Ann Arbor (Informed Comment) – On June 13, I analyzed the report of The UN Independent International Commission of Inquiry on the Occupied Palestinian Territory and Israel for the UN’s Human Rights Council, which found Hamas guilty of war crimes and found the Israeli government and military guilty of crimes against humanity in Gaza.
On Wednesday, the Chair of the Commission, Navi Pillay and fellow Commissioner Chris Sidoti held a news conference on the occasion of their formal presentation of the report to the HRC.
Navi Pillay is a former High Court justice from South Africa and has served in key positions at the United Nations, having been initially nominated by Nelson Mandela, including that of High Commissioner for Human Rights (2008-2014). As an attorney in her native land, she litigated against detention without trial in the Apartheid period; her own husband suffered such unlawful imprisonment.
Chris Sidoti, a prominent attorney, was Australian Human Rights Commissioner and has adjunct positions at several Australian universities.
The Commission examined thousands of open source reports, including satellite imagery and forensic medical reports, and interviewed hundreds of people but Israel prevented them from speaking to victims of October 7 or released hostages in Israel and they were blocked from going into Gaza, apparently by Hamas. They were able to interview Palestinians who lived through the Israeli military campaign in Gaza who had managed to get out to Cairo, Istanbul and other cities.
I ran the YouTube transcript of the press conference through ChatGPT to clean it up and am quoting excerpts from that text below.
Pillay observed, “In the eight months since October 7, tens of thousands of children, women, and men have been killed and injured. Palestinians, Israelis, and citizens of other states have been affected. Thousands of Palestinians have been detained and are being held incommunicado, and 120 Israeli hostages are still held in Gaza. So, the enormity of this tragedy overwhelms us, and we are deeply disturbed by the immense human suffering.”
Sidoti then said for his part, “It’s completely understandable how deeply traumatic the events on and since October 7 have been for Jewish people in Israel and the diaspora around the world and for Palestinian people and the diaspora. Palestinians have experienced 70 or 80 years of dispossession, occupation, and human rights violations, and this has now come on top of that. For Jewish people, the experience of millennia of persecution is immediate and direct. Although I’m neither Palestinian nor Jewish and have not had those experiences, I try to understand how deep and traumatizing what has occurred is not only for those directly affected but for all from the communities that have been affected.”
Sidoti underlined how stressful the work was for the Commissioners and their staff: “It’s been a difficult assignment to deal with the overwhelming nature of the events, not just the statistics, although they themselves lead to a sense of despair, but also the personal stories.”
Pillay said in reply to a question from Reuters about the implications of the report for the International Court of Justice and the International Criminal Court, “I’m particularly concerned about issues that do not receive focus, such as the 8,500 people being held in detention, just picked up and held incommunicado. I grew up in apartheid South Africa, and that’s what I did as a defense lawyer, and brought out the issue of torture that happens in incommunicado, indefinite detention. My husband was also detained, so there is a personal experience there. I agree with Chris that we are independent information gatherers. We want to be very fair and address all issues, but we fully appreciate the impact on victims in any conflict. That’s the importance of this work.”
She added, “I am hopeful, and it’s true I was at the ICJ yesterday in another capacity. Fulfilling hope—for the first time, the General Assembly has asked the International Court of Justice for its opinion on whether the occupation itself is unlawful and whether occupation is the root cause of the conflict because that’s what we’re hearing from people on the ground. Something that had not happened in about 70 years has now happened because of the recommendations made by this commission.”
She said, “I am fairly certain that our reports will be relied on, particularly by the International Criminal Court. They need evidence. The authorities in Israel have declared as terrorist groups some of the NGOs that had announced they would be providing information and cooperating with the ICC. Just for that statement, some of them have now been rendered out of action.”
She explained, “We have a memorandum of understanding with the prosecutor of the ICC. We’ve furnished them with many tranches of information. As of May 28, the commission has shared more than 7,000 open-source items with the office of the prosecutor at the International Criminal Court. This information has been verified and geolocated. We link one video piece to another—great effort. We’ve also shared more than 2,000 open-source items with the government of South Africa because that’s the channel to bring it before the ICJ proceedings. We will continue to furnish further information to them as we gather more information.”
Asked about the killing of aid and medical workers, Ms. Pillay replied, “we are stuck with this word limit that the UN fixes, of 10,000 words. I assure you that we care about those issues, we have the statistics and we will definitely address them. 19 hospitals out of service, 17 hospitals partially functional. I’m also concerned about universities because at one time I spent a week in one of those universities at Al-Haq in Palestine and now that’s razed to the ground. So thank you for drawing our attention to that, we are not going to leave it. It’s how to fit this in into our big themes but it definitely falls there, we will be doing that.”
She noted that “these statistics on the number of killed are crucial for us and for the IC to determine the element of ‘widespread and systematic,’ if you want to reach a conclusion that crimes against humanity have been violated. We said that in the Rwanda tribunal.”
She continued, “Statistics then count even though we said in the ICT decision that a single murder could constitute genocide depending on the context and the intention. Is the special intent fulfilled on the evidence? The special intention is to destroy in whole or in part a particular group, that’s genocide. Crimes against humanity, it has to be widespread and systematic. The information, the details we have on the numbers that are killed, to me they appear to fit the definition of widespread and systematic that has been found by international courts so far.”
Asked about the responsibility of third parties for the long-term Israeli occupation of Gaza and the bombing of its people, Pillay said, “Again and again, thousands of people are telling us that had it not been for the help of powerful countries, Israel would not have been able to carry out this perpetual occupation”.
