On June 7, 2022, the UN Human Rights Council (HRC)’s “Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and in Israel” (COI) published its first report. As expected, this initial report perpetuates outright falsehoods, and relies on information provided by terror-linked and anti-Israel NGOs to previous UN bodies. This is consistent with the COI’s prejudicial mandate and the bias of commission members.
The COI’s Fundamental Bias
- Unlike other commissions of inquiry that present a single report to the HRC, the COI will report twice a year in perpetuity, making it yet another permanent anti-Israel UN institution.
- The COI seeks to collect evidence that will be provided to the International Criminal Court (ICC), affording NGOs another vehicle to lobby for prosecutions of Israeli officials.
- The COI’s mandate includes an obligation to investigate “root causes” of the Israeli-Palestinian conflict. In this regard, it will likely become a platform for NGO claims that the Jewish state is illegitimate and guilty of the crime of “apartheid.”
- The selection process for commissioners was non-transparent, and there is secrecy regarding the identity of the “experts” upon whom the COI is relying.
- All three COI commissioners have long-documented anti-Israel biases or have worked for a Palestinian Authority-linked institution. For example, regarding COI head Navi Pillay, in 2012, US House Foreign Affairs Chair Rep. Ileana Ros-Lehtinen and Rep. Elliot Engel opposed the extension of her tenure as UN High Commissioner for Human Rights, due to her “repeatedly demonstrated bias against the state of Israel.”
- In March 2022, the COI met with NGOs responsible for promoting the “apartheid” campaign against Israel, including B’Tselem, Adalah, Addameer, and Human Rights Watch (HRW). There is no indication that the COI made efforts to engage with or meet with Jewish groups or those providing a mainstream Israeli perspective.
Failures of the June 2022 report
- The report makes demonstrably false claims, such as asserting – incorrectly – that Palestinian residents of Jerusalem cannot apply for Israeli citizenship and that non-Jewish Israeli citizens have a separate legal status than Jewish Israelis.
- The most-cited source in the COI is the discredited 2009 Goldstone Report on the 2008-2009 conflict between Israel and Palestinian terror organizations in Gaza. That report’s biases and flaws were so severe that its own author, Judge Richard Goldstone, disavowed it in an April 2011 op-ed in the Washington Post, writing, “If I had known then what I know now, the Goldstone Report would have been a different document.”
- The report cites to non-binding and political UN resolutions, reports, statements, and advisory opinions as representing binding law.
- It attacks Israel’s Law of Return – streamlining immigration and naturalization for Jews around the world – while erasing its consistency with international law and practice.
- The COI seeks to discredit Israel’s designation of terror-linked Palestinian NGOs. In contract, the EU, the Netherlands, and financial institutions such as Visa, MasterCard, American Express, Citibank, and Arab Bank, have frozen funds, ended contracts, closed accounts, and denied services to these groups over terror-financing concerns.
- The report cites to UN documents that are themselves based on data provided by these terror-linked NGOs.
- The COI does not mention Palestinian incitement and other crucial factors necessary for understanding Israeli security policy.
- The COI parrots earlier NGO and UN documents blaming Israel for “the destruction of Palestinian water infrastructure” and limited “access to water,” ignoring increased Israeli supply of water to the West Bank. Moreover, the Palestinian Authority boycotted the Israeli-Palestinian Joint Water Committee (JWC) – a decision-making body tasked with managing and improving infrastructure in the West Bank – for years, severely hindering the development of additional water infrastructure for Palestinians.
On 7 June 2022, the UN’s “Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and in Israel” issued its first report. Unsurprisingly, much like every other Israel-focused document produced by the Human Rights Council (UNHRC) and the Office of the High Commissioner for Human Rights (OHCHR), the report concludes that the “occupation of lands by Israel” is the “underlying root cause of recurrent tensions, instability and protraction of conflict” (para 69).
