the Commission accuses Israel of the worst possible crimes, including war crimes and crimes against humanity. Although the report does not expressly charge Israel with genocide, it is intended to buttress the factual and legal record against Israel on this issue. The Commission itself stated that “the investigative findings contained in the present report will be used in cases that are before the Court [ICJ], including the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).” (Para 5). See Timeline: How the Pillay Commission Instigated the ICJ Assault on Israel.

As with its prior reports, this report whitewashes and legitimizes Hamas and denies Israel’s right to self-defense and security. Some of the deficiencies in the report are discussed below.

Faulty Methodology

The Commission admitted that it did not have cooperation from the State of Israel and, thus, did not have access to classified information concerning the military justifications for Israel’s operations inside Gaza hospitals. Moreover, Israel has no obligation to disclose such information which could compromise its military advantage. Thus, the Commission’s factual analysis was based solely on a one-sided record from mostly unidentified sources, making it impossible to reach reliable factual or legal conclusions. The Commission’s sources included—”confidential information on file and documented by the Commission from victims, witnesses and other reliable sources” (FN 7), one-sided UN reports, unspecified “human rights organizations,” unspecified “investigative reports,” and biased media sources (FN 22).

Critical Facts Omitted

The main focus of the report is condemning Israel’s attacks on Palestinian medical facilities and personnel in Gaza. The report included only one short paragraph addressing Hamas’ attacks on Israeli medical facilities and personnel on and shortly after October 7th. Regrettably, the Commission omitted critical publicly available facts that contradict its anti-Israel narrative and impact the analysis, including:

  • Hamas’ Use of Medical Facilities for Military Operations: It is well-established that medical facilities lose protected status under International Humanitarian Law when used for military purposes. Nevertheless, the Commission omitted a comprehensive analysis of Hamas’s well-documented use of Gaza’s hospitals and other medical infrastructure as bases and command centers for its terrorist operations, turning these facilities into legitimate military targets under International Humanitarian Law. Instead, the Commission treated this as an “unsubstantiated claim” by “Israeli security forces” (Para 27) which was denied by both Hamas and “senior medical personnel” at the hospitals who were likely affiliated with or beholden to Hamas. The Commission did not consider testimony by other witnesses such as Ahmed Kahlot, the Director of Gaza’s Kamal Adwan hospital, and unaffiliated third parties, including Baxtiyar Baram from Kurdistan, former USAID official Dave Harden, and a UK doctor and an Italian journalist both of whom had worked at Shifa Hospital, confirming Hamas’s use of hospitals for military purposes. For more information on this see UN Watch response to Claim 46: Israel Targets Hospitals in Violation of International Law in its Post-October 7th War.
  • Israel’s Medical Response: The Commission ignored evidence about Israel’s extensive medical response in Gaza which contradicts the Commission’s main claim that the attacks on Gaza hospitals are part of an “ongoing Israeli attack against the Palestinian people.” Israel’s comprehensive medical response includes facilitating the entry of over 25,000 tons of medical supplies into the Gaza Strip, coordinating evacuations of ill and wounded civilians for treatment in third countries, facilitating the establishment of field hospitals, and carrying out daily humanitarian assessments with healthcare professionals and representatives of international organizations. In fact, as Israel has stated from day one, it’s attacks in Gaza, including in Gazan hospitals, are directed at Hamas, not at the Palestinian people.
  • Israeli Precautions Comply with IHL: The Commission dismisses Israel’s extensive precautions during its operations in hospitals to avoid and minimize harm to innocent civilians in compliance with International Humanitarian Law. These precautions included providing warnings, calling evacuations, facilitating evacuations, maintaining regular contact with hospital authorities, bringing medical teams with Arabic speakers, and providing medical supplies. Yet, without access to Israeli data and based purely on the Commission’s unidentified witnesses and sources, the Commission found these precautions to be insufficient (Para 19). For more information on this see UN Watch response to Claim 46: Israel Targets Hospitals in Violation of International Law in its Post-October 7th War.
  • Gaza Hospital Staff Double as Hamas Operatives: The Commission did not acknowledge evidence that Gaza hospital staff double as Hamas militants. According to the December 2023 confession of Kamal Adwan hospital head Ahmed Kahlot, he himself was a Hamas commander since 2010. He stated that other hospital staff—doctors, nurses, paramedics, clerks, and other staff—were also Hamas military operatives. Likewise, Palestinian Islamic Jihad spokesman Tarik Salame Uda Abu admitted that “Gaza terror groups use all of the hospitals in the Gaza Strip.”

