ICERD and Palestine’s Inter-State Complaint

On 23 April, The Guardian reported that Palestinian diplomats had filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). According to the Ministry of Foreign Affairs and Expatriates of the State of Palestine:

Palestine is a State whose territory remains under a belligerent colonial occupation. For its part, Israel, the occupying Power, has maintained its colonial occupation over the past fifty years by imposing racist and discriminatory policies against Palestinian citizens.  Confronting this pervasive reality of racism and discrimination is a priority. This cannot wait. It should not. No person or people should be asked to tolerate racism or the violence and injustice it breeds.

The Guardian writes that “the submission is believed to be the first interstate complaint filed under the treaty”. This is true in relation to ICERD, and also the entirety of the UN international human rights treaties; as the OHCHR highlights in its portal on inter-state complaints: “Note: these procedures have never been used.”

The inter-state procedure is not found in every treaty – there is no formal procedure for filing inter-state complaints under CEDAW and its Optional Protocol. The procedure is found in ICCPR, ICESCR, CAT, CMW, CED and Optional Protocols, but it is generally optional and both States have to have recognised the competence of the Committee to receive such communications.In an authoritative study on the inter-state complaints procedure in a 1988 article in Human Rights Quarterly, Scott Leckie highlights how its optional nature on a reciprocal basis “has and will continue to limit its utilization”. This is in addition to the fact that it is often seen as “a hostile and quite drastic response by a state desiring to address human rights questions in another state.” However he believes its positive effects are often overlooked.

Of the international human rights treaties, only ICERD has a compulsory inter-state complaints mechanism, found in Articles 11-13, which applies to all States Parties upon ratification. This does not render it unique in human rights law, with compulsory inter-state provisions also found in the ILO, the ECHR and the African Charter for example, with established inter-state caselaw emanating from the regional systems. But its compulsory character under ICERD is unique among the UN international human rights treaties.

Article 11(1) ICERD reads:

If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

The original draft of Article 11 referred to inter-state ‘complaints’, but in the Third Committee, Mexico proposed substituting the word ‘complaints’ with ‘communications’. This was adopted for its more inclusive and less adversarial tone.

Article 11(2) continues:

If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State.

Provided the exhaustion of domestic remedies criterion is satisfied, Article 12(1)(a) governs the next stage:

The Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention.

Article 12(1)(b) provides a mechanism of secret ballot from among CERD members in the event of a failure to agree on some or all of the composition of the Commission. Article 13(1) provides:

When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute.

These ‘findings and recommendations’ are communicated to the States Parties, who must respond within three months as to whether they are accepted or not. The final act under Article 13(3) is that the Chairman of the Committee “shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention.”

The procedure overall clearly sees an escalation from Article 11 to Articles 12 and 13, with the latter two provisions employing the language of ‘dispute’ instead of ‘communication’. It is foreseen by the treaty that the current ‘communication’ from Palestine can be resolved within Article 11, including through bilateral negotiations. If not then it escalates to a ‘dispute’ and the consequent machinery of the Conciliation Commission.

Article 22 ICERD, invoked separately in recent years by Georgia and Ukraine against the Russian Federation, provides that a dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement [emphasis added]. While this could presumably apply to a dispute on the outcome of the inter-state complaints procedure, Israel has entered the following reservation: “The State of Israel does not consider itself bound by the provisions of article 22 of the said Convention.” Hence the matter appears confined to the mechanisms of Articles 11-13 for its resolution.

The communication itself is 350 pages long, with The Guardian reporting that it has seen only a summary. It includes the following:

Palestinians are severely limited in their freedom of movement compared to Israeli settlers and are subject to “confiscation and seizure” of their land, including home demolitions. It says Israel violates the right to equal treatment before tribunals by using separate legal systems for Palestinians and settlers, and points to higher maximum sentences for Palestinian defendants. It claims Israel has violated article 3 of the convention, which prohibits racial segregation and apartheid. “It is clear that Israel’s acts are part of a widespread and oppressive regime that is institutionalised and systematic; that accords separate and unequal treatment to Palestinians,” the summary says, calling for the dismantling of all existing Israeli settlements.

It is the reference to Article 3 that may gain the most attention. It 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.” At the drafting stage, the Third Committee had taken a decision not to include in the Convention any reference to specific forms of discrimination; however, it retained the particular reference to apartheid because “it differed from other forms [of racial discrimination] in that it was the official policy of a State Member of the United Nations.” In 1995, the Committee issued General Recommendation 19 stating that the reference to apartheid may have been directed exclusively at South Africa, “but the article as adopted prohibits all forms of racial segregation in all countries.” Hence the prohibition is read as applying to a range of situations in many countries, for example often used in relation to segregation and the Roma.

The Committee has already pronounced on the relevance of Article 3 in its Concluding Observations to Israel (2012):

The Committee is extremely concerned at the consequences of policies and practices which amount to de facto segregation, such as the implementation by the State party in the Occupied Palestinian Territory of two entirely separate legal systems and sets of institutions for Jewish communities grouped in illegal settlements on the one hand and Palestinian populations living in Palestinian towns and villages on the other hand. The Committee is particularly appalled at the hermetic character of the separation of two groups, who live on the same territory but do not enjoy either equal use of roads and infrastructure or equal access to basic services and water resources. Such separation is concretized by the implementation of a complex combination of movement restrictions consisting of the Wall, roadblocks, the obligation to use separate roads and a permit regime that only impacts the Palestinian population (art. 3 of the Convention).

The Committee draws the State party’s attention to its general recommendation 19 (1995) concerning the prevention, prohibition and eradication of all policies and practices of racial segregation and apartheid, and urges the State party to take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory and which violate the provisions of article 3 of the Convention.

Patrick Thornberry’s The ICERD: A Commentary (OUP, 2016) follows the exchange, noting how Israel’s opening statement challenged “any spurious claim regarding apartheid or racial segregation in Israel”. He comments however that “The Committee has made an unusually high number of references to Article 3 in concluding observations on the territories occupied by Israel, employing the language of grave concern or deep concern and, more unusually, as a violation, though without individuating the elements of the article.” The observation is that CERD has not ‘individuated’ the term ‘apartheid’ in relation to Israel, preferring instead to bracket practices as an overall violation of Article 3. Israel’s most recent State Report, submitted in 2017, has just one reference to the issue which reads: “Apartheid has always been regarded as abhorrent by the GOI [Government of Israel] and society, and continues to be so regarded. Apartheid has never been practiced in Israel. There exists in Israel no restrictions of any kind as to place of residence nor is there any segregation of any kind.” It has yet to be examined by CERD.

Leckie believes that the inter-state complaints procedure “could be considered more seriously by more states as a useful and constructive policy tool with the potential effect of enhancing human rights throughout the world.” Although unlikely to resolve the structural weaknesses in the universal inter-state communications procedure, Palestine’s inter-state communication is certainly historic. As its Ministry of Foreign Affairs concludes, “We are the litmus test”.