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.
Dave Reed: Welcome to the Mondoweiss Podcast, I am your host Dave Reed. At Mondoweiss, we cover the movements, activists, and policymakers that effect 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, they presented their 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 limited 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 commissions June report, “Israel itself.”
The commission is led by several highly leaders in international law, including Miloon Kothari, who served as the UN Special Rapporteur on adequate housing with the Human Rights Council. In the wake of the commissions first report, Mondoweiss contributor, David Kattenburg, spoke with Miloon. His views were both candid and cutting.
David Kattenburg: Miloon Kothari, thanks so much for joining me. Can you introduce yourself briefly and tell me who you are and a little about the commission and what it is?
Miloon Kothari: It is very good to be on this program. My name is Miloon Kothari and I am a scholar and activist from India. I have been working on human rights for the last 30 odd years. I have been primarily focusing on social, economic, and cultural rights, so issues of housing land, displacement, evictions.
I was formerly special rapporteur on adequate housing with the 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 member states is assessed every 4 and a half years.
And quite a lot of training on the UN with governments and national human rights institutions and UN teams, with civil society, and I was appointed in July last year to an independent inquiry commission 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 about this COI I can speak about later.
So, we are 3 commissioners. The chair of the COI is Navi Pillay, from South Africa, and formerly the High Commissioner for Human rights. The third member is Chris Sidoti, an expert on national human rights institutions and he is from Australia. The three of us comprise this COI and what I wanted to raise is the several unique features of this COI. The UN has had COI’s on this topic before, I think around 7 of them.
What distinguishes this COI, in a way that I would consider its redeeming feature, is our ongoing mandate. While previous commissions had to be renewed annually, we are an ongoing mandate which gives us the scope to pursue longer term thinking and planning and to look at historical issues. So that temporal scope is very important and is what has caused concern among some countries.
A second 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, or religious identity.
That is a very important aspect of our mandate that allows us to take a historical perspective and allows us to look at the history of settler colonialism and to look at discrimination and to look at what the accumulated consequences of occupation are.
The third aspect which is very important is the geographical scope. Previous COI and work from SR were limited to the occupied territories, essentially West Bank and Gaza. But our mandate includes Israel and 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 is a critical aspect of what has gone wrong in a sense.
David Kattenburg; In your report, there is a phrase in there about Israel itself, some refer to quaintly as Israel proper, when in fact, when someone goes and travels there, as I have recently, knows that the green line is largely fictitious and has been erased. Israel is really, for all intents and purposes, a single state from the river to the sea. And in your report, you talk about the linkage between what goes on in the occupied territories and 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 and the UN recognizes as the State of Israel, there is a distinction to be made.
You are absolutely right that when we look at the kinds of discrimination happening within the green line and when we look at the historical occupation issues, there are many similarities. But we have to read it differently. And the reason we are wanting to make these linkages is because of the point you made: what has transpired in the occupied territories since 1967 is something that has already been happening inside the green line since 1948-the levels of discrimination, the laws, the dispossessions of Palestinians and Israel.
I think it’s important to make the distinction but also to draw the parallels, because that is 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 UN treaty parties. You mentioned the committee on human rights - but only limited to looking at inside the green line. So we have the opportunity to make that historical link as see how the entire area has to be treated in terms of addressing the violations there.
David Kattenburg: Now, in your interim report you presented to the HRC in June, this was essentially a review of past findings and determinations and recommendations from a whole host of UN bodies and mechanisms. This was not so much your analysis 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 made by past bodies have been implemented by Israel-Israel has ignored everything, and it has done so with complete impunity.
Miloon Kothari: That’s correct. First of all, the resolution from the HRC that created our mandate explicitly asked us to draw the essence of all earlier work done from previous bodies. So, we did not just look at past COIs but also work done historically by the mandate of the SR, by the work done by treaty parties that are monitoring treaties Israel has ratified, but that was not the only part covered in the report. We had also done a mission to Oman and heard testimonies from 20 individuals that came from inside the Green line and Gaza. We had leaders from both Jewish and Palestinian civil society, we had ministers from the PA, academics from inside Israel and 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 Egypt into Gaza.
Miloon Kothari: So far we haven’t but we will continue trying. Israel said from the beginning it would not cooperate with the mandate and even our attempts to meet with the Israeli ambassador in Geneva have received no respond. So, we must base our evidence on interviews with people from surrounding countries.
We will be visiting Egypt, Syria, hoping to do this work and hope that we will be allowed into Gaza at some point. And we are hoping that Israel will allow us in the green line and into the West Bank because our mandate also asks us to look for violations on the other side-to look at violations by the Gazan authorities and the Palestinian authorities and we can only look at this systematically and accurately if Israel lets us in and to see the rocket damage and where people have suffered.
And Israel says that our mandate is not accurate and that our perspective is not correct-so if they feel they have a story to tell they should let us in and tell us their perspective on the situation so we will keep trying.
David Kattenburg: But Israel has never allowed any commission of inquiry or investigating group or UN body group or SR since Richard Faulk, into the country.
Miloon Kothari: There are some exceptions. I was part of a 4 SR mission in 2006 when there was a crisis with Lebanon, and we visited Lebanon and looked at the impact of Israel’s cluster bombs and they let us in. So, 4 SRs went. So, there is a precedence there. And Navi Pillay, when High Commissioner, did an official mission and went to the Occupied territories. If they want to, they can and it’s not unprecedented. We are hoping they will.
David Kattenburg: And they probably ignore all the recommendations, all the recommendations made by the HR committee and all the committees. They just ignore them and do so with impunity.