That assertion came at the end of a longer statement: “We have included that in our first report to the general assembly where that was October of 2023, where we identified as the root cause of the conflict that’s part of our mandate, identify what’s the root cause of the mandate. And we just based on all the evidence we gathered and the law that we analyzed, international law, said the root cause is the occupation because it’s been there in perpetuity and it must be, in our view, it’s unlawful. And we also said an opinion should be sought from the International Court of Justice on the legality, lawfulness of the occupation and secondly the responsibility of States who support that endeavor. So I’m happy that our recommendation has been turned into a resolution and now before the ICJ. So we be very much aware that again and again thousands of people are telling us that had it not been for the help of powerful countries, Israel would not have been able to carry out this perpetual occupation as aggressively as it has.”
The commissioners rejected charges of a double standard or of neglecting the Israeli hostages, pointing out that the Israeli government actively obstructed their access to that side of the story and that they did interview Israeli victims who were abroad. Ms. Pillay said, “We could not yet investigate the 124 hostages in Gaza or the condition of the 8 to 10,000 prisoners in Israeli prisons . . . We reached out to medical staff involved with the injured people and bodies after October 7 and wanted to speak with them. However, the Israeli government issued a directive that they were not to speak with us. It’s been a difficult assignment, but we are collecting evidence and hope that we can have further contact with the families of hostages and those that have been released.”
In answer to a question about genocide, Pillay explained that “We have constraints in that our mandate comes from the Human Rights Council and they have not put genocide into our mandate. But we will work closely with our team to follow whether the elements of genocide are present in this conflict.”
Pillay dismissed justifications for the October 7 behavior of Hamas: “The argument from Palestinians is that they’ve suffered so long they have to react, with your back against the wall, you have to react. The commission’s task is different, we’ve been mandated to see who’s to see if there’s any violations of international law. So you cannot commit an unlawful act and injure and kill civilians or take hostages, so we’re very clear that those were violations and they’re committing crimes and they must be prosecuted.” She admitted that Mandela was also branded a terrorist, but she insisted on the judgment of the law: “So one person’s freedom fighter could be another terrorist, but we adhere to the law, you cannot kill civilians, you have to protect them.”
As for Israeli war crimes, she added, “With this occupation based on all the information we’re gathering, it’s pretty stark to us. There is a very clear intention of forcible dislocation of people, just to force them out. And we read those instructions, people from the north of Gaza move south and suddenly they get attacked in the south. We read all those contrary instructions as pointing to an attitude of not caring for the lives, destruction, and dislocation. That’s what I would say there, that this particular conflict has brought out sharply the issue of occupation itself as the root cause.”
Asked about whether Israel’s army is the most moral in the world, Sidoti replied that he was not in a position to make judgments about morality as opposed to the law, saying, “what I do have expertise in and what I do have authority to do is make assessments of criminal conduct. And we’ve done that in relation to the recent events and you can see that in the report. And the only conclusion you can draw is that the Israeli army is one of the most criminal armies in the world.”
Sidoti also weighed in on the difference between understanding why October 7 happened and justifying it. He said there can be no justification for Hamas’s war crimes. Sidoti said, “Chris, I’d like to focus on your phrase “specific act.” International criminal law is based upon accountability for specific acts, so each war crime is a specific act, each crime against humanity has to be widespread or systematic but it is made up of specific acts, and so criminal responsibility is based on specific acts. But trying to say that starting and finishing is based on a specific act is an impossible task. The Secretary-General famously said last October that what had occurred on the 7th of October did not occur in a vacuum, and that’s something that in our report we have tried to understand. This is a war that’s been going on for almost a century, there has never been a time of complete peace during that century, there is only been variations in the level of violence. What we have seen from the 7th of October is an increase in the level of violence, a more intensive period of hostilities, and we have to understand that context to understand the specific acts that have occurred. But understanding is not justification, understanding doesn’t mean that the commission of a war crime or the commission of a crime against humanity is under any circumstances justifiable. But we’ve got to understand why this has occurred if we are interested in stopping it from happening again, and that to me is the key point here, this has happened time and time and time again and this is the worst ever, this is the highest death toll ever in this protracted period of warfare, and there must be accountability for every specific act of criminality. But if we’re going to stop it in the future, we also have to address the question of the context in which it has occurred.”
Sidoti also thought it was possibly significant that an Israeli representative attended the presentation Wednesday morning, and hoped it was a sign that the Israelis might change their minds about freezing out the Commission.
Asked about sharing information with South Africa, Pillay said, “So firstly, we only shared with South Africa material concerning Gaza because that’s the essence of their application. We shared as much as we could but with all the protection issues in place. We have to protect witnesses’ identity, so although we are in a position to share names not only with South Africa but if the IC requests that and they follow all the measures we put in place to protect the identity of witnesses, we could do that. But this far we haven’t,”
Sidoti added, “I’d just add a brief note relating to the different nature of the processes in the ICC and the ICJ. The International Criminal Court deals with individual criminal accountability, and the prosecutor is the investigator, has an investigative wing, the material we provide to the ICC is supplementary to their own investigations. And most of the, well I think at this stage all the material we have provided is open source material, we have absolutely fantastic expertise in digital forensic analysis, and it seems the ICC doesn’t and so it’s that kind of material, these thousands of pieces of evidence that Navi referred to, and that’s essentially what we’re sharing as well with South Africa under a request from South Africa. It’s non identifying information, it doesn’t place people at risk. The International Court of Justice is not concerned with individual criminal accountability, it deals with state responsibility, in this case under the Genocide Convention.”
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