DCU Conflict Institute

By Dr David Keane, DCU Conflict Institute

On 22 August 2024, the UN Committee on the Elimination of Racial Discrimination (CERD/the Committee) published the report of the ad hoc Conciliation Commission (the Commission) in Palestine v Israel. This marks the final stage of the inter-State communications procedure initiated by Palestine in April 2018 under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the first inter-State case to be completed before a UN human rights treaty body. The decision, however, must be considered a missed opportunity to engage in detail with Palestine’s arguments, particularly on Article 3 and apartheid. This post will consider the shortcomings in the decision and reflect on where CERD might go from here in relation to the situation in the Occupied Palestinian Territory (OPT).

First, just to note the distinction between CERD and the Commission as set out in ICERD’s inter-State communications mechanism. Under Article 11, CERD decides on preliminary questions of jurisdiction and admissibility. If the case progresses, an ad hoc Conciliation Commission comprising five persons is appointed and tasked with examining the issues of substance. As discussed previously on this blog, if the parties to the dispute agree, then the Commission can be composed of any person (with some minor restrictions) including external members. If not, the Commission is elected from among CERD members. In Palestine v Israel, there was no agreement between the parties and so the Commission is comprised entirely of CERD members. But it is not per se a CERD decision, rather a decision of the Commission that is then communicated (i.e. published) by CERD.

Apartheid

Article 3 ICERD reads: ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. Palestine v Israel specifically litigated the question of apartheid under Article 3. Palestine’s communication, some 350 pages long, requested findings to the effect that ‘Israel’s policies and practices in the occupied territory of the State of Palestine constitute apartheid within the meaning of Art. 3 CERD’. The issue was that CERD has in the past reached findings of a breach of Article 3 by Israel without differentiating between its two key terms, racial segregation and apartheid. Hence, Palestine specifically sought a determination on apartheid in the OPT (see pp. 292-326 of its communication).

The Commission’s report made a finding of systemic and unlawful discrimination in the OPT that amounts to ‘a situation of racial segregation’ (para 48). It did not address apartheid at all, offering no legal analysis on this. Palestine’s communication discussed in detail the need for a definition or understanding of apartheid under Article 3, in which to test a legal claim. Since ICERD provides no definition, Palestine considered the definitions in the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) as well as the Rome Statute of the International Criminal Court as potentially offering a legal understanding of apartheid for the purposes of interpreting the term under Article 3. Palestine then urged ‘an objective, clear and legal description of the principal elements and characteristics of apartheid against which to measure and judge the question whether Israel applies apartheid in the OPT’.

This did not happen, and Palestine’s over 30 pages of analysis on this issue in its communication 

were ignored by the Commission report. In that regard, it is a “decision” that offers no reasoning. It provides no definition or understanding of apartheid in which Palestine’s claim might be tested; no measurement of whether these elements and characteristics are found in the OPT; and no judgment of the question.

Furthermore, while it refers to reports of UN Special Rapporteurs on the OPT, it does not refer to the conclusion of the 2022 report of UNSR Michael Lynk among others which considered that the situation in the OPT ‘satisfies the prevailing evidentiary standard for the existence of apartheid’. Remarkably, the Michael Lynk report is referenced in other contexts (see here footnote 51) but its key finding is not mentioned. The report also does not refer to a number of other sources assessing the situation in the OPT as apartheid, such as Yesh Din, B’Tselem, Human Rights Watch, Amnesty International, the Human Sciences Research Council of South Africa, and indeed senior Israeli diplomatic and security figures. To not even acknowledge the substance or strength of the claim in light of these many sources appears a dereliction of responsibility on the part of the Commission.

The ICJ Advisory Opinion on Palestine

The report in Palestine v Israel comes over a month after the findings of the International Court of Justice (ICJ/the Court) in its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, which was delivered on 19 July 2024. However, it was clearly drafted before that Advisory Opinion, which is not referenced. In that regard, it is important to recognise that according to Article 13(2) ICERD:

‘The Chairman of the Committee shall communicate the report of the Commission to each of the States parties to the dispute. These States shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission.’

