An interview with Navi Pillay, Chair of UNHRC's inquiry into human rights violations in Palestine

On May 2021, the United Nations Human Rights Council (UNHRC) established an international commission of inquiry (COI), “to investigate, in the Occupied Palestinian Territory (OPT), including East Jerusalem, and in Israel, all alleged violations of international humanitarian law and abuses of international human rights law leading up and since 13 April 2021”.

The prominent South African human rights lawyer and former judge and High Commissioner of the Human Rights Council, Navanethem Pillay, was appointed to chair the COI.

In an exclusive interview with Al-Araby Al-Jadeed’s (The New Arab’s sister Arabic site) senior correspondent at the United Nations in New York, Ibtisam Azem, Pillay discussed the latest report and the attacks on the commission.

This interview has been edited for brevity and clarity.

Ibtisam Azem: The COI that you are heading concluded in its latest report in October that the Israeli occupation of Palestinian territory is unlawful under international law, due to its permanence and the Israeli government's de facto and de jure annexation policies. Is this a shift in the conversation and, if so, what are the repercussions?

Navanethem Pillay: It is a shift in the conversation where it is most important, which is the UN, the decision-making body. It's not new among civil society and Palestinians. Our recommendations were to refer the matter of the illegality of occupation to the International Court of Justice (ICJ).

Much of the discourse to date has been on Israel's adherence to the international laws governing the occupation of territory, along with the applicable international human rights law. Having found in our first report that it was the continued occupation and discrimination against Palestinians that were driving the conflict, in our second report to the General Assembly, we took this forward, and we asked the question of whether the occupation itself was now illegal.

"Given Israel's clear refusal to end the occupation and to abide by international obligations, there was a need for a shift in the conversation, moving from a discussion on how Israel should abide by the laws of occupation towards recognising that the occupation itself is illegal"

There are reasonable grounds to conclude that it was illegal, owing to its permanence and to actions undertaken by Israel to annex parts of the land, de facto and de jure. Such actions include evictions, deportations, the forcible transfer of Palestinians within the West Bank, the expropriation, looting, plundering, the exploitation of land and vital natural resources, the restrictions on movement and the maintenance of a coercive environment against Palestinians with the aim of fragmenting society, encouraging the departure of Palestinians from certain areas and ensuring that they are incapable of fulfilling their right to self-determination.

We also concluded that some of the policies may constitute war crimes, such as the transfer of parts of Israel’s own population into the occupied territory through the settlement program, and the crimes against humanity of deportation or forcible transfer.

Such actions and policies could not remain unaddressed. Given Israel's clear refusal to end the occupation and to abide by international obligations, there was a need for a shift in the conversation, moving from a discussion on how Israel should abide by the laws of occupation towards recognising that the occupation itself is illegal and there must be legal consequences and obligations for third states to ensure respect for international law.

So this is a dramatic approach which we brought for the first time into the halls of the GA.

I.A.: How significant is it that the ICJ would investigate this?

N.P.: It is extremely significant, and we welcome it, though I should note that the resolution still has to be adopted by the plenary of the GA this month. Still, there was a vote of 98 countries in favour, with 52 abstentions and 17 against in the fourth committee, making clear that the majority of member states recognize that the current situation cannot remain unaddressed.

We need clarification of the legal consequences of Israel's refusal to end the occupation. We want the court to spell out what are the obligations of third party states to ensure respect for international law.

"All victims will be given a voice by our commission regardless of nationality, religion, or political persuasions, because human rights are universal"

I.A.: From the moment of its establishment, the COI has been attacked. After putting out its first report in June, the US State Department put out a statement of opposition to the inquiry and described its work as “represent[ing] a one-sided, biased approach that does nothing to advance the prospects for peace.” However, western countries support other COIs on Ukraine, Syria and more. Why do you think this is happening in the case of Palestine?

N.P.: When I was High Commissioner for Human Rights, we found this kind of double standards and selective justice. I always used to say that states must apply the same standards to their friends as they do to their foes. The commission continues to enjoy the support of most member states of the UN, that’s why I feel we stand on high moral ground.

Let me emphasise, human rights are universal and international law applies to all individuals and states without distinction. Regarding the accusation that this COI does nothing to advance the prospects for peace, I would be curious to hear from the United States what current and specific prospects for peace they believe our work is impeding.

On comments of the COI having a one-sided approach, you know, they said this even before we issued our first report. All states should be held accountable for any failure to promote and protect the human rights of persons within their borders. And the same applies to Israel without exception in the OPT, which is under its effective control.

