Following is the transcript of the interview with Miloon Kothari, member of the UNHRC commission of inquiry targeting Israel, from the Mondoweiss podcast, July 25, 2022, for which he was denounced by Britain, France, Germany, Canada, the United States, Austria, Netherlands and the Czech Republic, and the U.S. and Canadian special envoys on antisemitism.
Dave Reed: Welcome to the Mondoweiss Podcast, I am your host, Dave Reed. At Mondoweiss, we cover the movements, activists, and policymakers that affect the struggle for freedom in Palestine. In May 2021, fighting broke out between Palestinian resistance groups in Gaza and the Israeli military. 300 Palestinian residents of Gaza were killed, including 66 children, and thousands were injured. The UN Human Rights Council set up a Commission of Inquiry to investigate the root causes of the violence. On June 7 of this year, the commission presented its first report to the Human Rights Council.
Unlike past UN commissions of inquiry on violence between Israelis and Palestinians, the mandate of this commission is not time limited. It is not subjected to annual renewal and is not restricted to investigating the immediate circumstances that led to its formation. Rather, it was told to take its time and examine the underlying root causes of recurrent tensions.
In further contrast with past commissions and special rapporteurs on the Occupied Palestinian Territories, this commission has been tasked with examining the situation in both the Occupied Palestinian Territories and, in the words of the commission’s June report, “Israel itself.”
The commission is led by several highly experienced leaders in international law, including Miloon Kothari, who served as the United Nations Special Rapporteur on adequate housing with the Human Rights Council. In the wake of the commission’s first report, Mondoweiss contributor David Kattenburg spoke with Miloon Kothari. His views were both candid and cutting.
David Kattenburg: Hello Miloon Kothari, thank you so much for joining me. Can you introduce yourself briefly and tell me who you are and a little bit about the special commission of inquiry and what it is? Start by introducing yourself.
Miloon Kothari: It is very good to be on this program. My name is Miloon Kothari and I am a scholar-activist from India. I have been working on human rights for the last 30-odd years. I have been primarily focusing on economic, social and cultural rights, so the issue of housing, land, displacement, evictions.
I was formerly Special Rapporteur on adequate housing with the UN Human Rights Council from 2000 to 2008, and I also set up several civil society organizations in India. And lately, I have been doing a lot of work on the Universal Periodic Review, which is a peer review mechanism at the Human Rights Council where a comprehensive human rights record of all UN member states is assessed every four and a half years.
And quite a lot of training on the UN with governments, with national human rights institutions, with UN teams, with civil society, and I was appointed in July last year to the commission established by the Human Rights Council to investigate human rights issues in the Occupied Palestinian Territories but also inside the Green Line in Israel. And there are some very unique features to this commission of inquiry, which I can speak about later.
So we are three commissioners. The chair of the commission is Navi Pillay, from South Africa, who was formerly High Commissioner for Human Rights. And the third member is Chris Sidoti, who is an expert on national human rights institutions, and he is from Australia. So the three of us comprise this commission of inquiry and what I wanted to raise, there are several unique features to this commission. The Human Rights Council of course has had commissions of inquiry on the Occupied Territories before, I think there were seven of them.
What distinguishes our commission, and in a way I would consider our redeeming features, is first of all that it’s an ongoing mandate. Earlier commissions were annual and had to be renewed annually, but we are an ongoing mandate which gives us the scope to do longer-term thinking, envisioning looking at historical issues. So that temporal scope is very important and that’s what has caused some concern amongst certain countries. We cannot get into that.
The second important aspect is that we have been asked to look at root causes of the conflict. So, we are not looking necessarily at specific instances of violations, but we are looking at root causes of recurrent tensions, instability, and retraction of the conflict, including systematic discrimination and repression based on national, ethnic, racial, or religious identity.
So that’s a very important aspect of our mandate which allows us to take a historical perspective, which allows us to look at the history of settler colonialism, to look at issues of discrimination and to look at issues of what are the consequences, historically and what have been the accumulated consequences of occupation by Israel.