Hence, the report has to be finalized and cannot be published until at least a three month period has been allowed for the disputing States Parties to accept or not the recommendations. In fact, the responses of both Palestine and Israel to the report have also been published, with the former noting that the Commission’s report was forwarded to it on 13 March 2024.

Nevertheless, there were materials before the ICJ at this time that the Commission could have considered. In July 2023, States provided written statements to the Court for the purposes of the Advisory Opinion. In these written statements, fully 21 States and organisations expressly concluded that Israel is committing apartheid in the OPT. This included submissions from two States – Namibia and South Africa – which had direct experience of what constitutes an apartheid regime. As South Africa set out in its 25 July 2023 submission: ‘Israel…continues to impose an institutionalised regime of systematic racial oppression and discrimination against the people of Palestine which satisfies the prevailing evidentiary standard of the international crime of apartheid’ (para 101). Namibia and South Africa then expressed these views in hearings before the Court, held in February 2024 while the Commission was still drafting its report. As South Africa stated to the Court on 20 February 2024:

‘it is clear that Israel’s illegal occupation is also being administered in breach of the prohibition of the crime of apartheid … Mr President, South Africa bears a special obligation, both to its own people and the international community, to ensure that wherever the egregious and offensive practices of apartheid occur, these must be called out for what they are and brought to an immediate end’ (paras 10-11).

CERD spent 25 years fighting apartheid in Namibia and South Africa from 1970-94; surely their views were at least worth considering on this matter, in light of the particular question put to the Commission. The ICJ’s Advisory Opinion would find a breach of Article 3 ICERD with a number of Separate Opinions interpreting this as apartheid (see here and here).

Conciliation

It is important to recognise that Articles 11-13 ICERD sets out a process of conciliation which is a particular type of dispute-resolution mechanism, aimed at an ‘amicable solution’. It features in the text of only three UN human rights treaties – ICERD, the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) – and does not feature in the inter-State communications mechanisms of later treaties. Hence, the report must be read in that light, and the Commission clearly (and rightly) took its conciliatory role seriously. Following CERD’s decisions on jurisdiction and admissibility, Israel had made it clear that it would no longer engage with the process (as discussed by Eiken here). As the report recounts, the Commission explored numerous avenues for engaging Israel to participate in conciliation proceedings and to make available its good offices, to no avail. It carried out informal meetings with potential facilitators to approach Israel with regard to the dispute. It even requested a country visit to Israel, specifying that the visit could take place in Tel Aviv or other places in Israel agreed upon by the Israeli authorities (paras 27-28).

It may be noted that a good offices country visit under ICERD has occurred only twice in its history, when CERD members visited the then Federal Republic of Yugoslavia and Croatia in 1993 (see here paras 22-29). Articles 11-13 makes no reference to the potential for such visits and neither did the Commission’s Rules of Procedure issued in April 2022 (as pointed out here). This may show welcome innovation in its mandate, but the report also recounts that ‘the State of Palestine invited the commission to undertake, as soon as possible, an in situ visit to the territory of the State of Palestine to gain a first-hand impression of the alleged violations of the Convention (para 18)’, which seems not to have been taken up. Thus, while Israel rebuffed the Commission’s overtures to visit, Palestine’s invitation to visit was ignored without explanation. This seems to reward the bad faith actor, a theme that runs through the report as the Commission repeatedly tries to engage Israel, clearly delaying the proceedings. The case would take over six years in total.

Articles 11-13 is a mechanism of conciliation, but it is also specifically envisioned as a means of complaint that progresses with or without the consent of both Parties to the dispute. Evidently, Israel was not going to engage, and while the efforts of the Commission to involve Israel in conciliation are to be commended, once this was unsuccessful, its task was to fully address the arguments of the complainant and uphold the standards of the Convention. In the end, the report reads as significant time spent trying to engage Israel and none at all on the question of apartheid in the OPT, the substance of the claim, displaying at a minimum a lack of balance in fulfilling its mandate.

