South Africa v Israel and CERD’s Early Warning and Urgent Action Procedure: Part II

[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.]

Part I can be found here.

Editor’s Note: This post was updated on 17 January 2023 to acknowlege that CERD’s Decision of 21 December 2023 was cited in the Provisional Measures hearings before the ICJ.

On 28 December 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ) alleging breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). South Africa’s application refers to the work of the Committee on the Elimination of Racial Discrimination (CERD/the Committee), which monitors the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). CERD issued a Statement on 27 October 2023 and a Decision on 21 December 2023 under its Early Warning and Urgent Action (EWUA) procedure in relation to the situation in Israel, Palestine and Gaza, which are cited in South Africa’s application (see paras 3 and 108) and in its subsequent presentation to the Court in provisional measures hearings on 11 January 2024 (see p. 18 para 6). As readers of this blog will recall, I posted a piece following the first CERD Statement on 27 October emphasising its significance, including the call to ‘other States Parties’ to act. In this follow-up piece I will look at the second CERD Decision of 21 December, reflecting on the Committee’s role in relation to genocide. I will also consider briefly the issue of apartheid – which South Africa stresses forms the background to its application to the ICJ – in the context of the Palestine v Israel case currently before CERD.

CERD’s Decision of 21 December

The context for CERD’s Decision of 21 December was the Committee’s 111^th session, held in Geneva from 20 November – 8 December 2023. That session opened with an address to the Committee by Yury Boychenko, Chief of the Anti-Racial Discrimination Section of the Office of the High Commissioner for Human Rights (OHCHR). In relation to the situation in the Middle East, Mr. Boychenko ‘expressed his personal view that the Convention on the Prevention and Punishment of the Crime of Genocide was being violated.’ He pointed out how the OHCHR felt powerless, and ‘urgent, strong action was needed’. On 8 December, CERD held a meeting with States Parties, involving some 36 State Party representatives. There, speakers expressed alarm at the scale of violence occurring in the Gaza Strip and while the Committee’s first statement was ‘a good first step’, ‘further action was needed’. One Committee member then signalled that it was ‘developing an additional decision since the resumption of the conflict, calling on all parties to establish a permanent ceasefire.’

CERD’s subsequent Decision of 21 December, as with its earlier Statement, first recognises the Committee’s deep concern in relation to the ‘launching of rockets towards Israel, taking of hostages, and the brutal attacks carried out by Hamas and other armed groups on 7 October 2023, resulting in the death of at least 1,200 Israelis and foreign nationals, including at least 33 children, and the injuries of more than 5,400.’ It then expresses deep shock at the ‘intensified, brutal and indiscriminate Israeli bombardments from the air, land and sea all across the occupied Gaza Strip…resulting in the killing of more than 19,600 Palestinians, including at least 7,700 children and 5,100 women, and the injuries of more than 52,500 since 7 October 2023, as well as that several thousand reportedly being trapped under rubble’. It expresses high concern at ‘reports that half of the population in occupied Gaza Strip is starving in a situation of extreme or severe hunger’, among other aspects.

But the progression from the Statement on 27 October to the Decision on 21 December is most notable in relation to genocide. As highlighted in my earlier post, the first Statement expressed concern at ‘language which could incite genocidal actions’, citing a statement by the Israeli Minister of Defense, Yoav Gallant, in which he referred to Palestinians as ‘human animals’. This is the only reference to “genocide” or “genocidal” in that Statement. The second Decision similarly expresses concern about ‘incitement to violence and genocidal actions’ by Israeli senior government officials. But it then references the Israeli operation itself, 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’. It calls upon ‘all State parties to fully respect their international obligations, in particular those arising from [ICERD] and the [Genocide Convention] and to cooperate to bring to an end the violations that are taking place and to prevent atrocity crimes, particularly genocide’.

Thus, CERD’s Decision of 21 December, addressed to ‘all States Parties’, refers expressly to both ICERD and the Genocide Convention. By contrast, its 27 October Statement refers to the obligations of ‘other States Parties’ in relation to ICERD only. South Africa’s application to the ICJ cites CERD’s first Statement, emphasising in italics the Committee’s concern at language of ‘dehumanization’ directed at Palestinians since 7 October which could ‘incite genocidal actions’. It then cites the second Decision, noting the Committee’s ‘detailed reference to the ongoing situation in Gaza’, and emphasising its call ‘on “all State parties” to the Genocide Convention to “fully respect” their “obligation to prevent… genocide”.’ Hence, CERD’s Decision of 21 December directly supported South Africa’s triggering of Article IX of the Genocide Convention.