This Commission of Inquiry (COI) was established in May 2021 (Resolution S-30/1) by the UNHRC and, reflecting an agenda driven by the network of non-governmental organizations (NGOs) leading the delegitimization campaign against Israel, was created as a permanent mechanism. The Council has a long history of institutional and systemic bias towards Israel, and this is its fourth permanent mechanism targeting Israel.1
In advance of the June session of the Council, a group of countries, spearheaded by the US, circulated a joint statement to member states opposing the COI and criticizing its report. (The creation of the COI passed by a narrow margin with many of the countries in favor or abstaining expressing concern regarding the permanence of the COI and its excessive costs.) The Statement notes:
Resolution S-30/1 established, for the first time in the Council’s history, a COI of unlimited mandate, with no sunset clause or end date. The Commission is similarly unrestrained in its substantive and temporal scope, applying to a host of actions and “all root causes” “leading up to and since 13 April 2021” – in effect to all potential issues at all times. These were among the fundamental concerns that led to half the Council’s membership withholding their support from resolution S-30/1 when it came up for adoption last May.
Human Rights Watch (HRW) lobbied member states in an attempt to sway them not to co-sponsor the joint statement. On June 3, 2022, HRW sent an email to all UN delegations urging them to refuse to sign the statement, misrepresenting the unprecedented nature of the COI and misleading on the documented institutional bias against Israel at the Council.
Background on the COI
The mandate of the COI, as shaped by NGO lobbying, clearly establishes that it will be a prejudicial and biased body, aimed at supporting NGO and Palestinian campaigns to isolate Israel internationally through BDS and “apartheid” allegations (in particular in the context of the International Criminal Court). Ultimately, as reflected in the COI’s first report, it serves to bolster those who refuse to accept a Jewish presence and sovereign state in the Middle East – regardless of borders.
In this regard, key elements of the mandate include:
- “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;”
- “Collect, consolidate and analyse evidence of such violations and abuses and of crimes perpetrated, and systematically record and preserve all information, documentation and evidence, including interviews, witness testimony and forensic material, in accordance with international law standards, in order to maximize the possibility of its admissibility in legal proceedings;”
- “Identify, where possible, those responsible, with a view to ensuring that perpetrators of violations are held accountable.”
Due to the long history of institutional discrimination and bias against Israel at the UNHRC, the expansive and perpetual mandate, and the well-grounded belief “that there was no reason to believe that Israel would receive reasonable, equitable and non-discriminatory treatment from either the Human Rights Council or the Commission,” the Israeli government chose not to engage with the COI.1 In the report, the COI laments this lack of cooperation and asserts “the need for it to hear from all concerned parties, duty bearers, victims and witnesses.”
The COI, however, provides no assurances nor specifics as to how it would ensure that the state of Israel, Jewish, mainstream Israeli, Zionist organizations, and/or victims of Palestinian terrorism would receive fair treatment. If anything, the operations to date, including close cooperation with a narrow spectrum of NGOs, suggest it will not act in an impartial and non-discriminatory manner.
Indeed, the working methods of the COI highlighted in the report demonstrate that, like previous COIs targeting Israel (there have been at least nine), the Committee made no meaningful or rigorous efforts to engage with any actors that do not promote a Palestinian narrative. For example, according to media reports, NGO publications, and social media posts (but not disclosed in the report) in March 2022, the COI met with NGOs responsible for promoting the apartheid campaign against Israel, including B’Tselem, Adalah, Addameer, and Human Rights Watch . There is no indication the COI made efforts to engage with or meet with Jewish groups or those providing a mainstream Israeli perspective. The report also claims that “the Commission ensured the inclusion of a diverse range of perspectives in its consultations and meetings, including with women’s rights organizations, academics and organizations focusing on child rights.” Again, there is no indication that any of these groups provided any “diversity” beyond the narrow Palestinian narrative promoted in the report, specifically, and the UNHRC more broadly. In addition, when the COI mentions “Israeli stakeholders” in its report, it means Israeli NGOs like B’Tselem that also advance a Palestinian political agenda.
Reflecting its reliance on previous UN Human Rights Council reports, the COI report openly admits that its presentation is one-sided: “the findings and recommendations relevant the underlying root causes were overwhelmingly directed towards Israel and the report therefore reflects this” (para 28).
