Legal Analysis of the Pillay Commission’s 2023 Report to UNGA
Following is a legal analysis of the Pillay Commission of Inquiry’s 2023 report to the UN General Assembly.
By Dina Rovner, Legal Advisor at UN Watch
The Pillay Commission’s latest report to the General Assembly, to be presented on October 24th, focuses on the use of excessive force. In line with its approach to the mandate to date and with its previous reports, this report is overwhelmingly one-sided and biased against Israel. It accuses Israel of multiple war crimes, minimizes Israel’s security needs, refuses to acknowledge the existence of Palestinian terrorism, blames Palestinian violence on Israel, and sanitizes it by calling it protests for self-determination. In the few places where the Commission criticizes Hamas and Palestinian Islamic Jihad, it creates a complete moral equivalence between those terrorist groups and Israel, accusing them equally of war crimes. The report fails to give Israel any credit for its enormous efforts to avoid civilian casualties and omits any discussion of Hamas’s cynical use of Palestinians as human shields. The Commission’s recommendations include a call for the Secretary-General to list Israel in the annexes to his next report on children in armed conflict which is ironic considering that the Palestinian terror groups recruit and use Palestinian children as soldiers deliberately placing them in harms way.
Since the report only covers the period from May 2021 through July/August 2023, it does not address Hamas’s savage October 7th massacre of Israeli civilians. However, the press release accompanying the report continues the Commission’s complete moral equivalence between Israel and Hamas as well as the Commission’s refusal to treat Hamas as a terrorist organization and to affirm Israel’s right to self-defense. The press release refers to “the atrocities we have witnessed since 7 October” without naming any perpetrators. It then adds that “civilians and civilian objects should always be protected” and calls on “all parties to uphold their duty to protect them under international humanitarian law,” implying that Hamas and Israel are equally guilty of targeting civilians. Continuing in this vein, the Commission indicates in the next paragraph that it is collecting evidence of war crimes by “Hamas and other Palestinian armed groups and by Israeli security forces.”
The Commission’s one-sided approach turns a blind eye to the ultimate goal of Palestinian terrorism against Israel, which is not to end the occupation, but rather to eliminate the State of Israel. This is clear in the Hamas Charter, the statements of its leaders, and its barbaric slaughter of over 1300 Israelis, mostly civilians, on October 7th. By ignoring this fact, the Commission ultimately facilities Hamas-style jihadi terrorism and contributes to the perpetuation of the cycle of violence which the Commission claims it wishes to end.
1. Sources Reflect Bias
In its report, the Commission states generally that it is based on interviews, open-source research, meeting with stakeholders, public hearings, primary and secondary sources, and submissions received following a call for submissions issued on November 2, 2022 (Para 2). However, the Commission does not disclose the identities of the interviewees, stakeholders, primary sources, or parties that made submissions. While some sources are identified in the footnotes, in many instances the report simply refers generically to “document on file” with no further information. Moreover, aside from publicly available news articles by Israeli media and some Israeli government publications, all of the other citations are to pro-Palestinian NGOs-like B’Tselem, Al Haq, DCI Palestine, Adalah, AL Mezan, etc.-which promote the narrative that Israel is guilty of apartheid and commits war crimes. This underscores the Commission’s bias and supports the conclusion that rather than conducting an impartial investigation, the Commission is merely looking for material to support its already predetermined conclusions.
2. Minimizes Security Threat to Israel
The Commission minimizes the security threat to Israel from Palestinian terrorism. It implies that terrorism is not a valid justification for Israeli security measures since the term has no international law definition. The Commission then proceeds to place quotation marks around the word terrorism every time it appears in the report (g., Paras. 5, 23, 24, 31, 32). While terrorism may not have an internationally agreed upon meaning, it is defined in many countries’ domestic law, including in Israel. Moreover, the term terrorism is meant to convey the intent and objective of the perpetrator, but the underlying acts of violence are crimes warranting defensive security measures whether categorized as terrorism or not. Even the OHCHR website recognizes that “As a minimum, Terrorism involves the intimidation or coercion of populations or governments through the threat or perpetration of violence, causing death, serious injury or the taking of hostages.” In its conclusions, Commission states outright that Israeli security measures are not justified for “pre-emption or deterrence” (Para 76). By denying Israel’s right to defend against terrorism, the Commission ultimately strengthens the terrorist organizations and encourages more attacks.
3. Denies Application of IHL to West Bank
The Commission’s absolute rejection of the application of International Humanitarian Law in the West Bank (Paras 5, 21) is used to justify some of its most extreme accusations against Israel. However, whether or not IHL applies in a given situation is not dependent on the geographical location (West Bank or Gaza), but on the fact that an international armed conflict exists between Israel and the terrorist groups-Hamas, Palestinian Islamic Jihad, and others-planning and carrying out attacks from both places, and the particular nature of each incident. The UN’s Palmer Commission already found that an international armed conflict exists between Israel and the terrorist groups operating in Gaza. The situation is no different in the West Bank where the same actors are involved. Moreover, it is known that the Gaza terrorist groups instruct their operatives in the West Bank. It seems as though the Commission deliberately creates an artificial legal distinction between the West Bank and Gaza so that it can apply the stricter standards of international human rights law to Israel’s counter-terrorism operations in the West Bank and more easily concoct Israeli violations. The Commission’s Gaza/West Bank dichotomy is so contrived that it leads the Commission to condemn Israel’s use of life-saving technology solely because the Commission considers this to be evidence that Israel is applying an IHL rather than an international human rights law approach (Para. 35). For example, the Commission criticizes Israel’s use of helicopters to rescue its personnel after they came under attack by Palestinian armed groups who had deployed IEDs. It seems the Commission would have preferred Israel to leave its wounded soldiers in the field. Likewise, the Commission criticizes Israel’s use of an armed drone to kill three terrorists from Jenin who had been involved in several terror attacks, including just before they were killed. Surely, the use of the drone protected civilian lives, but the Commission fails to take this into account.
4. Broad Conclusions, Not Supported
The Commission makes sweeping conclusions that have no basis. For example, in Paragraph 72, the Commission states that Israel’s application of IHL standards to law enforcement operations in the West Bank “appears intended to attribute the concept of direct participation in hostilities to all Palestinian civilians engaged in any form of oppositional activities, including legitimate peaceful protest.” Even though, as explained, there is a perfectly sound legal rationale for Israel’s decisions on when to apply IHL rules vs. law enforcement rules, the Commission is so set on indicting Israel that it manipulates the facts and law to find Israel guilty of a nefarious intent of treating peaceful Palestinian protesters as militants. The Commission continues in Paragraph 73 to broadly conclude that “the increasing use of force in Israeli security forces operations in the West Bank perpetuate cycles of protraction of conflict, fuelling endless killings and harm.” Again, in Paragraph 78, the Commission concludes that “Israel’s use of excessive force…perpetuates a cycle of violence intended to maintain Israel’s occupation.” No support is provided for these non-sequiturs. Thus, the Commission completely ignores the existence of a conflict and exempts the Palestinian Authority and Hamas of any culpability for the lack of peace, lack of Palestinian self-determination, fragmentation of Palestinian society, and repeated cycles of violence.
5. Misapplies IHL Rule of Precaution
In citing the IHL Rule of Precaution (Article 57, Additional Protocol I to the Geneva Conventions), the Commission conveniently omits the crucial qualifying phrase that effective advance warnings should be given “unless circumstances do not permit” (Para. 9). Thus, the Commission appears to hold Israel to a higher standard than that required by the Geneva Conventions. The ICRC commentary
