Rania Muhareb is an Irish Research Council and Hardiman PhD scholar at the Irish Centre for Human Rights in the School of Law at the National University of Ireland, Galway. She is a Policy Member of Al-Shabaka—the Palestinian Policy Network, and a former legal researcher and advocacy officer with the Palestinian human rights organisation Al-Haq.
The ongoing United Nations Commission of Inquiry on Palestine, made up of Navi Pillay (South Africa), Miloon Kothari (India), and Chris Sidoti (Australia), presented its first report to the Human Rights Council at its 50th Session on 13-14 June 2022. The report, published on 7 June, found that Israel’s ‘perpetual occupation,’ including the 15-year blockade of the Gaza Strip, and ‘longstanding discrimination’ against Palestinians inside the Green Line constitute root causes of recurrent human rights violations in Palestine, ‘are all intrinsically linked, and cannot be looked at in isolation’ (para.72).
Reflected in its unprecedented mandate and scope, the Commission’s first report signals a shift in the UN’s to-date fragmented approach to Palestine, with its refusal to address the human rights of the Palestinian people as a whole. This blog post briefly recalls the unprecedented nature of this latest UN investigatory body on Palestine before considering the strengths of the Commission’s first report and what we can expect (and hope) from its investigation moving forward.
An Unprecedented Mandate
Established by the Human Rights Council on 27 May 2021, the ongoing Commission of Inquiry on Palestine is the latest in a long line of investigatory bodies, including fact-finding missions, committees, and mandates established by the UN on Palestine for over seven decades. Despite this, the Commission’s novelty lies in its unprecedented mandate to investigate the root causes across historic Palestine (both sides of the Green Line) on an ongoing basis.
Under Human Rights Council Resolution S-30/1, the Commission is mandated 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’ (para.1). It is further mandated to ‘identify patterns of violations over time by analysing the similarities in the findings and recommendations of all United Nations fact-finding missions and commissions of inquiry on the situation’ (para.2(e)). It is this latter aspect of its mandate which the Commission’s first report addresses. The Commission found that the failure to implement past recommendations ‘is at the heart of the systematic recurrence of violations’ across historic Palestine (p.1).
Addressing the ‘Full Context’
In line with the Commission’s mandate, it has sought ‘to give priority to broad questions and seek to identify overall patterns, policies, historical legacies and structural inequalities that affect the enjoyment of human rights of all individuals in the Occupied Palestinian Territory, including East Jerusalem, and in Israel’ (para.10).
The Commission’s report highlighted a ‘culture of impunity’ for violations by all duty bearers in Palestine (para.66), including the Palestinian Authority, which ‘frequently refers to the occupation as a justification for its own human rights violations’ (para.75). At the same time, the report stressed ‘the asymmetrical nature of the conflict’ with past recommendations ‘overwhelmingly directed towards Israel’ (para.28). The Commission listed ending the occupation (para.69) and impunity as ‘the highest priority’ (para.71) and noted that it would assess the responsibilities of third states and corporations in this regard (para.79).
At the same time, the Commission called for addressing the ‘full context’ (para.72), arguing that ending Israel’s occupation alone is not sufficient to ending discrimination throughout historic Palestine (para.77). It also recognised that ‘persistent discrimination’, displacement, and dispossession of Palestinians, as well as demolitions, settler violence, and the blockade of the Gaza Strip, have and will continue to fuel escalations of conflict. Here, the Commission’s forward-looking mandate becomes apparent as well as the importance of its ongoing nature.
Finally, the report examines violations of individual as well as collective rights, underscoring that while ending Israel’s ‘perpetual occupation’ is essential for the Palestinian people to exercise their right to self-determination (paras.30, 69), ‘Israel has no intention of ending the occupation, has clear policies for ensuring complete control over the Occupied Palestinian Territory, and is acting to alter the demography through the maintenance of a repressive environment for Palestinians and a favourable environment for Israeli settlers’ (para.70).
A Comprehensive Approach
The Commission’s report notes that it ‘received numerous requests for it to issue key findings as soon as possible on relevant violations, abuses and international crimes being committed’ (para.78). Nevertheless, it emphasised that it will ‘conduct its own investigations and legal analysis into alleged violations and abuses’ (ibid). This being said, the Commission’s first report has already gone further than previous UN investigatory bodies by adopting a comprehensive approach to Palestine and addressing the fragmentation of the Palestinian people.
As the report shows, Palestinians are ‘cut off from each other’ throughout historic Palestine (para.42). Israeli checkpoints, the wall, blockade of the Gaza Strip, movement restrictions, separate legal regimes in the West Bank, and the denial of family unification across areas of Israeli control are just some of the policies entrenching Palestinian fragmentation (paras.42, 43, 45, 46). The report highlights Israel’s racially discriminatory legislation, including the 2018 Jewish Nation State Basic Law, which the UN Human Rights Committee concluded in March 2022 ‘may exacerbate pre-existing systematic and structural discrimination against non-Jews in the State party.’ Nowhere is Israeli racial discrimination more apparent than in the Commission’s discussion of the recently renewed Citizenship and Entry into Israel Law (Temporary Order), which denies Palestinian families the right to live together, and which Adalah has called ‘one of the most racist and discriminatory laws in the world.’ The Commission notes that ‘This Law comes in stark contrast to the Law of Return (1950), which provided for the right of “every Jew” to settle in Israel’ (para.46). The latter constitutes one of the main legal instruments entrenching Israeli apartheid and Zionist policy into Israeli law.
Overall, while the Commission has not (yet) analysed apartheid and settler colonialism in Palestine, it has highlighted some of the manifestations of the Israeli regime and its underlying Zionist logic of displacing and replacing the Palestinian people on the land. By citing the State of Palestine’s accession to the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (p.3), the Commission has signalled that apartheid may form part of its analysis moving forward.
In its upcoming reports, the Commission seeks to examine ‘thematic areas’ and identify ‘recurring patterns’ of violations (para.80). It will apply international criminal law throughout its geographic scope, which includes the portions of historic Palestine under the jurisdiction of the International Criminal Court (ICC) (para.25). The crime of apartheid, as well as the crimes of population transfer and extensive destruction and appropriation of property, are enshrined as crimes against humanity and war crimes in the ICC’s Rome Statute.
Critically, given its mandate to address ‘all underlying root causes’, the Commission’s first report has made important references to the experience of Palestinian refugees. It concluded by noting: ‘Given that approximately 50 per cent of the Palestinian population resides outside the Occupied Palestinian Territory and Israel, the Commission will seek to engage with the wider Palestinian diaspora located in neighbouring countries and further afield’ (para.80). The report also noted with concern ‘the impact of home demolition on [Palestinian] children, which also revives the trauma that their parents have already undergone with their own experience of dispossession and displacement, and may affect generations to come’ (para.55). Addressing the ‘full context’ in Palestine means recognising the ongoing Nakba (catastrophe) and the denial of the right of return of Palestinian refugees as one of the root causes of Palestinian oppression since 1948.
The ongoing UN Commission of Inquiry was established in the context of the Palestinian Unity Intifada (uprising) of May 2021. The Intifada emphasised the unity of the Palestinian people and that ‘Zionism has sought to control us… to fragment our political will, and to prevent a united struggle in the face of racist settler colonialism in all of Palestine.’ That the Commission’s first report has examined the Israeli occupation and discrimination inside the Green Line as ‘intrinsically linked’ and committed to engaging the voices of Palestinians in exile are key indicators of an effort to address the ‘full context’ and to counter Israel’s fragmentation of the Palestinian people, which practitioners have highlighted as a main tool of Israeli apartheid.