The third aspect, which is very important, is the geographical scope. We have a previous commission of inquiry and the work of the UN Special Rapporteur on the Occupied Territories were limited to the occupied areas, essentially West Bank and Gaza, but our mandate includes Israel so it includes all areas inside the Green Line, so essentially, we are looking at the human rights situation from the river to the sea, which is also very important because that’s a critical aspect of what has gone wrong in a sense.
David Kattenburg: In your report, you refer there’s a phrase in there about Israel itself. Some refer to kind of quaintly as Israel proper, when in fact, I mean anybody who goes and travels there, as I have just recently, knows that the Green Line is largely fictitious and it’s been erased, that Israel is really, for all intents and purposes, a single state from the river to the sea. And in your commission, in your report, you talk about the compelling linkage between what goes on in the Occupied Territories “and what goes on in Israel itself.” Thoughts on this?
Miloon Kothari: I think you are absolutely right, of course. In terms of the sort of governance issues, the functioning of the state, the national laws in terms of what Israel itself recognizes as the state, in terms of what the United Nations recognizes as the State of Israel as a member of the United Nations, I think there is a distinction that has to be made.
You are absolutely right that when we look at the kinds of discrimination inside the Green Line, when we look at the historical occupation issues, there are many, many similarities. But we have to treat it differently. And the reason we are obviously wanting to make the linkages is precisely because of the point you raise that actually what has transpired in the Occupied Territories since ‘67 is something that had already been happening inside the Green Line since ‘48—the levels of discrimination, the different laws, the dispossession of Palestinian-Israelis.
So I think it’s important to make the distinction but then also to draw the parallels, because that’s something that the UN has not successfully been able to do because the earlier mandates only included the Occupied Territories, except for the work of the United Nations treaty bodies. You mentioned the Human Rights Committee. But then they were limited to only looking at inside the Green Line, and so we have an opportunity to make that historical link and to see how the entire area has to be treated in terms of redressing the violations that are there.
David Kattenburg: Now in your interim report, which you presented to the Human Rights Council in early June, this was essentially a review of past findings, determinations and findings and recommendations from a whole host of UN human rights bodies and mechanisms and so forth. This was not a work of your own analysis so much as was it a review of past findings. Could you comment on that methodologically? The bottom line is that none of the findings and recommendations, the myriad recommendations made by past human rights bodies and mechanisms have been abided by Israel—Israel’s ignored everything and it’s done so with complete impunity.
Miloon Kothari: That’s correct but first of all, the resolution from the Human Rights Council that created our mandate explicitly asked us to draw the essence from all the earlier work that had been done by the human rights bodies. So we actually went beyond, we didn’t look at only the commissions of inquiry but we also looked at the work done historically by the mandate of the Special Rapporteur on the Occupied Territories, we looked at the work done by treaty bodies that are monitoring different treaties that Israel has ratified and it’s reporting on, but I just want to say that that was not the only part covered in the report. We also had done a mission to Amman, we had taken, we had heard testimonies from 30 individuals who came from inside the Green Line, who came from Gaza and the West Bank. We had leaders of both Jewish and Palestinian civil society, we had ministers from the Palestinian Authority, we had academics from inside Israel and so it was partly based on that. We also did quite a few online interviews because we are not allowed to go into the areas.
David Kattenburg: Israel would not allow you into the country. Nor would Egypt allow you entry into Gaza.
Miloon Kothari: So far they haven’t but we keep trying. But Israel from the beginning has said they will not cooperate with the mandate and even our attempts to meet with the Israeli ambassador in Geneva have received no response. So we have to collect our data and our evidence based on people that we can interview in the surrounding countries, and we will be visiting Lebanon, we will be visiting Egypt, possibly Syria, continuing to do this work and we’re hoping that we will be allowed into Gaza at some point. And we are hoping also that Israel will allow us inside the Green Line and to go to the West Bank because we feel that our mandate also asks us to look at violations on the other side—so look at violations by the Gaza authorities, violations done by the Palestinian authorities, and we can only look at that systematically and with some level of accuracy if Israel allows us in and we can visit the areas where the rockets have created damage and where people have suffered. And we are also hoping—Israel keeps talking about our mandate is not accurate and that our perspective is not correct—so if they feel that they have a story to tell, they should let us in and tell us their perspective on the whole situation. So we’re hoping, we keep trying and we hope that they will allow us in at one point.
