19 Nov A Procedural Win in Palestine’s Quest to Seek Justice for Israel’s Apartheid Regime before the CERD
[Nora Salem is Assistant Professor, Head of the Public International Law Department at the German University in Cairo and Human Rights Law Reporter for Oxford Reports on International Law. She has recently published an entry for the MPEPIL on Sharia Reservations to Human Rights Treaties, as well as a book on The Impact of the UN Women’s Rights Convention on Egypt’s Domestic Legislation (Brill).]
In Palestine’s quest to seek justice for Israel’s Apartheid regime (for legal analysis, see amongst others: Human Rights Watch Report, Prof. Noura Erakat or Prof. Carola Lingaas) in the Occupied Palestinian Territory (‘OPT’), Palestine brought an inter-State communication before the Committee on the Elimination of All Forms of Racial Discrimination (‘CERD’) on 23 April 2018, which was decided in favor of Palestine, on matters related to jurisdiction, on 12 December 2019, and admissibility, on 20 May 2021.
On 3 January 1979, Israel ratified the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’). The State of Palestine, acceded to the ICERD on 2 April 2014. In response, Israel formally issued a Depositary Notification to the United Nations (‘statement’), whereby it objected to enter into treaty relations with Palestine, on 16 May 2014.
On 23 April 2018, Palestine submitted an inter-State communication under Article 11 ICERD against Israel claiming that Israeli practices in the OPT constituted a “system of discriminatory measures” violating Articles 2, 3 and 5 ICERD.
Israel primarily argued against CERD’s jurisdiction because its statement to Palestine’s accession to the ICERD entailed an objection to enter into treaty relations with Palestine all together and included ICERD’s enforcement mechanisms, namely inter-State communications. Palestine, on the other hand, argued that bilateral treaty relations were not required as ICERD’s obligations had ius cogens and erga omnes character. Thus, its obligations, including its enforcement mechanisms, were owed towards all.
Moreover, Israel argued against the communication’s admissibility because Palestine failed to establish the exhaustion of local remedies. If Palestine believed that Israel’s legislation or policy violated norms embodied in the ICERD, there were avenues available to challenge such legislative or administrative practices domestically. Palestine, on the other hand, argued that the exhaustion of local remedies under Article 11 (3) ICERD was not required where violations amount to an administrative practice.
The CERD held that it had jurisdiction. The activation of an inter-State complaint before the CERD did not require bi-lateral treaty relations, because ICERD’s obligations contained core obligations applicable erga omnes, were of a non-synallagmatic character and subject to collective guarantee and enforcement (para. 3.20). This was the case because ICERD belonged to a special category of treaties inspired by superior common values shared by the international community. The ICERD had a particular character within the category of human rights treaties, considering that it was the first universal human rights treaty drafted after the international crime of genocide, recognizing that racial discrimination was a scourge which had to be combatted by all available means as a matter of highest priority (para. 3.36). The CERD concluded that a State party could not -through unilateral action- bar another State party from triggering an enforcement mechanism established by the ICERD to the extent that such mechanism was essential to guarantee the equal enjoyment of rights of individual or groups set forth in the ICERD (para. 3.37). In addition, the CERD developed that the inter-State communication mechanism under Article 11 ICERD was the only compulsory one among all universal human rights treaties, meaning it did not require the consent of the responding State in order to be activated (para. 3.40). As a consequence, Israel’s objection lacked relevance. This decision was dissented by five CERD members mainly for contradicting the principle of consent (annex).
The CERD held that the communication was admissible (para. 65). While Article 11 (3) ICERD required that all available domestic remedies were invoked and exhausted in conformity with the generally recognized principles of international law, the jurisprudence of regional human rights commissions and courts showed that the exhaustion of domestic remedies was not a requirement where a “generalized policy and practice” has been authorized (para. 63). This required that prima facie evidence was established. The CERD considered that its Concluding Observations on Israel’s seventeenth to nineteenth reports and the State parties’ submissions, satisfied the evidential threshold of prima facie evidence of a generalized policy and practice (para. 64).