Miloon Kothari: 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 fueling the conflict and for great despair for Palestinians. But what is also very interesting about the recommendations we found is that overwhelmingly they have been directed towards Israel - which also shows the asymmetrical nature of the conflict-and even calling it a conflict raises a lot of questions. So, that is what we are trying to show and the other conclusion we reached which is very important to stress is that Israel has no intention of ending the occupation and the persistent discrimination against Palestinians in the occupied territories, East Jerusalem, and Israel.
David Kattenburg: In your assessment you wrote that the commission notes the strength of prima facie credible evidence that Israel has no intention of ending the occupation and its complete control over the Palestinian territory and is acting to create a favourable environment to settlers by altering the region. So, you have cited Michael Link’s comments that this is an occupation in perpetuity. This is illegal is it not?
Miloon Kothari: Yes, it has been illegal from the beginning. One of our roles is to look at human rights law, international law, criminal law, and on all three counts Israel is in systematic violation of all the legislation. I would go as far to raise the question of why they are even a member of the UN as the Israeli government does not respect its own obligations as a UN member state. They consistently, either directly or through the US try to undermine UN mechanisms.
You might know at this session when we presented our report, the US, a member of the council again, circulated a statement signed by 22 states objecting to our mandate. And that shows great disrespect for the body you are a member of because once you are a member of the body and the body adopts a mechanism you have to respect it and cannot then say you can’t agree with it now.
We are quite surprised, in a way even glad the COI has received so much notice, as you might know a few weeks ago there was a bill presented to the Senate called the ‘elimination of the COI Act’ in the US, and the SOS Anthony Blinken has to report back to congress on how they will eliminate the Commission, and thus far he has failed, despite their repeated attempts this year.
David Kattenburg: I was going to ask about that. Your Chairperson Ms. Pillay has been specifically the target of attacks in Canada and the Canadian government has expressed its displeasure with her as chair.
Miloon Kothari: It is 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 it is very counterproductive. First, it gives more attention to our work and also more support. This year we have received overwhelming support from UN member states - the US got 22 to sign but that is 22 out of a lot - not very much. It is not only governments, but we are very disheartened by the social media, whether controlled by the Jewish lobby or specific NGOs, a lot of money is being thrown to try and 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, you know, 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: The 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 laws is completely off the table.
Miloon Kothari: Yeah, but that was a 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 quote, unquote, conflict. But International law was completely off the table in Ottawa and in Washington.
Miloon Kothari: Yeah, but that’s, I would consider that a problem with Canada and the United States and is not a problem for the world. I mean, we have all come together in the UN and Israel itself has ratified these instruments. It’s not I mean, if there was, if it was not a terms of reference, why would Israel ratify? Why would they report to the UN treaty bodies? You know, 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 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 this interim report, because the term apartheid doesn’t appear anywhere, although you do in a paragraph 45 is a quote from the Human Rights Committee, concluding observations on the Covenant on Civil and Political Rights is that Israel, quote, “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, well, there’s a, there’s actually been a lot of pressure on us to, you know, 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 that we do not think it’s, 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 to draw the full picture, just saying apartheid, just ending apartheid is not going to end occupation, you know, so 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, you know, from the river to the sea. So, so I think we will but at this point, we felt we were we were not we were not neither ready, nor in our initial assessment, did we think it was a sufficient paradigm that we 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 or 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, you know, much beyond just reporting and so on. We have we have a very explicit investigative role. And our staff, our Secretariat has, you know, very senior experts on the investigation on legal jurisprudence, and so on. Yes, we are beginning to collect that information.
David Kattenburg: And are members are 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, 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 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: You also speak in your 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 in 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 settlement, enterprise, economic, fiscal and diplomatic. And, of course, the United States does as well, and so does the European Union. So how do you how does the commission see it’s it’s 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, you know, the high contracting parties of the Geneva Conventions, I mean, 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, you know, 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 the, you know, and to damage the Palestinian population. So that’s something we will be looking at third party accountability. And I think that will be an it’s not only arms, and you know, this, 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, you know, to operate and to promote development in these areas, primarily, you know, benefiting the Jewish populations, including, you know, working in settlements. So, yes, we will be looking at that. That’s absolutely part of our, 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, you know, 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 see what their response is, as you know, you know, the 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 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, i is to move forward into your own investigation and legal analysis with a view on identifying those bearing individual criminal responsibility. When will this work begin?
Miloon Kothari: Well, we’ve already started I mean, we’ve started collecting information. And as I was mentioning, we will be visiting areas taking testimony. And and, you know, 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, in Lebanon, in, 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 arrival too can give us a lot of information.
I mean, we are getting a lot of information already from 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 is a huge gulf between what they say, talking about profound, systematic, comprehensive, chronic violations of international humanitarian and human rights law by 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, you know, 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, you know, Justin Trudeau in Canada says the same thing. You know, the governments of the European Union say the same thing. So on the one hand, you see the international human rights community, you know, say 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 demoralizing? Is this disconcerting?
Miloon Kothari: No, no, it’s not demoralizing. David, it’s disconcerting. It’s an obstacle that we face. But you know, it’s the point I was making earlier, when you have truth, and, you know, 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, and 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 know, you cannot allow a country in the world to get away with this kind of, we’re also, you know, 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 mean, 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, will 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 will change.
And I can tell you that we see a perceptible change. It’s not something where you can be, you know, just immediately optimistic. You see, the changes in 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, you know, meet with people who don’t agree with us. We are having regular roundtables. As I mentioned you we had a roundtable just two weeks ago with 20 leading academics and journalists and former diplomats from Jewish that, 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, you know.
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 you know, 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, you know, trying to cross the aisle we are even willing, and we’ve had some communication even with Congress, Congress, people 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, October, it’s the third week of October, we’ll present it to the General Assembly, we’ll have you know, press conferences, we’re always going to have tried 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.