The initial report does not accuse Israel of apartheid. However, it is clear from NGO lobbying, the debate during the May 2021 special session, and the wording of the mandate that the ultimate intention of the COI is to declare Israel is guilty of this crime. Indeed, to coincide with the publication of the COI report, on June 16, the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People will be hosting an event, “Apartheid, International Law, and the Occupied Palestinian Territory” with former High Commissioner for Human Rights Zeid Ra’ad Al-Hussein and Secretary General of Amnesty International Agnes Callamard.
The apartheid agenda is reflected in the report. For instance, in an apparent non sequitur, the COI specifically mentions the Palestinian Authority’s joining of the 1973 Apartheid Convention in a footnote to the opening sentence of the section on “IV. Applicable Law”: “In addition to being party to seven of the core human rights treaties, the State of Palestine is party to the International Convention on the Suppression and Punishment of the Crime of Apartheid” (fn 3). The note mentions no other treaties by name.
In addition, the COI uses a variety of terms and phrases that are, in the UN-NGO network, shorthand for apartheid. It reiterates multiple times that its mandate is to look at “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” (emphasis added, see paras 9-10, 13, section VIII.A., 61, 71, 72, etc…). The report also claims it “interpreted its mandate as requiring it to take full account of intersecting forms of discrimination” (para 13). Finally, it concludes that “the continuing occupation of the Occupied Palestinian Territory, including East Jerusalem, the 15-year blockade of Gaza and longstanding discrimination within Israel are all intrinsically linked, and cannot be looked at in isolation” (para 72). The report also emphasizes topics that are central to the intensive NGO campaigns promoting apartheid demonization, including the false narrative that Israel is responsible for the “fragmentation” of the Palestinian people.
The working methods of the COI discussed in the report reflect the ongoing practice of secrecy surrounding the appointment of Commissioners and the staffing of commissions of inquiry by the Human Rights Council bureaucracy and OHCHR. Identifying those hired by OHCHR is critical to assess the credibility of the COI and to ensure that it is in keeping with UN regulations and international standards. As it is, the three Commissioners were appointed in a secret process and had prejudicial records that are disqualifying under the International Bar Association Lund-London Fact-finding Guidelines and OHCHR’s own guidelines for fact-finding bodies.
Paragraph 3 of the report notes that a core temporary start-up team was appointed by OHCHR and that hiring a full staff was in process. It also stated that the approved budget “required a 25-percent reduction in staff on the estimates by OHCHR.” The COI claims that it will hire staffers with “specialised skills” and that “evidence collected or received is stored in a manner which meets international standards for evidence preservation.” However, by continuing to conceal hiring procedures and the identities of its staffers, verification of such claims is impossible. Based on previous experience, these staffers are likely to be part of the NGO network.
Despite being called a commission of inquiry, the COI did not conduct any original research or investigation in preparing its first report. Instead, it copies-and-pastes from previous UN attacks on Israel – which themselves are largely based on repeating distorted factual and legal claims from anti-Israel NGOs.
The most heavily cited document is the discredited Goldstone Report (2009), which dealt with the 2008-2009 conflict between Israel and Palestinian terrorist organizations in Gaza. That report’s biases and flaws, based on adoption of NGO claims (as documented in detail by NGO Monitor), were so severe that its own author, Judge Richard Goldstone, disavowed it in an April 2011 op-ed in the Washington Post, writing, “If I had known then what I know now, the Goldstone Report would have been a different document.”
Additionally, the COI cites to UN reports that rely heavily on data provided by terror-linked NGOs. For instance, regarding claims on the detention of Palestinian minors by Israel, the COI references a July 2021 UN report that quotes statistics from the Palestinian NGO Addameer – designated by Israel as a terrorist entity in October 2021 over its close ties to the PFLP.
Falsehoods in the Report
Throughout the report, the COI echoes the tendentious view of the Arab-Israeli conflict proffered by the NGO network, placing sole blame on Israel and erasing the long history of Arab and Palestinian rejectionism and warfare. This re-writing of history in the report is not surprising given that its source material is based almost entirely on similarly biased UN reports (see above) which, in turn, are often based on NGO publications. The COI presents the failure of Israel to withdraw from territories occupied since 1967 as the primary source of the conflict, ignoring the Arab rejection of the UN partition plan in 1947, the launch of the 1948 war by five Arab armies, ongoing terrorism by the PLO and other Palestinian armed groups pre-dating 1967, and the “Three Nos” of Khartoum.