It is true that our first two reports focused primarily on violations committed by Israel. As mandated by the Human Rights Council, we chose first to address the core underlying root causes and drivers of the conflict, which in our finding is the perpetual occupation and discrimination against Palestinians.

It is important to be clear that we are investigating all duty bearers. This includes the Palestinian Authority, the de facto authorities in Gaza, as well as acts of armed groups…All victims will be given a voice by our commission regardless of nationality, religion, or political persuasions, because human rights are universal.

These sorts of accusations levelled against critics of Israeli policy and practices are not new, and are often used by Israel and pro-Israeli groups to deflect public attention from findings and recommendations issued by various mechanisms that are dedicated to looking at Israel's conduct in the OPT.

So alongside, accusations of one sidedness, we've also been continually accused of being anti-Semitic…a highly effective tactic employed to silence any criticism of Israeli human rights violations and international crimes…But given the extreme seriousness of the issue of anti-Semitism, we have become gravely concerned that such accusations actually end up promoting the trivialisation of actual anti-Semitism and the rising use of politically motivated accusations to silence legitimate scrutiny of member states’ adherence to international human rights.

I.A.: Do you see parallels with your experience in Apartheid South Africa?

N.P.: It's always risky to compare two different situations. We have received numerous requests from civil society organisations to examine the question of apartheid. We will conduct our own investigations, our own legal analysis into possible international crimes…The crime of apartheid is a highly complex one with numerous elements that need to be evaluated.

Legal analysis will be based on whether the facts meet the legal definition, not on whether Israel and its policies resemble those employed by apartheid South Africa or any other regime.

I do want to note that several countries that have themselves experienced the appalling effects of colonisation, discrimination and the denial of the right to self-discrimination…have been the strongest supporters of our mandate.

"I hope [Palestinians] get inspired, as we [South Africans] did, by the collective support of the international community, both states and activists all over"

I.A.: The COI mandate includes making “recommendations on measures to be taken by third states to ensure respect for international humanitarian law in the OPT…” Does this make countries like the US and others who are militarily aiding Israel also responsible for the human rights violations and could they face legal challenges?

N.P.: That's a great question, because it alerts us to the possibility that the high court identifies that the occupation is unlawful and then states have legal obligations not to support this illegal act. I think this is why they are afraid of the mandate.

This is the first time this has happened in a COI mandate. It's a clear indication of the recognition by the UNHRC, that third states do have an obligation to act to ensure the respect by Israel for international law, including by ending its occupation, and to question their own conduct in supporting this.

I.A.: Many Palestinians feel abandoned by the international community. Even when there are UN resolutions doing some justice, their daily reality does not change and there is no end in sight to their suffering. As a former judge in South Africa and the ICC, an attorney, a High Commissioner for Human Rights who worked on so many cases, what do you say to them?

N.P.: It is such an important question on the impact on victims. Nobody seems to address that fully. I was a lawyer for 30 years defending, pro bono, human rights activists and opponents of apartheid…While we were fighting every day over different issues relating to apartheid, I felt many low moments. I never dreamed that there would be change in my country during my lifetime.

But change happens and the main reason is because civil society finds vestiges of colonialism and occupation unacceptable. So, this is what I say to the Palestinians. I hope they get inspired, as we did, by the collective support of the international community, both states and activists all over. That really kept us going. We knew we had to fight our own battles, and we must never give up.

And now after all that abusive criticism we [the COI] received, why do I still stand tall and feel I'm on the higher moral ground? It is because of the global support for what we are saying and global support for the Palestinian struggle for self-determination.

Navi Pillay was born in 1941 in South Africa. Pillay was the first woman to start a law practice in her home province of Natal in 1967. She worked as a defence attorney for anti-apartheid activists, exposing torture, and helping establish key rights for prisoners on Robben Island. Pillay was appointed as acting judge on the South African High Court after the end of apartheid in 1995.  She was elected as a judge on the International Criminal Tribunal for Rwanda, (1999-2003) and served as its president in the last four years. She played a critical role in the ICTR's groundbreaking jurisprudence on rape as genocide. In 2003, she was appointed as a judge on the International Criminal Court in the Hague, She served as UN High Commissioner for Human Rights from 2008 to 2014. Pillay received a BA and a LLB from Natal University South Africa and a doctorate of Juridical Science from Harvard University.

Ibtisam Azem is a novelist and senior correspondent. She has been covering the UN for a decade. Her latest novel is The Book of Disappearance. Follow her on Twitter: @IbtisamAzem