David Kattenburg: But Israel has never allowed any commission of inquiry or investigating group or UN body committee or UN special rapporteur, not since Richard Falk – they don’t let them into the country.
Miloon Kothari: But David, there are some exceptions. I was actually part of a four rapporteur mission in 2006 when there was a crisis with Lebanon, and we visited Lebanon, we looked at the impact of Israel’s cluster bombs and then we requested Israel to allow us in and they actually did, so four UN rapporteurs travelled. We went to the Galilee. We interviewed families that had been affected by rockets. So, there is a precedence there. And Navi Pillay, when she was High Commissioner, actually did an official mission to Israel as well, and she was allowed to go to the Occupied Territories. If they want to, they can. It’s not unprecedented and we’re hoping that they will.
David Kattenburg: And they probably ignore all the recommendations, all the recommendations made by the Human Rights Committee and the Committee on Economic, Social, Cultural Rights, and of the special rapporteurs. They just ignore them.
Miloon Kothari: Yeah, that was our finding.
David Kattenburg: And they do so with impunity.
Miloon Kothari: With impunity and they have been overwhelmingly ignored. And in fact, one of our conclusions is that because these recommendations have been consistently ignored, it has been one of the causes of fuelling the conflict and, of course, for great despair amongst the Palestinians. But what is also very interesting about the recommendations we found that overwhelmingly they have been directed towards Israel—which also shows the asymmetrical nature of the conflict—and it even being called a conflict raises a lot of questions. So, that’s what we are trying to show and the other conclusion that we reached which we think is very important to continue to stress is that Israel has no intention of ending the occupation, and the persistent discrimination against the Palestinians lies at the heart of the systematic recurrence of violations in the Occupied Territories, in East Jerusalem, and in Israel.
David Kattenburg: You note down here in your assessment, you wrote that the commission notes the strength of prima facie credible evidence available that Israel has no intention of ending the occupation and has clear policies for ensuring complete control over the Occupied Palestinian Territory and is acting to alter the demography through the maintenance of a repressive environment for Palestinians in a favorable environment for Israeli settlers. So, you’ve confirmed or cited Michael Lynk’s comments that the occupation is now permanent, it’s an occupation of perpetuity. I mean this is illegal is it not?
Miloon Kothari: Yes, it’s been illegal from the beginning and, in fact, one of our mandates is to look at the role of humanitarian law, human rights law, international law, criminal law, and on all three counts Israel is in systematic violation of all the legislation. And in fact, I would go as far to raise the question of why are they even a member of the United Nations because they don’t respect, the Israeli government does not respect its own obligations as a UN member state. They in fact consistently, either directly or through the United States, try to undermine UN mechanisms.
You might know at this session of the Council when we presented our report, the United States, which as you know, became a member of the Council again, circulated a statement signed by 22 countries objecting to our mandate, and that actually shows great disrespect for the body that the United States is a member of because once you’re are a member of a body and a body has adopted a mechanism, you have to respect it. You cannot then say “oh you know we were not there last year” or “we don’t agree with it now.”
And also we are quite surprised, in a way I would say we are also glad, that our commission of inquiry has received so much notice. As you might know just a few weeks ago in the Senate there’s a bill that’s been presented in the US, which is called the ‘Elimination of the COI Act,’ and the Secretary of State Anthony Blinken has gone out on criticizing the thing. He has to report back to Congress next year on what the US has done to eliminate our commission, and none of that is succeeding. The US failed quite badly at the Council this year to do anything to us because we have already…
David Kattenburg: And I was going to ask about that. Your chairperson Ms. Pillay has been specifically the target of attacks in Canada—the Canadian government has apparently expressed its displeasure with Ms. Pillay’s presence as chair.
Miloon Kothari: We think it’s very unfortunate to attack individual members of the commission who have been appointed through a long and rigorous process and I think it is just a way to try and discredit the Council, and I think it’s very counterproductive because, first of all, it brings more attention to our work and also it brings more support. I mean at the Council this year we had overwhelming support of the UN member states. The US got 22 states to sign but that’s 22 out of 193. That’s not very much. And also, I think that it’s not only governments, but we are very disheartened by the social media that is controlled largely by, whether it’s the Jewish lobby, or it’s specific NGOs, a lot of money is being thrown into trying to discredit us.