Similarly, the report states that Oslo Accords were to be for a “transitional period not exceeding five years, leading to a permanent settlement, based on Security Council resolutions 242 and 338.” Yet, the COI says nothing about how a permanent settlement was not achieved because the Palestinian leadership rejected comprehensive statehood offers in 2000, 2001, and 2008 in line with Security Council resolutions.
It also fails to mention the years of suicide bombings and other attacks launched by Palestinians in 2000 that led to the deaths and injuries of thousands of Israeli civilians.
The COI also omits PA President Mahmoud Abbas’ refusal to negotiate with Israel, choosing instead, as he announced in a May 2011 New York Times op-ed, to “internationalize” the conflict.
The COI repeats the absurd claims, made by HRW, Amnesty, and others, “that the Israeli domestic legal framework maintains a three-tiered system of laws affording different civil status, rights and legal protection for Jewish Israeli citizens, Palestinian citizens of Israel and Palestinian residents of East Jerusalem.” In this context, the COI falsely states that “Palestinian residents [of Jerusalem] are not eligible for Israeli citizenship.”
In fact, Palestinians living in Jerusalem, who were granted residency in 1967 based on the 1952 Entry Into Israel Law, can apply and receive Israeli citizenship. According to data provided by the Interior Ministry, in 2019, Israel approved 2,372 citizenship applications of such residents. In November 2020, the ministry announced new eligibility criteria, designed to make it easier for these residents to obtain Israeli citizenship.
As do many countries, Israeli law provides for different legal status for citizens and residents, a distinction that explains the discrepancy between Israeli citizens and those Palestinian residents of Jerusalem who do not obtain citizenship. Still, the latter may vote and run for elected office in Jerusalem, and enjoy Israeli health benefits and other State-organized services.
The COI’s claim that Israeli law discriminates between Jewish and non-Jewish citizens is likewise false, based on an inaccurate reading of the Nation State Law (2018). While the law identifies Jewish settlement as a value, it does not affect any rights or protections afforded to all citizens regardless of heritage. Notably, it also recognizes the special status of the Arabic language in Israel.
The COI juxtaposes Israel’s Law of Return – which facilitates Jewish immigration and naturalization – with the Citizenship and Entry Law (widely known as the “Family Reunification law”) – which restricts residency for citizens of hostile countries and territories, including Palestinians from the West Bank and Gaza. In so doing, the COI disregards international norms and erases the historical context that necessitates both measures.
As noted by Joshua Kern and Anne Herzberg in their March 2022 report analyzing NGO allegations, “Neo-Orientalism: Deconstructing claims of apartheid in the Palestinian-Israeli conflict”:
In 2000, the Israeli Supreme Court stated that Israel’s Law of Return does not discriminate between different categories of citizens within the State of Israel; it provides “a special key to enter the house” of Israel, but “once somebody is in the house as a citizen under the law, he enjoys equal rights, just like all the other members of the household.” The law is intended to offer Jews around the world safe haven. It does not provide for “Jewish preferential citizenship,” nor does it make the citizenship of non-Jews inferior. It is directed towards the Jewish diaspora.
This principle is specifically enshrined in Article 1(3) of the ICERD which states that “[n]othing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.” There is nothing in Israel’s Law of Return of 1950 conflicts with these principles.
The Law of Return’s purpose is therefore to rectify historic, and to safeguard against future, wrongs committed against the Jewish people, who for centuries lived as a minority throughout the world and as such were persecuted, deported, destroyed, and unable to achieve national independence. These considerations of corrective justice “create a justified exception to the principle of equality.” In Europe, Yakobson and Rubinstein note that is accepted that in relation to immigration and naturalisation, a nation-State is permitted to maintain official ties with “kin” outside its borders and treat them preferentially. For example, Germany in the 1950s expanded the right to automatic citizenship to all ethnic Germans from the Soviet Union or Eastern Europe. In 1996, Finland amended its “foreigners’ Law” to confer residency status on ethnic Finns who came to Finland from the Soviet Union. There is a distinction between ethnicity, national identity, and citizenship in the Constitutions of Poland, Ireland, and Armenia. China maintains institutionalised connections with its diaspora, as does South Korea.