CERD and Genocide

It is worth recalling that the Genocide Convention does not provide for a treaty body. As Louise Arbour highlights, such a body was contemplated in an early draft of the Genocide Convention and suggestions for creating one continue to be advocated. She writes: ‘Properly designed, a monitoring mechanism could provide an authoritative early warning of situations at risk of degenerating into genocide.’ To some extent, and in the continuing absence of such a body, CERD has filled this gap. In a chapter on “ICERD and Genocide”, William A. Schabas highlights how CERD examined the periodic report of Rwanda in 1994 only a few weeks before the outbreak of the worst episode of genocide since the adoption of the Genocide Convention. He writes:

‘On 17 March 1994, CERD adopted Concluding Observations that addressed problems of impunity with respect to ethnic violence in the country, requesting that Rwanda provide further information by the end of June 1994. Alas, there was no such follow- up. By the end of June 1994, hundreds of thousands of Tutsi had perished. In mid-August 1994, CERD adopted a Decision ‘[e]xpressing its deep concern and grave alarm over the tragic loss of life of genocidal dimensions in Rwanda.’

This experience convinced CERD of the importance of its EWUA procedure, adopted one year previously in 1993, in relation to genocide. Thus, its 1994 Decision on Rwanda profoundly regretted that ‘the international community was so unforgivably late in its effort to prevent the human tragedy and genocide occurring in Rwanda’. Its 1995 Decision on Burundi expressed alarm at ‘reports of the breakdown of law and order in large parts of the territory of Burundi, a State party to [ICERD], which is leading to a further deterioration in a critical situation that has the potential for genocide’. A 1998 Decision on the Democratic Republic of the Congo highlighted ethnic massacres that ‘could constitute acts of genocide’. In 2005, it adopted a Declaration on the Prevention of Genocide which recalled a decade of Committee actions under the EWUA procedure on ‘country situations where systematic violations of human rights and persistent patterns of racial discrimination could escalate into violent conflict and genocide’. A 2007 update of its EWUA guidelines noted how the Committee had used the EWUA procedure to address ‘the presence of serious, massive, or persistent patterns of racial discrimination, in some cases with genocidal dimensions.’ As Schabas concludes: ‘The complementary nature of the Genocide Convention and ICERD should not be understated … the two concepts and the two Conventions are joined at the hip.’

CERD, Apartheid and Palestine v Israel

While CERD has been active under its EWUA procedure, it notably has yet to reach a decision in Palestine v Israel, likely to be the first inter-State case to be decided by a UN treaty body. Among other aspects, Palestine v Israel urges CERD to reach a determination that the situation in the Occupied Palestinian Territories constitutes apartheid in violation of Article 3 ICERD, which 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’. South Africa’s application to the ICJ emphasises apartheid as crucial ‘background’ to its claim, stating: ‘The institutionalised regime of discriminatory laws, policies and practices applied by Israel subjects Palestinians to what constitutes an apartheid regime’. This is a remarkable statement coming from South Africa, which perhaps has been somewhat overshadowed by the overarching genocide claim.

While CERD has “evolved” its expertise in relation to genocide, its mandate in relation to apartheid could not be more clear under Article 3 – indeed, ICERD is the first international treaty to condemn apartheid. I have argued elsewhere that a finding of apartheid in Palestine v Israel could potentially trigger ICERD obligations to condemn apartheid – i.e. not to recognise the illegal situation or render aid or assistance in its maintenance – in relation to all States Parties to the treaty (of which there are currently 182).

Palestine submitted its communication against Israel to CERD on 23 April 2018, and so it has been nearly six years in total. The case was briefly raised at the recent November-December 2023 CERD session. At the opening of the session, CERD member Gay McDougall commented that the Committee ‘had formed a commission for consultation with the two States parties in question to seek a resolution to the issue, but it had achieved no results as one of the States parties had refused to cooperate.’ At the 8 December meeting of States Parties, a CERD member commented that ‘the Committee had acted upon a communication from the State of Palestine regarding the actions of Israel in 2021… establishing an ad-hoc conciliation commission.’

It may be highlighted in relation to the first comment that the mechanism does not rely on cooperation from both Parties. It provides a means of compulsory appointment of an ad hoc Conciliation Commission without the cooperation of one Party, and envisions a report with findings of fact and recommendations if the process of conciliation fails. It may be noted that the five members of the Palestine v Israel Conciliation Commission recused themselves from CERD’s Decision of 21 December, which underlines that the process is ongoing. CERD argued at the meeting of States Parties at its recent session that it is ‘doing what it could to speak out as loudly and forcefully as it was able to on the topic.’ At some point, if we are not there already, that will not be true if a decision in Palestine v Israel is not arrived at in a reasonable timeframe.

Conclusion

CERD’s call to all States Parties under ICERD and the Genocide Convention was clearly listened to by South Africa in bringing its application. Thus, it played a small but important role in the initiation of these proceedings. It is just one UN body cited by South Africa, which lists also the many warnings of the UN Special Rapporteurs and Working Groups (see p. 67-70). But it is the only UN human rights treaty body cited. As I argued in my previous post, other UN treaty bodies may wish to consider whether they should evolve a mechanism similar to the EWUA procedure. For example, the question of starvation in Gaza would appear to warrant urgent intervention from the UN Committee on Economic, Social and Cultural Rights. CERD’s EWUA procedure provides it with a vital ability to issue preventive warnings and respond to urgent situations.