The UNHRC’s Pillay Commission has just published a 10-page Position Paper containing its legal analysis and recommendations with regard to the International Court of Justice’s July 19, 2024 Advisory Opinion on Israel. Although it purports to be a “legal analysis” it does not provide any new analysis, but merely reiterates the ICJ’s conclusions, which themselves were based on the Commission’s own October 2022 report to the General Assembly and other biased UN reports. Effectively, the Commission recycles its own prior findings into a new document presented as a “position paper” which is intended for use as part of the legal case against Israel at the UN and other international fora.
In the Timeline below, we show that this “new” position paper is not at all new. The Commission’s latest analysis and recommendations originated in its September 2022 report to the General Assembly which served as the Catalyst and the basis for the ICJ’s Advisory Opinion. The Timeline further shows how the current ICJ assault on Israel lacks any factual and legal foundation because it is based on the Commission’s biased and methodologically flawed report that only considered one-sided sources. Therefore, all proceedings and recommendations flowing from the ICJ Advisory Opinion, including the September 2024 General Assembly resolution demanding Israel end its occupation and this Position Paper are inherently flawed.
September 14, 2022
The Pillay Commission issued a report to the General Assembly (A/77/328) concluding that the Israeli occupation was unlawful and recommending that the General Assembly request an Advisory Opinion from the ICJ on the “legal consequences” of the occupation and the resulting “obligations of third States and the United Nations.” (Para 92).
Sources: Unspecified “interviews with primary and secondary sources,” discussions with unidentified “stakeholders,” uncited “submissions,” and “research.” The only sources cited for factual matters are UN reports and documents and NGO’s known for their anti-Israel agenda, such as Norwegian Refugee Council, Amnesty International, Adalah, Yesh Din, and B’Tselem.
For a critique of the report see UN Watch Rebuttal of Pillay Commission’s September 2022 Report to the UNGA
November 11, 2022
Fourth Committee adopts resolution titled Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem requesting Advisory Opinion from the ICJ on the issues recommended by the Commission.
December 30, 2022
The UNGA Plenary adopts the Fourth Committee’s resolution Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem (A/RES/77/247) which took note of the Commission’s September 2022 report (A/77/328) and requested an urgent Advisory Opinion from the ICJ on: (1) the “legal consequences” of Israel’s “ongoing violation of the right of the Palestinian people to self-determination from its prolonged occupation…”; (2a) how does this impact the “legal status of the occupation; and (2b) what are the “legal consequences” for all States and the UN.
The resolution was adopted by a vote of 87 to 26 with 53 Abstentions.
Favor: Includes China, Cuba, Iran, Pakistan, North Korea, Saudi Arabia, Syria, Vietnam, Zimbabwe.
Against: Includes Australia, Austria, Canada, Czech Republic, Germany, Italy, United Kingdom, United States.
December 31, 2022
The Pillay Commission welcomes the General Assembly resolution requesting an advisory opinion of the ICJ. “The Commission considers that a definitive clarification of the legal consequences of Israel’s refusal to end the occupation, and what the obligation of third parties to ensure respect for international law are, will be crucial to member States and the UN in considering what further measures should be adopted to ensure full compliance with international law.”
January 17, 2023
UN Secretary-General Antonio Guterres transmits the General Assembly’s request for an Advisory Opinion to the ICJ.
September 2023
Pillay Commission publishes position paper detailing its position on the questions presented to the ICJ in Resolution 77/247, concluding that Israel is in continuing violation of “the right of the Palestinian people to self-determination” and that its occupation is “unlawful under international law.”
July 19, 2024
The ICJ issues its Advisory Opinion finding inter alia:
Israel
- “Israel’s policies and practices referred to in question (a) are in breach of international law. The maintenance of these policies and practices is an unlawful act of a continuing character entailing Israel’s international responsibility.” (Para 265).
- “In reply to the first part of question (b) … the continued presence pf Israel in the Occupied Palestinian Territory is illegal.” (Para 266).
- As to the second part of question (b), the ICJ found that the legal consequences for Israel include that “Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible.” (Para 267); “Israel must immediately cease all new settlement activity. Israel also has an obligation to repeal all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the Occupied Palestinian Territory, as well as all measures aimed at modifying the demographic composition of any parts of the territory.” (Para 268); “Israel is also under an obligation to provide full reparation for the damage caused by its internationally wrongful acts to all natural or legal persons concerned.” (Para 269).
Third States
- The ICJ enumerated obligations of third States, including to: “abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory; to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory; and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory.” (Para 278). They also must not “render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.” (Para 279).
UN
- The Court deferred to the General Assembly and the Security Council to determine the “precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory” and “what further action is required to put an end to the illegal presence of Israel.” (Para 281).
Sources: UN reports and documents. In Para 76, the Court indicated that it took evidence from UN reports, giving weight to “the care taken in preparing a report, the comprehensiveness of its sources and the independence of those responsible for preparing it.” Thus, the Court cited to the Pillay Commission’s reports 15 times and quoted the Commission more than 20 times. However, as noted above, the Pillay Commission either does not identify its sources or relies on one-sided sources with anti-Israel agenda. Therefore, the probative value of its reports is limited. Nevertheless, the ICJ expressly relied on these reports as “evidence” to support its legal conclusions. Other UN reports relied upon by the Court for “evidence” suffer from the same deficiencies.
July 22, 2024
The Pillay Commission welcomes ICJ advisory opinion, saying “the Israeli occupation of Palestinian territory is now illegal under international law.”