Gaza and Genocide

While Gaza is discussed, at no point does the Commission raise the issue of genocide or genocide prevention. This was not specifically a genocide case, but CERD itself has linked systematic discrimination with genocide in its 2005 Declaration on the Prevention of Genocide. The Declaration notes that ‘genocide is often facilitated and supported by laws, policies and practices that may indicate systematic or systemic discrimination based on race, colour, descent, or national or ethnic origin’. It warns that ‘persistent patterns of racial discrimination could escalate into violent conflict and genocide’.

The Commission report does note that it is ‘deeply concerned by the position expressed by the Defense Minister of Israel, who stated that Israel was fighting “human animals” (para 43).’ But 

an October 2023 statement by CERD under its Early Warning and Urgent Action procedure went further than this, calling it ‘language which could incite genocidal actions’. A December 2023 decision by CERD under the same procedure addressed genocide in more detail, highlighting a ‘pattern of Israeli attacks that target or impact civilian infrastructure leading to a catastrophic humanitarian crisis in the occupied Gaza Strip and raise serious concerns regarding the obligation of Israel and other State parties to prevent crimes against humanity and genocide’. Neither intervention is referenced.

The ICJ’s provisional measures order in South Africa v Israel from January 2024, in which the Court found that the right of the Palestinians in Gaza to be protected from acts of genocide is plausible, is also absent. South Africa’s application to the Court included references to CERD’s 2005 Declaration and its December 2023 decision (see here para 3). It also emphasised institutionalised discrimination and apartheid as the ‘broader context’ to the alleged acts of genocide (paras 2 and 35).

The Settlements and Third States’ Obligations

The report does provide some significant outcomes. It notes that ‘the continuation of the colonization through settlements and outposts in Palestinian territories is in itself an obstacle to a possible amicable solution to the Israeli-Palestinian dispute’ (para 48). It then links settlements with Article 3, stating that ‘These realities, together with the restrictions of movement imposed on Palestinians through checkpoints, as well as limited access to roads, natural resources, land and basic social facilities, amount to a situation of racial segregation.’ This is an important finding, linking the settlements with racial segregation under Article 3, and in line with the ICJ Advisory Opinion which found a breach of Article 3 based on the near-complete separation between the settler and Palestinian communities.

The report also engages the obligations of all States Parties to ICERD, holding that these must ‘[e]nsure that their resources are not used to enforce or support discriminatory policies and practices against Palestinians living in the Occupied Palestinian Territory’ (para 52(d)). Although phrased differently, this appears largely analogous to the third States’ obligation affirmed by the ICJ Advisory Opinion not to recognise the illegal situation, or render aid or assistance in its maintenance. Palestine’s response to the Commission report then further notes: ‘The State of Palestine reserves its right to call for a meeting of the State parties of CERD in order for the community of State parties of CERD to follow up on the Commission’s recommendations addressed to third States.’

Conclusion

The Commission report does provide one recognition of Palestine’s claim of apartheid, stating in its findings of fact: ‘The commission is of the view that those acts may amount to a situation of apartheid if no action is taken by Israel to effectively address the issues raised’ (para 11). But the question remains as to how exactly such a future determination could be arrived at, when no consideration of the legal arguments – the meaning of apartheid as opposed to racial segregation in Article 3, and how a claim of apartheid may be assessed – has been made. This fits a pattern of UN actions on Palestine, whereby, as Imseis puts it, ‘the promise of justice through international law is repeatedly proffered…but its realization is interminably withheld’ (p. 21).

The Commission is an ad hoc body that existed only for this one case, which has now ended. The complaint cannot proceed further to the ICJ given Israel has a reservation to Article 22. But the apartheid question in the OPT will return before CERD. The Committee will have to engage with this question in the reporting or other procedures, with little assistance from the Commission findings, although it will surely draw on the ICJ Advisory Opinion. We may also see Palestine call for a meeting of States Parties to ICERD, as indicated. CERD is the principal UN treaty body tasked with the 

elimination of all forms of racial discrimination, including racial segregation and apartheid. If it cannot address a question of apartheid expressly put before it, then it has to reflect on what exactly it is for.

This blog first appeared on EJIL:Talk!, the blog site of the European Journal of International Law.