An Inquisition, Not an Inquiry

In May 2021, the United Nations Human Rights Council launched the “Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel,” not-so-helpfully abbreviated as (COI OPTEJI). The Commission’s work is open ended and the Commission’s three members, like the Human Rights Council itself, are all well-known partisans of the anti-Israel cause with long public records of inflammatory statements about Israel and Jews. Even the timescale of the commission’s investigation is open-ended, covering events “leading up to and since April 13, 2021.” In the tradition of anti-Israel activism, this will most likely mean every event is investigated as far back as an Israeli action can be held responsible, and then no farther.

The Commission operates under an essentially double mandate, as spelled out in its “terms of reference” document. First, it seeks to investigate “all alleged violations of international humanitarian law and alleged violations and abuses of international human rights law.” Second, it seeks to identify “underlying root causes of recurrent tensions, instability, and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.” In other words, the output needs to be both a narrow legal analysis as well as a broader historical reckoning.

The playbook for the first mandate is well known, and its manifestations in the first two interim reports of the COI OPTEJI are entirely unsurprising. “Laws” are created for the Israeli context which apply to Israel alone. Gaza is occupied territory somehow, despite there being no Israeli soldiers or civilians in the territory since 2005. Palestine is a “state” though no legal definition of statehood could possibly apply to either the Palestinian Authority in the West Bank or the Hamas regime in Gaza. Prohibitions on “transfer” of populations to or from occupied territory are interpreted one way to condemn Israeli settlements and then another radically different way in order to condemn Israel’s Citizenship Law. Discussions of the Golan are scrupulous about references to Israel occupying the territory from Syria, but all the sentences turn passive when discussing the possession of the West Bank and Gaza prior to Israel’s conquest of the territories in 1967. Why? Because even mentioning that Israel conquered them from Jordan and Egypt, respectively, empties out the claims of the “sovereignty” of the “occupied Power.” The Green Line separating Israeli and Jordanian forces at the end of the 1948 war is treated as an international boundary (though not with Jordan) despite the fact the UN-brokered armistice agreement explicitly stipulates that it is no such thing. Israel’s naval blockade of Gaza, which even the UN’s own Palmer commission found is perfectly legal in the laws of war is repeated referred to as a form of “collective punishment.”

The second mandate, the one examining root causes rather than legal formalities (even invented ones), is the more innovative one. The idea is not just to look at violations of the rules of war but at the deeper historical reasons why the situation of Israelis and Palestinians is so bleak.

There are, however, some unspoken ground rules. The Arab war against the Jewish state will not be mentioned, nor will the comprehensive Arab ethnic cleansing of Jewish communities throughout the Middle East. There may be some anodyne mentions of Palestinian violence against Israeli civilians, always coupled with references to Israeli military action, but there will be no assessment of the larger cause for which that violence was undertaken. And there will definitely be no mention of repeated peace offers including an independent Palestinian Arab state that were violently rejected because they involved a full reconciliation with the existence of a Jewish state next door.

A meeting point of the two mandates comes in nearly every reference to the occupation. “The occupation of territory in wartime is, under international humanitarian law, a temporary situation,” the second interim report from September 2022 notes. But neither report will address the war that led to the occupation nor the failure to resolve the conflict that prevents the occupation from ending. The omertà regarding the Arab rejection of a Jewish state and the repeated violent attempts to undo its creation means that the Commission will mention the occupation many times, but never, ever give any treatment to how it came about or why it has persisted for so long.

The occupation began when Israel defeated three Arab armies in a war whose openly stated goal (in the weeks and months leading up to it) was the destruction of Israel. The occupation persisted because the defeated powers refused to recover occupied territories by means of making peace with Israel, as called for by UN Security Council resolutions. Whoever eventually relented and did negotiate peace with Israel did indeed recover occupied territory.

Who the territory was occupied from is left deliberately vague. The few entries in the reports on the Golan make very clear that Israel conquered it from Syria (though, naturally, they make no mention of the human rights situation in Syria itself). But even in the detailed legal discussion of the status of the West Bank and Gaza, there is not a single mention of Jordanian or Egyptian rule over these territories. An acknowledgement of those two states’ conquest of these territories would necessitate acknowledging both that there was no State of Palestine for Israel to occupy and that there was a series of wars in what we used to call the Arab-Israeli conflict.

