The UN’s Problematic Commission on Israel-Palestine
First published on the Centre for International Policy Studies Blog, 1 November 2023
On October 30, CIPS hosted an event featuring members of a controversial United Nations commission. The event was co-sponsored by the Graduate School of Public and International Affairs (which I direct), the Human Rights Research and Education Centre and the International Law Group at the University of Ottawa. The commission in question was the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. Two of its three commissioners – including the chair, Navi Pillay – were present.
The Pillay commission has been a lightning rod for criticism since it was founded by the UN Human Rights Council in May 2021, due in part to its terms of reference, which set no time limit on its investigation of international law violations in Israel and the occupied territories. Earlier this year, Canada, the United States and 25 other countries denounced the commission’s unusually “open-ended mandate”, arguing that it was a “further demonstration of long-standing, disproportionate attention given to Israel in the [UN Human Rights] Council”.
While it is true that Israel has been subjected to disproportionate UN scrutiny, there is also a clear need to investigate the legal and human-rights implications both of Hamas’ attack of October 7 and of Israel’s response. International law must be respected and upheld everywhere.
But whether the commissioners have demonstrated impartiality in their investigations is another question. When Israel announced that it would not cooperate with the commission, its UN ambassador wrote: “It is obvious to my country, as it should be to any fair-minded observer, that there is simply no reason to believe that Israel will receive reasonable, equitable and non-discriminatory treatment from the [Human Rights] Council, or from this Commission of Inquiry”.
Pillay has urged her critics to focus on her commission’s outputs, rather than attacking its individual members. I agree, so I recently sat down and read every report, statement, and press release the commission has issued to date. These documents are arresting, not only because they offer detailed accounts of Israel’s apparent violations of international humanitarian law, but also because of the commission’s relative lack of attention to violations by Palestinian armed groups.
This imbalance is striking. The commission’s four main reports* contain a total of 346 paragraphs. Only 38 of these paragraphs are critical of Palestinian actors, and 29 of these paragraphs are focused primarily on the restriction of civil liberties by Palestinian authorities within Gaza and the West Bank, leaving only nine paragraphs across all four reports that address violent attacks against Israelis.
To be clear, I believe that Israel deserves criticism for policies and actions that infringe the rights of Palestinians. The current situation in Gaza is a humanitarian calamity. Israel must observe the laws of war; failure to do so is a war crime. Permanent occupation of Palestinian territories is neither a sound political strategy nor acceptable under international law. The Netanyahu government’s attempt to ignore Palestinian self-determination rights while advancing illegal settlement activities has set back the cause of peace.
But the commission’s one-sided reporting is another matter. It names individual Palestinian victims and provides harrowing details of their hardships but leaves Israeli victims nameless. Prior to October 7, its discussion of atrocities by Palestinian armed groups was strangely muted. Hamas, for one, is barely mentioned anywhere in the commission’s reports.
This was more than a mere oversight. In addition to reporting on potential violations of international law, the commission’s mandate instructed it to “investigate all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity”. This would be a tough task for anyone, due to the multiple factors that have fueled the Israeli-Palestinian conflict – including the long history of attempts by nearby states and armed groups to erase Israel from the map. Hamas does not hide its aims. A Palestinian state “from the river to the sea” means no more Israel.
Nevertheless, the commission seemed untroubled by this complexity. As Pillay has stated on several occasions, most recently in an interview on Al Jazeera on October 28: “We [the Commission] think the root cause is the occupation itself”. Such a simplistic conclusion demands an explanation. Yet the commission neither describes how it made this determination, nor does it explain what other potential causes were considered but ruled out.
Perhaps this explains the commission’s overwhelming focus on Israeli actions and relative inattention to the actions of Palestinian armed groups. If the activities of such groups and the long history of efforts to deny Israel’s existence are not considered root causes of the conflict, the violence perpetrated by them takes on a different hue. As Pillay explained to Al Jazeera: “When you have a whole population oppressed for so long with no remedies, no relief, they are actually forced to resort to armed struggle.” Although she quickly added that such a struggle must comply with international law, it was hard to escape the implication of her words: One side’s violence is understandable and perhaps even necessary – they are “forced” into it – whereas the other’s side actions represent the “root cause” of the conflict.
I was keen to hear the commissioners’ address these matters. One of the questions at the CIPS event was whether they thought attempts to deny Israel’s right to exist should be counted among the causes of the conflict. The commissioners looked at each other in silence for a long time – I counted more than 10 seconds. Then one answered: “We haven’t looked at 1947 [UN General Assembly decision on the creation of Israel]… We just haven’t done it yet, and we haven’t decided whether we will go back that far”.
It was a curious response. The question was not whether Israel’s creation in 1947 was a driver of the current conflict. Rather, it was whether attempts to deny Israel’s right to exist since its creation should be counted among the root causes. The notion that the commission had not yet “decided” whether to examine this history seems absurd on its face. It casts further doubt on how – or whether – the commission analyzed the conflict’s root causes.
To be clear, I am not questioning the integrity of the commissioners themselves, although one of them, Miloon Kothari, who was not present at the CIPS event, made remarks last year that some regarded as anti-Semitic. When asked about criticism of the commission, he replied: “We are very disheartened by the social media that is controlled largely by – whether it is the Jewish lobby or specific NGOs, a lot of money is being thrown into trying to discredit us”. He later apologized, calling his choice of words “incorrect, inappropriate, and insensitive.”
In fact, there is no need to impugn the character of the commissioners, because their work speaks for itself. It offers a decidedly partial portrayal of the conflict – “partial” not just in the sense of incomplete, but also biased. This outcome was not inevitable; it is a result of how the commission chose to conduct its work. Upholding human rights for individuals on both sides of this terrible conflict is too important to be left to a group whose writings and statements call their own impartiality into question. Another mechanism must be found.
Still, it was important to hear from them, and for participants at the CIPS event to have an opportunity to question the commissioners. It was an example of what can be learned at such an event, even if the lessons were not necessarily the ones that the commissioners intended.
* Reports dated 9 May 2022, 14 September 2022, 9 May 2023, and 9 September 2023.