Reliance on Unverified Claims and Misinformation

  • Mass Graves at Hospitals: The Commission repeats the Hamas “Media Office” lie blaming Israel for “more than 500 bodies” which “were found in mass graves located on hospital grounds, including at Shifa’ and Nasr hospitals” (Para 22). While the Commission notes that Israel “denied burying bodies in mass graves,” it omits mention of evidence indicating that the mass graves had been dug by the Palestinians themselves to bury their own dead prior to Israeli operations in the area.
  • Death of a 5-Year-Old Gazan Girl: Based only on its unidentified witnesses and sources, the Commission blames Israel for the tragic death of a five-year-old Gazan girl and her family, claiming Israeli forces attacked the family car and the medics dispatched to save them (Para 11). The Commission fails to mention a statement by Israel that its preliminary investigation showed that Israeli troops were not operating in the area at the time.

Hamas Treated as More Credible Than IDF

It is also noted that the Commission treated statements by Hamas as more authoritative than statements by the IDF.

  • As noted above, the Commission treated Israeli claims about Hamas’s widespread use of hospital facilities for military purposes as “unsubstantiated” (Para 27), while accepting the Hamas denial of this practice as credible.
  • The report publishes as a possibility the Hamas narrative that three murdered Israeli hostages “had been killed in an Israeli security forces bombardment” despite the Commission recognizing visible “signs of possible strangulation and laceration marks on the face and arms” of the deceased hostages (Para 84).
  • While the report admits that “as at early September 2024, at least 70 [Israeli] hostages were no longer alive,” the Commission again promotes as a possibility the Hamas claim that “that the majority had been killed by Israeli security forces during military operations.” (Para 85).

Pillay Commission Promotes Antisemitic Genocide Libel

Despite the glaring deficiencies in its methodology which the Commission never acknowledges, the Commission find Israel guilty of the worst crimes. Its conclusions include that:

  • The attacks were “an intrinsic element of the Israeli security forces’ broader assault on Palestinians in Gaza and the physical and demographic infrastructure of Gaza, as well as of efforts to expand the occupation.” (Para 88)
  • Israel “deliberately killed, wounded, arrested, detained, mistreated and tortured medical personnel and targeted medical vehicles, constituting the war crimes of wilful killing and mistreatment and the crime against humanity of extermination” and these actions constituted “collective punishment against the Palestinians in Gaza and are part of the ongoing Israeli attack against the Palestinian people that began on 7 October.” (Para 89).
  • “Israeli security forces failed to adhere to the principles of precaution, distinction and proportionality, constituting the war crimes of wilful killing and attacks against protected objects.” (Para 91).
  • “Attacks against health-care facilities directly resulted in the killing of civilians…” and “such acts constitute the crime against humanity of extermination.” (Para 94).
  • Israel has “deliberately created conditions of life that have resulted in the destruction of generations of Palestinian children and the Palestinian people as a group.” (Para 96).
  • Israel’s “deliberate destruction of sexual and reproductive health-care facilities constitutes reproductive violence… will have irreversible long-term effects on the mental health and the physical reproductive and fertility prospects of the Palestinian people as a group.” (Para 97).
  • “The prolonged physical and mental suffering of injured children and the reproductive harm caused to pregnant, post-partum and lactating women amount to the crime against humanity of other inhumane acts.” (Para 98).

It is not by accident that these conclusions include many of the buzzwords associated with the crime of genocide, which is defined in the 1951 Genocide Convention as committing certain specified acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The specified acts are killing, causing serious bodily or mental harm, deliberately inflicting conditions of life designed to bring about the group’s physical destruction, imposing measures intended to prevent births, and forcibly transferring children to another group.

The Commission deliberately uses language designed to cast Israel’s military campaign against Hamas in Gaza as a genocidal campaign against the Palestinian people. Thus, it repeatedly refers to Israel’s action as part of an attack against “the Palestinian people” or “the Palestinian people as a group.” The Commission also describes Israel’s actions as “deliberately creating conditions of life” resulting in “the destruction of generations of Palestinian children…” The Commission references the long-term effects on the Palestinian people’s “mental health and the physical reproductive and fertility prospects…” and the “prolonged physical and mental suffering of injured Palestinian children and the reproductive harm caused…”

The genocide libel is easily refuted by publicly available information which the Commission ignored—most notably, close to half of those killed in Gaza are Hamas combatants, making the combatant to civilian casualty ratio 1 to 1.5 or 2, better than in any other urban conflict. For more information on this see UN Watch’s response to Claim 44: Israel is Committing Genocide in Gaza Post-October 7th. Nevertheless, the Commission’s report, which has the imprimatur of the UN giving it fake legitimacy, will now be relied upon as evidence of Israeli genocide.

Accusing the Jewish state of genocide is deeply offensive in light of the fact that the Jewish people were the victims of the worst genocide in modern history. It is also patently antisemitic in that it demonizes the world’s only Jewish State, created as a safe-haven for Jews fleeing persecution worldwide, as today’s Nazis—turning the victims into the perpetrator. It is shameful that the UN is being used to perpetuate this antisemitic libel.

UN Watch