But you know, David, the important thing is that our mandate is based on international human rights and humanitarian standards, and we are all seeking the truth. And we feel that based on the evidence that we have—overwhelming evidence—I think it’s one of the most well documented conflicts in the world. Historically, based on that evidence, based on the international law, if people feel that we are biased, then we are biased, but for us, that’s the job we’ve been given to do and that’s what we’re doing.
David Kattenburg: But international law is not a term of reference in the context of what’s referred to as the peace process since the early 1990s. International law is completely off the table.
Miloon Kothari: Yeah, but that was a serious flaw in the Oslo process and so on. But I think it’s not, it’s very much been on the table with all the UN human rights bodies. And it’s very much the standard by which the behavior of Israel is assessed all over the world. So it’s very, very relevant.
David Kattenburg: But it’s not a term of reference for the US government, nor for the Canadian government, nor for the European Union. The EU talks with greater conviction about the role of international law in this “conflict.” But international law was completely off the table in Ottawa and in Washington.
Miloon Kothari: Yeah, but I would consider that a problem with Canada and the United States and it’s not a problem for the world. I mean, we have all come together in the UN and Israel itself has ratified these instruments. If it was not a term of reference, why would Israel ratify? Why would they report to the UN treaty bodies? Why would they come to the Human Rights Council? So I think there’s a duplicity there, there are double standards.
When it comes to Ukraine, David, international law becomes very, very important. In fact, it’s used as the standard even by the United States, but most certainly by the European Union, also by the International Criminal Court. And they are pushing ahead and pointing out all the violations done by Russia. But the same violations of occupation and dispossession done by Israel do not receive the same treatment. So there is a serious double standard here, which needs to be exposed.
David Kattenburg: I’m wondering if, Professor Kothari, if the apartheid idea came up in the course of your deliberations leading to this interim report, because the term apartheid doesn’t appear anywhere, although you do in a paragraph 45, there’s a quote from the Human Rights Committee concluding observations on the Covenant on Civil and Political Rights is that “Israeli domestic legal framework maintains a three-tiered system of laws affording different civil status rights and legal protections for Jewish Israeli citizens, Palestinian citizens of Israel and Palestinian residents of East Jerusalem.” Is this apartheid?
Miloon Kothari: Yes, there’s actually been a lot of pressure on us to give our opinion on that. And we deliberated on it, we felt that we were not ready because we need to reach our own conclusions after deep study and analysis, which we haven’t had time. We also feel, and I think we’ve stated that we do not think it’s a useful paradigm, it’s a useful framework. But we don’t think it’s sufficient to capture the enormity of what has happened in the area.
So it doesn’t look, for example, at the whole history of settler colonialism, it doesn’t look at the whole issue of occupation, it doesn’t look at many other dimensions, which I think that when we are asked to look at root causes, are very important to draw the full picture. Just saying apartheid, just ending apartheid is not going to end occupation, so there is a much, much deeper and a much more comprehensive review that has to be done, and that’s what we’re doing.
We will get to the apartheid question at some point in the future because we will be looking at discrimination in general from the river to the sea. So I think we will but at this point, we felt we were neither ready, nor in our initial assessment did we think it was a sufficient paradigm that we should only focus on that.
David Kattenburg: You talked in your in your interim report about developing a database or a repository of evidence that could be used in subsequent judicial processes. Without getting too specific, can you talk about that, about this repository and what your thoughts are about building a case that can be taken to a judicial instance?
Miloon Kothari: Yes, we have been actually explicitly mandated to collect data, information, forensic material. Because we are an accountability body, we have to seek accountability, but we don’t, and so we have to also work with other international bodies. So, for example, we will be working closely with the International Criminal Court, which as you know, has opened a file on Palestine. We will also be looking at other methods of universal jurisdiction, perhaps a role for the International Court of Justice. So our work is to collect a repository of all the evidence that we gather and then, at a particular time, hand it over to the judicial bodies that can take action. So our role is much beyond just reporting and so on. We have a very explicit investigative role and our staff, our secretariat has very senior experts on investigation, on legal jurisprudence, and so on. Yes, we are beginning to collect that information.