The Citizenship and Entry Law was adopted by the Knesset in July 2003, placing limits on granting Israeli citizenship to Palestinians in the West Bank and Gaza. It was enacted due to individuals “who were granted legal status in Israel based on their marriage to an Israeli citizen, and took advantage of their Israeli ID to pass checkpoints and carry into Israel either suicide bombers or explosives.”
Specifically, the law followed a wave of attacks in March 2002 that killed 135 Israelis and injured more than 700. According to the Israeli Ministry of Justice, prior to the 2003 amendments, 23 terrorist attacks, including a March 2002 suicide bombing in Haifa that killed 15, were carried out by Palestinians who had abused the prior law to gain access to Israel.
In a May 2017 Knesset Foreign Affairs and Defense Committee hearing, an Israeli security official revealed that, from 2001 to April 2017, 49 Palestinians who had received legal status in Israel as a result of “family unification,” engaged in terrorist activity.
The COI excoriates Israel for designating six Palestinian NGOs as terror entities in October 2021, over their close ties to the US and EU-designated terrorist organization, the Popular Front for the Liberation of Palestine (PFLP). It quotes earlier UN publications that referred to the evidence underpinning the decision as “vague.”
However, in contrast to the COI’s approach, a series of European and financial institutions have taken action to ensure that their funds and platforms are not abused by these terror-linked actors.
On July 20, 2020, the Dutch government announced it was freezing funding to Union of Agricultural Work Committees (UAWC) – one of the designated organizations – citing the NGO’s close links to the PFLP. Foreign Minister Stef Blok and Development Minister Sigrid Kaag revealed that an internal government audit concluded that Dutch funds were used to pay the salaries of two UAWC employees – Samer Arbid and Abdel Razeq Farraj – currently standing trial for their alleged roles in an August 2019 bombing that murdered an Israeli civilian. In January 2022, the Dutch Foreign Minister announced that the Netherlands had ceased all funding to UAWC, after an 18-month long independent investigation verified that at least 34 UAWC employees (2007-2020) were PFLP members.
In December 2021, another designated organization – Al-Haq – revealed that the European Commission suspended its funding in May 2021, after apparently receiving information from the Israeli government. Additionally, European media reported that the EC instructed its grantee Oxfam “to cut funding to the Union of Agricultural Works Committees until the situation has been clarified.”
Similarly, Israeli media reported in February 2022 that, following a meeting between Israeli Foreign Minister Yair Lapid and German Foreign Minister Annalena Baerbock, “the German and Israeli foreign ministries will jointly consider ways to continue funding projects in the territories without the money going to six Palestinian organizations that Israel outlawed as terrorist groups.”
Moreover, in 2018, Citibank, Arab Bank, credit card companies, and the online donations platform Global Giving, all froze accounts or denied services to another designated NGO, Defense for Children International-Palestine (DCI-P). Similarly, credit card companies froze services to Al-Haq in 2018.
The report presents multiple controversial legal positions as if they represent binding international law. These include:
- Citations to non-binding and political UN resolutions, reports, statements, and ICJ advisory opinions as representing hard, binding law.
- The claim that “the applicability of human rights law in a situation of armed conflict or occupation concurrently with international humanitarian law has been widely affirmed” (para 20). Whether and the extent to which human rights law applies in situations of armed conflict is hotly debated and far from settled law.
- The status of Gaza as “occupied” territory.
These premises and practices, while obviously problematic in the context of the Israeli-Palestinian conflict, set precedents and norms for investigatory procedures aimed at other conflicts.
The COI cites NGO-sourced claims in UN documents regarding acts of violence perpetrated by Israeli civilians in the West Bank. These allegations suffer from methodological failures and fundamental distortions, and they also ignore enforcement steps taken by Israeli authorities to prevent such incidents and punish perpetrators.
Israel does not publish separate statistics regarding alleged offenses committed by Israeli civilians against Palestinians in the West Bank. There are significant discrepancies in UN and NGO reporting on the issue, including differences in the number of incidents reported, as well as unclear sources and inclusion of Palestinian terrorists and Israeli victims of terror in the data.
