We’ve seen it all before!
By Lawrence Nowosenetz
Former Acting Judge of the High Court, South Africa.
Navi Pillay, the South African head of the UN Commission of Inquiry on the Occupied Palestinian Territory presented findings of its latest report at a press briefing on 16 September 2025 (the Pillay Report). She said:
“The ongoing genocide in Gaza is a moral outrage and a legal emergency.”
DIRCO (the foreign ministry of the South African government) has trumpeted these findings, despite the complete lack of legal and factual basis for genocide in the Pillay Report. It is replete with poorly substantiated legal inferences of genocidal intent (dolus specialis) and distorted selective anti-Israel factual framing of the conflict with no attempt at objectivity.
The Pillay Report states confidently:
“Based on the above, the Commission finds that the Israeli security forces were aware that their military operations since 7 October 2023 would cause the deaths of Palestinians in Gaza. Furthermore, considering the duration of the military operations and reports of high numbers of deaths, it is reasonable to find that the Israeli authorities knew of the high numbers of casualties in Gaza since 7 October 2023. Nevertheless, Israeli authorities did not intervene to change the means and methods of warfare employed; on the contrary, the military operations persisted over time and caused even more Palestinian deaths. The Commission therefore finds that the Israeli authorities intended to kill as many Palestinians as possible through its military operations in Gaza since 7 October 2023 and knew that the means and methods of warfare employed would cause mass deaths of Palestinians, including children.”
A colossal piece of sophistry, untruths and tendentious conclusions.
Israel responded by strongly rejecting the report as a libellous rant and viewing it as politically motivated, declined to cooperate with the Commission. Pillay responded with “I wish they would tell us where we went wrong on these facts or just cooperate with us.”
Same old same old. We have seen it all before and a previous report didn’t end well. In 2009, the United Nations Fact Finding Mission on the Gaza Conflict, (the Goldstone Report) was released. It was established by the United Nations Human Rights Council (UNHRC) as an independent international fact-finding mission to:
“… investigate all violations of international human rights law and humanitarian law by Israel against the Palestinian people, particularly Gaza.”
This followed the three-week armed conflict in Gaza named Operation Cast Lead by Israel. It began on 27 December 2008 and ended on 18 January 2009. Prior to the war, Hamas had fired extensive rocket attacks on Israel. The Israel Defence Forces (IDF) launched a ground attack as well as aerial bombardment on Gaza. No hostages were captured by Hamas. There are similarities in the conduct of the 2023 Gaza war, but also huge strategic differences. The present war has become regional with rocket and missile attacks on civilian centres in Israel not only from Hamas and other Gaza-based Islamist militant groups, but from Hezbollah in Lebanon, the Houthis in Yemen and most notably – Iran.
Headed by South African Justice, Richard Goldstone it accused both Palestinian militants and the IDF of war crimes and possible international crimes against humanity. It was recommended that those responsible should be brought to justice. In 2011, Goldstone made a public retraction. He said he no longer believed that Israel intentionally targeted civilians in Gaza as a matter of policy. He further expressed regret that:
“Our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.”
The other authors of the report, however stood by the it. Despite an attempt by the Palestinian Authority, Israel was not brought before the International Criminal Court and Hamas enjoyed complete impunity from sanctions or legal prosecution.
It bears noting that the conduct of both sides during Operation Cast Lead was similar to the 2023 war. Although less extensive than present, Hamas had already built a system of tunnels in preparation for combat and weapon storage as well as plans to kidnap IDF soldiers. Civilian buildings including homes and mosques were booby trapped and used for weapons storage. During the 2009 Gaza war, Israeli Foreign Minister Tzipi Livni informed the media that Israel would strike all targets associated with what she called the “illegitimate, terrorist government of Hamas.” The IDF denied that it was targeting civilians and several soldiers including senior officers were indeed disciplined for misconduct.
