09 Nov Israel, Palestine and CERD’s Early Warning and Urgent Action Procedure
[Dr David Keane is Assistant Professor in Law at Dublin City University, Ireland. His research is in international human rights law with a particular focus on the International Convention on the Elimination of All Forms of Racial Discrimination.]
On 27 October 2023, the UN Committee on the Elimination of Racial Discrimination (CERD/the Committee) acted under its Early Warning and Urgent Action (EWUA) procedure and issued Statement 5 (2023) on Israel and the State of Palestine, expressing alarm at ‘the scale of violence and the humanitarian catastrophe that is unfolding in the occupied Gaza Strip and by the well-founded fears that the region is being engulfed in a broader conflict’. The text of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) does not expressly provide for the EWUA procedure, although its legal basis is found under Article 9(1)(b) whereby the Committee ‘may request further information from the States Parties’ in the context of State reports. It is aimed at preventing existing situations escalating into conflicts (early warning) or responding to problems requiring immediate attention to prevent or limit the scale of serious violations of the Convention (urgent action). CERD usually does not articulate which limb it is acting under, and often aspects of both early warning and urgent action are present. This post will briefly reflect on the development of the EWUA mechanism and important elements in CERD’s Statement.
The EWUA Mechanism
The EWUA mechanism originates in 1993, in what was a watershed year for CERD. As the Committee wrote to then Secretary-General Boutros-Ghali, on the one hand, the Committee ‘contemplate[d] the success of policies initiated in the 1960s. The struggle against colonial rule and racist regimes has been successful’. However, on the other, ‘the period 1992-1993 has been besmirched by new evidence of horrific human rights abuses stimulated by racial and ethnic hatred’. In response to these new ethnic conflicts erupting in States Parties such as Burundi, Rwanda and the former Yugoslavia, CERD adopted a new mechanism, the EWUA procedure.
It was prompted by Boutros-Ghali’s recommendations for preventive diplomacy in An Agenda for Peace, as well as a meeting of the chairs of UN treaty bodies that these should prevent human rights violations from occurring and monitor more closely emergency situations. A number of guidelines and indicators were adopted by CERD in 1993, and updated in 2007. These include an assessment whether to act under the procedure ‘in light of the gravity and scale of the situation, including the escalation of violence or irreparable harm’.
Notably, the EWUA procedure even allows for field missions of CERD members. Its first use saw CERD deploy a mission of three of its members, Messrs. Ahmadu, Rechetov and Wolfrum, to the then Federal Republic of Yugoslavia (FRY) in November-December 1993. A second field mission by CERD member Mr. Yutzis to Croatia followed in 1994. These remain the only field missions ever conducted by CERD, although the 2007 review retained the potential ‘to offer to send to the State party concerned one or more of the members of the Committee’. Perhaps CERD could revive this potential in the future.
In the 2000s, the mechanism was more often deployed in relation to indigenous peoples. Thornberry’s ICERD Commentary recalls how ‘critical voices, including among Committee membership, have suggested that, in developing a pre-eminent concern with indigenous peoples, the procedure has deviated from its original purpose’. However, more recent years have seen a wide range of situations addressed by the EWUA mechanism, such as brutalities perpetrated against the Hmong minority in Laos (2010), migrant crises in the Mediterranean and in the Andaman seas (2015), or the killing of George Floyd in the United States (2020).
Other UN Treaty Bodies
CERD is not unique in having an EWUA procedure. However, the only other UN treaty body with both an early warning and urgent action procedure, the Committee on the Rights of Persons with Disabilities, has never used either. The Committee on Enforced Disappearances has an urgent action procedure only, where it can request a State Party to take all necessary measures to locate and protect a disappeared person which it regularly uses. The rest of the UN treaty bodies either do not have the mechanism or have used a procedure similar to it once or twice.
Perhaps it is time other UN treaty bodies considered the adoption of such a procedure. Some of these are clearly compelled to act outside of the reporting cycle, such as the statement of the UN Committee on the Rights of the Child on 13 October on grave violations of children’s rights occurring in Israel and Palestine. An EWUA procedure would provide guidelines for triggering such a mechanism, as well as documenting Committee action and recommendations via decisions, statements and letters.
CERD’s Statement on Israel and the State of Palestine
CERD’s Statement is addressed to both Israel and Palestine as States Parties to ICERD.
The Statement expresses its deep shock at ‘cruel attacks carried out by Hamas and other armed groups on the 7 October, as well as the launching of rockets towards Israel, resulting in the death of at least 1,400 Israelis including women and children, and the injuries of more than 5,400 as well as the taking of hostages’. In its recommendations, it ‘urges the release of hostages taken by Hamas and other armed groups’.
It also expresses its deep shock at ‘ongoing Israeli indiscriminate and brutal military attacks in Gaza Strip, particularly the airstrikes, leading to the killing of more than 7,000 Palestinians, including at least 2,900 children, and the injuries of more than 18,400 since 7 October 2023, as well as to over 1,600 people, including 900 children, reportedly being trapped under rubble in Gaza’. CERD states clearly that Israel’s decision to tighten the ‘ongoing and long-standing blockade’ of Gaza and to withhold essential supplies ‘amounts to a form of collective punishment against the 2.3 million Palestinians’. Ultimately, seven of the nine recommendations are addressed to Israel.
The Committee refers to the statement made by the Israeli Minister of Defense, Yoav Gallant, in which he referred to Palestinians as “human animals”, which according to the Committee is ‘language which could incite genocidal actions’. CERD has extensive expertise in compiling indicators relevant to the prevention of genocide under the EWUA procedure, and in 2015 it issued a Declaration on the Prevention of Genocide which recalled this work in its Preamble. The Committee thus calls upon Israel to firmly condemn any form of hate speech and distance itself from racist hate speech expressed by politicians and public figures.
Importantly, CERD addresses also the obligations of ‘other States Parties’ in the Statement. The nine operative recommendations recall in the chapeau ‘the international obligations that Israel and other State parties have undertaken under the ICERD’. In particular, CERD calls on Israel and other States Parties to develop and implement ‘an immediate and complete ceasefire’. It also calls on Israel and other States Parties ‘to provide all necessary financial and humanitarian aid to Palestinians in the occupied Gaza Strip and the creation of humanitarian corridors that allow people to leave Gaza and return’.
There are relatively few situations where CERD will consider other States Parties to have obligations under the Convention in relation to situations that are outside their jurisdictions. This happened in the 1970s-90s in relation to apartheid South Africa, where all States Parties to ICERD were required to report on their relations with Southern African regimes. It occurred in 2022 in relation to Xinjiang, China, where the Committee engaged the EWUA procedure and reminded ‘all States of their responsibility to cooperate to bring an end through lawful means any serious breach of human rights obligations, in particular serious violations of the peremptory norm of the prohibition of racial discrimination’. The most serious violations of the Convention can engage the obligations of other or all States Parties. The legal consequences that arise for all States also forms part of the question asked of the International Court of Justice in the request for an Advisory Opinion on Legal Questions arising from the Policies and Practices of Israel in the Occupied Palestinian Territories, including East Jerusalem.
CERD’s Statement highlights the potential role of the UN treaty bodies in responding to situations of grave rights violations outside the reporting cycle. Its recommendations underline that all States Parties that can implement an immediate and complete ceasefire have international obligations to do so. Its final recommendation looks forward, urging Israel ‘to rescind its blockade policy and urgently allow and facilitate the rebuilding of homes and civilian infrastructures; ensure access to necessary urgent humanitarian assistance; and also ensure the right to freedom of movement, housing, education, health care, water and sanitation, in compliance with the Convention’.