David Kattenburg: And are members or have members of your staff been in touch with people in the International Criminal Court? Are there linkages now that have been established?
Miloon Kothari: Yes, actually we have ourselves visited there last month and met with the Deputy Prosecutor. So the three commissioners have been to The Hague and we are exploring possibilities of working with them.
David Kattenburg: You’ve spoken with Ms. Khan?
Miloon Kothari: That’s right, yes. And her team.
David Kattenburg: And her team?
Miloon Kothari: Yes, that’s correct.
David Kattenburg: You also speak in your interim report about trying to convince state parties to the various legal instruments that they have a duty under, for example, Article One of the common to the Geneva Conventions that country state parties must respect and ensure respect for the Convention in all circumstances, which they’ve not been doing. I mean, there’s no better example than Canada. Canada’s official position is that Israel’s an occupying power in the West Bank, including East Jerusalem and the Golan Heights and Gaza, and that settlements are therefore illegal.
It knows that settlements are there for presumptive crime under the Rome Statute. But Canada extends aid and assistance to Israel’s settlement enterprise, economic, fiscal, and diplomatic. And, of course, the United States does as well, and so does the European Union. So how does the commission see its role in trying to get state parties to abide by their own obligations?
Miloon Kothari: Yeah, that’s a very good point. But first of all, our role is to identify the obligations of, we have been, again, given explicitly the mandate to look at third party accountability, which means to look at the high contracting parties of the Geneva Conventions, all the human rights instruments, whether they’re complying with their obligations, including what are called extraterritorial obligations. And we will be doing that in one of our subsequent reports.
And we will also be examining, and that we have been asked the whole question of arms transfer, which is a very, very serious issue that countries, you name some of them, there are others, who continue to supply arms to Israel, which are obviously also being used to suppress and to damage the Palestinian population. So that’s something we will be looking at: third-party accountability, and I think that will be, and it’s not only arms, it’s also the business interests. As you know, there’s a business database on companies that operate in the Occupied Territories.
So that’s also part of the third-party accountability that states allowing businesses that are registered in their countries to operate and to promote development in these areas, primarily benefiting the Jewish populations, including working in settlements. So, yes, we will be looking at that. That’s absolutely part of our remit.
David Kattenburg: And how do you go about doing that? How does the Commission of Inquiry go about procedurally getting state parties to abide by their obligations?
Miloon Kothari: But I think the first step is to identify what is the nature of that involvement and to identify the extent of the damage being done by that involvement, and that’s the first step we would take and then to obviously, to discuss with the committee, is to raise the issue at the Human Rights Council and see what their response is. As you know, the BDS movement is there, as you know, some countries have taken steps to label products from the Occupied Territories, other countries are considering that. So I think our role is to expose the extent of third-party culpability in the Occupied Territories. And that’s what we will do, including the arms issue, which I think, which we think is very important.
David Kattenburg: And so your next step, Professor Kothari, is to move forward into your own investigation and legal analysis with a view to identifying those bearing individual criminal responsibility. When will this work begin?
Miloon Kothari: Well, we’ve already started collecting information. And as I was mentioning, we will be visiting areas taking testimony and slowly proceeding with that work. It’s not something that will suddenly appear in a report, it’s something we have to accumulate over some years and see when it is time to share that information with the relevant authorities. But our work has already begun.
David Kattenburg: And toward the very end of your report, you say that the commission will seek to engage with the wider Palestinian diaspora. This is 50% of the Palestinian population residing outside of the Occupied Territories. This is interesting, you propose to speak to Palestinians in United States and Canada and throughout the Middle East and Australia and all those places?
Miloon Kothari: Yes, yes, very much. So we will be speaking to the Palestinian diaspora in Lebanon, in Jordan, in Egypt, in Syria, and also wherever we go, possibly in the US as well. And that’s one way for us to collect the information that we need, because there are refugees that have, of course, historically been dispossessed from the Occupied Territories, but there are even recent arrivals who can give us a lot of information.