The first interim report, published in May 2022, concludes that “prima facie evidence… convincingly indicates that Israel has no intention of ending the occupation.” It’s an odd assertion to make in light of historical evidence. In all three rounds of final status talks since the Oslo process began (2000-1, 2007-8, 2013-4), Israel made its willingness to withdraw from nearly all occupied territory in exchange for peace public and known, but all three rounds ended with Palestinian rejections of mediated offers for Palestinian statehood, without any real pushback from Arab public opinion or from the various international bodies aligned with the Palestinian cause.

But nowhere is rejection of Israel mentioned in either the reports, the terms of reference, or in any of the hearings. And for a commission so keen to find evidence of “systematic discrimination and repression based on national, ethnic, racial or religious identity,” they are surprisingly silent on antisemitism in the Arab World as a cause, or even an effect, of the conflict. Nothing about the pogroms of Arab masses against Jewish minorities in the first half of the twentieth century, nothing about the Arab attempt to wipe out the Jewish state in 1948 and 1967, nothing about the mass expulsions and ethnic cleansing of Jewish minorities that had lived in the Middle East for millennia in the middle of the twentieth century, and nothing about the decades of violent attacks on Jews and Jewish targets throughout the world in the name of the Palestinian “struggle.” Do any of these things have any bearing on Israel’s actions or on the reasons why Jews in the Middle East feel so strongly that they need a state? The COI won’t ask, the witnesses it calls won’t say, and its reports won’t even mention.

The second mandate isn’t actually a call to investigate the roots of the conflict and the ways to solve it. It is, rather, a denial that there ever was a conflict. Not just a denial of armed action by Arabs against Jews, but a denial of the cause they fought for.

In the intellectual ecosystem of obsessive Israel-hatred, this is why the “apartheid” charge is so crucial — and why the groundwork is already being laid for the next buzzword that will inevitably be thrown at Israel within the coming decade, “genocide.”

The shift from Arab-Israeli conflict­ to Israeli-Palestinian conflict was needed to deny that a tiny minority in the middle east was being attacked by the overwhelming majority, which had mostly succeeded in wiping out that minority’s presence wherever it was unable to defend itself. The shift from Israeli-Palestinian conflict to occupation was needed to deny a conflict at all and thus any kind of reckoning with the actions of both sides rather than just the one that had won most of the wars. If the problem is just the occupation, then the whole issue is just the sin of the Israelis. The shift from occupation to apartheid means that the sin cannot be expiated. It is rather, essential to the existence of Israel. An occupation can end, but if the whole concept of a Jewish state is itself evil, then pathological hatred of it can be maintained and nurtured regardless of what it does.

In this ecosystem, the pathology that animates the Arab war against Jews in the Middle East is both unspoken and implicitly adopted. Obsessive hatred of Israel, the cause for so many pointless wars, is not only given no explanatory power for the Palestinian predicament, it is actually internalized as a normative position of human rights. Israel isn’t conceived of as a state that may do bad things, but rather as an entity whose very existence is an affront to all that is good and righteous in the world.

Sometimes this becomes almost self-parodying. The COI’s report promises that a “gender analysis is being mainstreamed throughout the Commission’s work.” To this end, every few pages there will be a random reference to Israel’s supposed crimes against women.

The non sequiturs about gender are far more revealing and informative than intended. At first glance, they are disjointed, out of context, and sometimes make improbably inferences about the actual parties in the conflict (is Palestinian society really such a feminist paradise in comparison to Israeli society?). But if you are theologically committed to the idea that one people bear the sins of humanity with them, then it is not a great leap attaching whatever the social ill of the day is to that people. Next year’s report on Israeli abuses might include a few random mentions of how the occupation contributes to climate change or racist policing in the West or whatever new issue arises without materially affecting its quality.

This is not nearly as new as it seems.

Shany Mor is Director of Research at United Nations Watch. 

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