This policy has continued in the 2023 war and there never was a genocidal plan aimed against civilians then or now. The Pillay Report completely ignores the principle that civilian structures such as homes, schools, hospitals and mosques lose their protected status according to the law of war when used for military attacks, as Hamas has indeed done.
During the 2009 Gaza war, the measures taken by the IDF to reduce civilian casualties became known: Extensive distribution of leaflets and phone messages to warn residents to evacuate from battle zones. The practice called “roof knocking” was used which consisted of warning calls before air strikes on residential buildings and sometimes a small non-lethal sound bomb was set off before imminent attack. These measures continued to be used in the 2023 war.
British military expert Colonel Richard Kemp, a former commander of British forces in Afghanistan, in his address to the UNHRC asserted that during the conflict, the Israel Defence Forces “did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare” and that Palestinian civilian casualties were a consequence of Hamas’ way of fighting, which involved using human shields as a matter of policy, and deliberate attempts to sacrifice their own civilians. He added that Israel took extraordinary measures to give Gaza civilians notice of targeted areas and aborted potentially effective missions in order to prevent civilian casualties. One searches in vain for references to any of the above most ‘ungenocidal’ conduct in the Pillay Report. She has, it seems, learned little if anything from the compromised and deeply flawed Goldstone Report.
The anti-Israel bias of Pillay is nothing new and is well documented. The NGO United Nations Watch on 14 February 2022, filed a recusal petition before the UNHRC against Navi Pillay from the same Commission of Enquiry. It fell on deaf ears. The petition presented a plethora of prior public partisan statements by her and consequently her failure to meet the minimal requirements of impartiality.
As Secretary-General of the UN Durban Review Conference in 2009, Pillay exonerated the infamous antisemitic Durban conference of 2001, and she demonized Jewish groups that sounded the alarm, calling them “lobby groups”. On 31 May 2010, while serving as UN High Commissioner for Human Rights, Pillay declared that “the Israeli Government treats international law with perpetual disdain.” Never throughout her UN tenure did Pillay employ such language regarding any other country – not even against serial violators such as China, Russia, Iran, Syria or North Korea. In November 2017, Pillay said “Apartheid is now being declared a crime against humanity in the Rome Statute, and it means the enforced segregation of people on racial lines, and that is what is happening in Israel.” In June 2020, Pillay signed a petition to boycott the Jewish state, entitled “Sanction Apartheid Israel!”. On 14 June 2021, mere weeks after the brief 2021 Hamas-Israel conflict, Pillay publicly declared Israel guilty of crimes against the Palestinians. She signed a joint letter to U.S. President Biden, decrying Israel’s “domination and oppression of the Palestinian people,” calling on the U.S. to “address the root causes of the violence” by ending Israel’s “ever-expanding discrimination and systemic oppression.” This was in regard to the clashes at Al Aqsa Mosque in Jerusalem where the letter alleged “aggressive actions by Israeli forces” against “peaceful protesters and worshippers,” which amounted to “forced dispossession of Palestinians,” the“latest evidence of a separate and unequal governing system.”
Pillay has consistently singled out Israel for condemnation over alleged war crimes, human rights abuse and racism and was a consistent supporter of the Palestinian campaign to use the language and mechanisms of international law to delegitimize Israel as a criminal state. United Nations Watch is a voice of conscience monitoring the UN and, in its petition, reminded that impartiality is a requirement under international law. Indeed, legal scholars know that impartiality as the first principle of fact-finding. It is set out as a requirement in Articles 3 and 25 of the UN Declaration on Fact-Finding. Since the era of Roman Law, the legal maxim nemo iudex in sua causa – no one should be a judge in his/her own cause has been a cornerstone of justice. Pillay has made her career of condemnation of Israel a personal cause. Why then would Israel cooperate in her transparent campaign to demonise and unjustly denounce Israel.