We are getting a lot of information already with all the new technology available. We are using, we are working with the UN satellite agency, we’re looking at other forms of getting information if we cannot travel there. There’s quite a lot of geospatial data that is available, which very clearly shows for example, which we hope to share in our report to the General Assembly, which shows the evolution, the extent to which the occupation has been solidified in the West Bank and the damage being done by, for example, the blockade on Gaza.
David Kattenburg: My last question, Milan Kothari, and thank you so much for your time, there’s a yawning gulf, a huge chasm between the ideas that are conveyed in this interim report from the special commission of inquiry and from other reports that have been produced by UN human rights bodies and special rapporteurs. This is a huge gulf between what they say, talking about profound, systematic, comprehensive, chronic violations of international humanitarian and human rights law by the State of Israel, on one hand, and on the other hand, statements that we hear from, while Joe Biden was asked just the other day, “what do you think about Israeli apartheid?” and he said, he denies it, and he insists that Israel is a shining democracy, a light unto the world.
And of course, Justin Trudeau in Canada says the same thing. The governments of the European Union say the same thing. So on the one hand, you see the international human rights community saying one thing, and it’s completely at odds with what the state parties are saying. So how does the commission wrap its head around this? Is this demoralizing? Is this disconcerting?
Miloon Kothari: No, no, it’s not demoralizing, David, it’s disconcerting, it’s an obstacle that we face. But it’s the point I was making earlier, when you have truth and universally accepted legal standards on your side, you have to keep pursuing. And we are hoping that the more evidence we collect and we present, and as I was mentioning, we have a sort of a wider and a different mandate than the ones that have passed before, we are hoping to convince these countries to go beyond ideology, to go beyond just a blind sort of faith in whatever Israel does. We want to continue to expose that you cannot allow a country in the world to get away with this kind of, we’re also beginning to tackle this issue of how far you can take antisemitism, for example. So I think that the more work we do, the more we present, and I don’t think it’s, I can tell you that we have had meetings at very high levels with different European Union countries and we see a change. We see a number of countries, I don’t want to name them all here. but we see a number of countries who are now very critical, very critical of Israel.
But what we would like to see is to go beyond just statements, to actually take action and we are hoping that the evidence we produce, we are hoping that the issues that we raise, and the dialogues that we have with not only these countries but with their parliaments, which we will be doing, and their media and so on and academics. We are hoping that that will change.
And I can tell you that we see a perceptible change. It’s not something where you can be just immediately optimistic. You see the changes on the campuses in the United States as well. So we are going to try to reach across the aisle, we are hoping to also meet with people who don’t agree with us. We are having regular roundtables. As I mentioned to you, we had a roundtable just two weeks ago with 20 leading academics and journalists and former diplomats from Jewish, from inside the Green Line, who came to Geneva to speak to us. We asked them what they thought about our first report, we asked them what do they think are the issues we should cover? We will continue to do this..
David Kattenburg: What are they saying?
Miloon Kothari: Well, they generally agreed with us. They generally agreed with us that generally encouraged us to continue. As you know, there are very strong voices inside Israel, including leading journalists and academics. We’re writing and we’re speaking out on all these issues, and in fact, what is striking to us is that some of the articles and analysis that you read in some of the Israeli media is very forthright and very direct. It’s things that you would never read anywhere in the United States, for example.
So, there is a voice emerging and that’s the voice we’re trying to reach out to. That’s the voice we’re trying to learn from. Now, the political process is a much more bigger obstacle inside Israel, as you know, but we are trying to cross the aisle. We are even willing, and we’ve had some communication even with Congress, congresspeople and senators in the United States. So we are going to try to do as much work as we can, which is well beyond just our reports. Our mandate is much beyond that.
David Kattenburg: And so your next report will be issued in October?
Miloon Kothari: Yes, it will be available, should be available by the end of September. We will present it in October, it’s the third week of October, we’ll present it to the General Assembly. We’ll have press conferences, we’re always going to try to have roundtables in the US. We will be visiting some of the campuses to speak to students, and we’re hoping to do some other public meetings and work when we are in, we’re going to be in the United States for about two weeks.
David Kattenburg: Miloon Kothari, thank you so much for joining me today.
Miloon Kothari: Thanks very much for your work.