Moreover, Palestinian violence against Israeli civilians outnumbers Israeli civilian violence against Palestinians, both in absolute numbers and in severity. Even UN Special Coordinator for the Middle East Peace Process Tor Wennesland (relying on discredited UN data) in his monthly briefings to the UN Security Council, acknowledges this fact.
Based on Wennesland’s January - May 2022 briefings:1
- 3% of incidents instigated by civilians were attacks carried out by Palestinians.
- 5% of fatalities in attacks carried out by civilians and emanating from the West Bank and East Jerusalem were Israelis or foreigners living in Israel.
Fittingly, Wennesland’s updates regularly refer to Palestinian-launched “shootings, stabbing and ramming attacks, as well as incidents involving the throwing of stones and Molotov cocktails and other incidents.” No similar description is provided for actions allegedly carried out by Israeli civilians. Yet, this reality is not reflected in the COI report.
Finally, Israeli authorities have worked to address incidents of violence, with Defense Minister Benny Gantz approving administrative detention for multiple Israeli civilians over plans to commit violence against Palestinians in the West Bank. Similarly, in a May 2020 ruling, the Supreme Court wrote that “price tag” attacks against Palestinian civilians constitute “Terrorist acts within the framework of a terrorist organization.”
The COI parrots earlier NGO and UN documents claiming inequitable allocation of water resources between Israelis and Palestinians in the West Bank.
However, according to a 2021 document from the Israel water carrier, Mekorot, in 2019 the company provided 86.3 MCM to the PA, selling it for NIS 3.607 per MCM. This represents an increase, up from approximately 64 MCM in 2015. Crucially, the 2021 document notes that, to meet demand, Israeli and Palestinian officials jointly determine increases in water provision to the PA by Israel.
Moreover, Israel continues to invest in improving Palestinian water infrastructure in the West Bank. In a June 19, 2018 hearing of the Knesset Defense and Foreign Affairs Committee, Giora Shaham, head of the Israel’s Water Authority (IWA), reported that his office was implementing a plan, scheduled for completion in 2022, to address West Bank water and waste issues and guide government policy through 2040. The plan will guarantee that all residents of the West Bank – Israelis and Palestinians – will enjoy the same access to water as do Israeli citizens within the Green Line.
Relatedly, at an August 8, 2016 meeting of the same committee, deputy head of the WA, Oded Fiksler, reported that “the plan doubles the amount of water in the West Bank (not including the Jordan Valley) from 73 MCM/Y to 142 MCM/Y. With full implementation of the plan, Israeli communities will receive 48 MCM/Y and the PA will receive 93 MCM/Y.”
At the same time, the COI completely ignores Palestinian culpability for degraded water infrastructure. The Oslo framework established the Joint Water Committee (JWC) as the primary bilateral tool for managing water issues. Consisting of representatives of the two sides, the JWC is responsible for managing the allocation of water and approving water and sanitation projects in the West Bank. According to a 2018 INSS-EcoPeace publication and a 2017 report from Israel’s State Comptroller, the PA prevented the JWC from convening for seven years, only agreeing to reconvene the body in 2017. Both noted that the reason for the Palestinian boycott was to hinder the development of water infrastructure for Israeli communities in the West Bank. This policy severely hindered the development of additional water infrastructure for Palestinians and created a massive backlog of projects to review and advance.
Regardless, as reported by the State Comptroller as well as Israeli officials addressing the Knesset’s Defense and Foreign Affairs Committee, despite the Palestinian freeze on JWC functions, Israel sought to approve Palestinian infrastructure projects outside of this framework, in order to address the acute environmental effects of the lack of sufficient waste and water infrastructure.
Data published by the UN Office for the Coordination of Humanitarian Affairs (OCHA) includes Palestinians killed while carrying out terrorist attacks as “settler-related incidents.”
According to OCHA, three Palestinians have been killed in 2022 in “incidents involving Israeli settlers.” One was shot after stabbing an Israeli civilian on a bus on March 31, another appears to have been shot by the IDF in clashes in Nablus on April 13, and lastly, a Hamas member was shot after scaling the perimeter fence of the Israeli West Bank town of Tekoa with a knife on May 8.