In response to her disingenuous plea for assistance, here is where the Pillay Report went wrong on the facts. Firstly, the lack of assistance of Israel is no excuse for the lack of corroboration from multiple non-governmental Israel and Western sources and researchers. The Pillay Report suffers from the fallacy of certainty – confidently reporting on unverified and unreliably substantiated figures relating to fatalities and starvation. Papers have been published carefully exposing major methodology flaws and overstatements and the unreliability of Hamas data or overreliance on Hamas approved reporting. Pillay neglected to consult Western military experts on asymmetrical urban warfare such as Major John Spencer of the USA who has been to Gaza and researched extensively on the war. Nowhere is there any sign of reference to the Begin Sadat Centre for Strategic Studies: Debunking the Genocide Allegations: A Re-examination of the Israel-Hamas War from October 7, 2023 to June 1, 2025. Although the English translation only appeared in September 2025, the Hebrew version was published in July 2025. Consisting of 310 pages, it is a far more in depth factual and scholarly work eclipsing the Pillay report in accuracy, objectivity and detail. While even a brief survey of this work is beyond the scope of this article, some of the chapters indicate its breadth and accuracy in analysing the 2023 Gaza war. It does not avoid criticism of Israeli policy makers nor does it sidestep misconduct and possible war crimes by the IDF.
Chapter 1 is ‘The Question of Starvation’, a highly fraught topic which is examined in detail with credible data of the number of trucks entering Gaza. Even taking into account the suspension of food deliveries in 2024, there were sufficient food supplies in Gaza and the allegations of famine are false. Much needed exposure is made of the diversion by Hamas of food for exploitation by black market sales and for own consumption. An aspect not examined by the Pillay report.
A chapter is devoted to what is termed “The Missing Context: Urban Warfare and Hamas’s Human Shields Strategy”, also a key omission from the Pillay Report. Massacre and deliberate killing, the question of Indiscriminate Bombing are addressed. Chapters 5 and 7 deal with the contentious question of casualty counting and assessment in conflict zones. The vital distinction between civilians and combatants overlooked by the Pillay Report are more carefully assessed. This has become a highly emotive issue with allegations made that Israel targets journalists. Many were found to have been active Hamas operatives. A comparative study is made with the war in Iraq, another vital methodology in evaluating legal consequences. Chapter 8: The Inverted Funnel: How to Study Conflict Zones reveals the problem with limitations on freedom of reporting in Gaza by Hamas and the repetition and expansion of this compromised data by media and researchers.
Pillay and her fellow commissionaires, Miloon Kothari, and Chris Sidoti have all recently announced their resignations from the Commission of Inquiry , Pillay citing age and the others on the basis of “other commitments.” The sudden resignation of all three officials follows the US decision to impose sanctions on UN Special Rapporteur Francesca Albanese, another UN official with a history of extreme anti-Israel statements, including denying Israel the right to self-defense against Hamas. No one is left standing to face criticism of this tawdry report.
Battered and bruised, but still very much alive, truth and justice will prevail while the Pillay Report will gather dust like the discredited Goldstone Report as another failed attempt to intentionally distort international law in order to vilify the Jewish State of Israel.
*Feature picture: Probing or Plotting. A year before the October, 2023 massacre and consequent war, UN commissioners Navi Pillay (centre) discusses with (l-r) Chris Sidoti and Miloon Kothari their probe into Israel and the Palestinians at the United Nations in New York. October 27, 2022. (Luke Tress/Times of Israel).
About the writer:
Now retired, Pretoria-born human rights and labour lawyer, Lawrence Nowosenetz practiced at the Pretoria and Johannesburg Bar. Recipient of a Fulbright Scholarship, Nowosenetz completed an internship in the USA and served as a part-time Senior Commissioner at the Commission for Conciliation Mediation and Arbitration (CCMA) as well as a panellist at Tokiso Dispute Settlement – the largest private dispute resolution provider in South Africa. He has also served as an Acting Judge of the Hight Court, South Africa.
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