Contextualization and Way Forward
CERD’s admissibility decision was issued two months after the Pre-Trial Chamber I of the International Criminal Court (‘ICC’) which confirms that its “territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” This is a significant ‘procedural win’ for Palestine, because it opens the door for investigations by the Prosecutor’s office into alleged war crimes perpetrated by Israeli soldiers or members of Hamas in the OPT. The CERD in its two decisions emphasizes the terminology of the “State of Palestine” and determines that neither bilateral treaty relations nor consent is required for the activation of inter-State communications under Article 11 ICERD, because of the ius cogens character of the prohibition of racial discrimination. This decision was heavily criticized by the dissenting CERD members (annex), primarily for contradicting the principle of State consent.
While this principle -which derives directly from the principle of sovereign equality entailed in Article 2 (1) UN-Charter– is certainly one of the most fundamental principles in international law a small number of core rules functions outside the realm of general international law, as the CERD correctly points out. This is due to their basis on superior common values and consequently their non-synallagmatic nature. The fact that some core rules supersede general international law principles is reflected for instance by Article 53 Vienna Convention on the Law of Treaties, which acknowledges that if a treaty violates ius cogens, the treaty will be considered null and void, rendering another fundamental principle, namely pacta sunt servanda, inapplicable. In order to prevent the blurring of when general international law principles are applicable and when they are not, the list of ius cogens norms is limited to the “prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination” (see ARSIWA Commentary to Article 26, para 5). As the Committee again points out accurately, compliance to ius cogens is not only owed to all States parties but to all people, erga omnes. It must follow that if compliance is owed to all States parties and all people, so are the enforcement mechanisms in order to grant this supreme category of norms de facto relevance. Otherwise, the concept of erga omnes obligations is a theoretical one without any practical impact. It must be noted that the European Court of Human Rights in Al-Dulimi and Montana Management INC v Switzerland case; the European Commission of Human Rights inter alia in Cyprus v Turkey; as well as the Inter-American Court of Human Rights in Ivcher Bronstein v Peru also held that the non-synallagmatic nature of substantive obligations results in any State party being able to trigger the collective enforcement machinery established by that treaty, independently from the existence of correlative obligations between the concerned parties.
Two other important holdings, the CERD concluded in its admissibility decision, should not go unrecognized: Firstly, an exception to the procedural rule of exhausting domestic remedies where a “generalized policy and practice” of racial discrimination has been authorized. While this confirms the jurisprudence of other regional human rights commissions and courts (e.g. Inter-American Commission on Human Rights in the Case of Nicaragua v. Costa Rica or the European Court of Human Rights in Georgia v Russia (I)), it is nevertheless a considerable easement of a procedural hurdle that would be difficult to overcome otherwise. Secondly, the Committee’s reference to its own Concluding Observations as satisfying the evidentiary threshold of prima facie evidence and thus releasing Palestine from submitting further evidence. While this may surprise at first glance, it seems logical that the CERD relies on its own documents (issued only one year earlier) and acknowledges the practical relevance of the different enforcement mechanisms under the ICERD.
These three pronouncements -singularly but even more so cumulatively- must be considered a second ‘procedural win’ for Palestine in 2021 after the ICC’s Pre-Trial Chamber decision. They mark one of the rare occasions in which Israel was unable to prevent a decision on the merits regarding its Apartheid regime in the OPT for procedural maneuvers, albeit acknowledging that this procedure is merely of a conciliatory, non-binding as opposed to an adversary, binding nature. The next procedural step is the appointment of an ad hoc Conciliation Commission comprising five persons by the Chairperson of the CERD to find an amicable solution under Article 12 (1) ICERD. Yet, as Jan Eiken points out, given Israel’s Press Release to the CERD’s decision describing it a “shameless and biased decision, [which indicates] that Israel cannot expect to receive fair and non-discriminatory treatment from this body, and will conduct its relations with it accordingly”, the conciliatory nature of that next procedural step does not spark much hope. Nevertheless, this will be the first time ever an ad hoc Conciliation Commission will be appointed in the course of an inter-State communications before a UN Human Rights Treaty Body. The mandate of the ad hoc Conciliation Commission is to prepare and submit a report to the CERD’s Chairperson embodying its findings on all questions of fact and containing recommendations for the amicable solution of the dispute under Article 13 (1) ICERD. While the likelihood of finding an amicable solution between Palestine and Israel on its Apartheid allegations is close to zero, what remains is that the ad hoc Conciliation Commission will be issuing a report on this matter, which will be distributed amongst all States parties to the ICERD. This may serve as another piece of the puzzle in Palestine’s judicial quest to seek justice for Israel’s Apartheid regime in the OPT.