September 18, 2024
UNGA adopts resolution A/ES-10/24 titled Advisory opinion of the International Court of Justice on the legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem, and from the illegality of Israel’s continued presence in the Occupied Palestinian Territory making demands in line with the ICJ’s Advisory Opinion:
Israel
- Demanding that Israel end its “unlawful presence in the Occupied Palestinian Territory” within 12 months, including ceasing all new settlement activity and evacuating all military forces and settlers from the area; making reparations; and “not impeding” the Palestinians from exercising their right to self-determination.
Third States
- Calling upon third States to “not recognize as legal the situation”; “not render aid or assistance in maintaining the situation”; “not recognize any changes in the physical character or demographic composition, institutional structure or status” of the territory. This includes trade and economic boycotts, refraining from establishing diplomatic missions in Jerusalem, arms embargoes, and sanctions against individuals.
UN
- Calling upon the UN and international bodies not to recognize the situation as legal or to cooperate with it in any way.
- Calling to establish “an international mechanism for reparation for all damages, loss or injury from the intentional wrongful acts of Israel…”
- Emphasizing the need for accountability, including investigations and prosecutions at the national and international level.
- Requesting the Secretary-General to present a report with proposals for establishing a mechanism to follow up on Israeli violations of the prohibition against apartheid in Article 3 of the CERD.
The resolution was adopted by a vote of 124 to 14 with 43 abstentions.
In Favor: Includes China, Cuba, Iran, Pakistan, North Korea, Saudi Arabia, Syria, Vietnam, Zimbabwe.
Against: Includes Argentina, Czech Republic, Hungary, Paraguay, United States.
September 18, 2024
The Pillay Commission publishes its report to the General Assembly (A/79/232) which takes into account the ICJ’s Advisory Opinion finding that Israel’s “continued presence in the Occupied Palestinian Territory is unlawful” (Para 5), consistent with the Commission’s September 2022 report requesting that opinion. The September 2024 report found that Israel’s attacks on medical facilities in Gaza after October 7th were not attacks on legitimate Hamas military targets but “are in stark contravention of the International Court of Justice advisory opinion of July 2024.” (Para 88). The report also called on Israel to immediately end its “unlawful occupation” in line with the ICJ’s Advisory Opinion (Para 113) and called on Member States to comply with the advisory opinion by “not rendering aid or assistance to Israel in maintaining the occupation” and by “distinguishing in their dealings between Israel and the Occupied Palestinian Territory.” (Para 115).
October 18, 2024
The Pillay Commission publishes its latest Position Paper with its “legal analysis and recommendations” on implementing the ICJ Advisory Opinion. The legal authorities cited by the Commission consist mostly of non-binding and non-authoritative material-primarily the Advisory Opinion itself, other ICJ Advisory Opinions and orders mostly related to Israel, UN documents including the Commission’s own reports, UNGA resolutions, and a few secondary sources. Not surprisingly, the Commission’s position paper tracks its own prior conclusions from its September 2022 report and September 2023 position paper, as well as the ICJ’s July 2024 findings relying on the Commission’s earlier report and the September 2024 UNGA resolution making demands of Israel, third states, and the UN based on that ICJ Advisory Opinion.
Israel
- The Commission finds that Israel’s occupation is unlawful and must be ended as rapidly as possible, Israel must cease all settlement activities and evacuate all settlers, and it must make reparations.
Third States
- The Commission finds that third States must not recognize sovereignty claims by Israel over “occupied lands,” must not “render aid or assistance in maintaining the unlawful occupation,” meaning “financial, military and political aid or support.” States that do not “cease their aid and assistance to Israel” may be complicit with Israel’s “internationally wrongful acts.” Furthermore, States should distinguish in their dealings “between Israel and the Occupied Palestinian Territory,” which means not placing diplomatic missions in Jerusalem or issuing travel documents to settlers. States should also distinguish in “their military aid, foreign aid and support, and business enterprises.” Thus, the Commission advocates for arms embargos, economic boycotts, and cultural boycotts. Finally, it calls for full cooperation with the ICC investigation and for national authorities to conduct their own investigations and prosecutions under their own criminal laws.
UN
- The Commission finds that the UN must “distinguish in its dealings between Israel and the Occupied Palestinian Territory.” It advises the Security Council and General Assembly to “establish an ad-hoc Committee to comprehensively review the non-compliance and propose mechanisms to ensure implementation” by Israel like what was done in the Namibia situation. Finally, it recommends that the General Assembly “establishes an independent mechanism to investigate and document all claims in relation to the complex issue of reparations.”
About the Pillay Commission
On 27 May 2021, at the request of the Palestinian delegation and Pakistan on behalf of the Islamic group of states (the Organization of Islamic Cooperation), the Human Rights Council held a special session on “the Grave Human Rights Situation in the Occupied Palestinian Territory, including East Jerusalem.”
By a vote of 24 to 9, with 14 abstentions, the Council adopted the resolution “Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel.”
In favor: Argentina, Armenia, Bahrain, Bangladesh, Bolivia, Burkina Faso, China, Côte d’Ivoire, Cuba, Eritrea, Gabon, Indonesia, Libya, Mauritania, Mexico, Namibia, Pakistan, Philippines, Russia, Senegal, Somalia, Sudan, Uzbekistan and Venezuela.
Against: Austria, Bulgaria, Cameroon, Czech Republic, Germany, Malawi, Marshall Islands, United Kingdom, and Uruguay.
Through this resolution, HRC/30/1, the Human Rights Council decided to “urgently establish an ongoing, independent, international commission of inquiry to investigate, in the occupied Palestinian territory, including East Jerusalem, and in Israel, all alleged violations and abuses of international human rights law leading up and since 13 April 2021.”
The resolution further requested the commission of inquiry 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.”
The commission of inquiry was mandated to report to the Human Rights Council and to the General Assembly on an annual basis as from June 2022 and September 2022, respectively.
