David Kattenburg
Mondoweiss / February 10, 2022
The conclusions the UN Committee on Elimination of Racial Discrimination reaches may have huge consequences for Israel as it tries to weather the apartheid storm, and for Palestinians seeking justice.
The Israeli apartheid idea is like a mountain stream, steadily gaining speed, becoming a river, growing broader, deeper, harder to block or push back.
Palestinians and their friends — many of them Israeli Jews and South Africans who know apartheid when they see it — have been using the A-word for years.
In 2013, Dutch-South African jurist John Dugard and Irish scholar John Reynolds published a pair of critical papers about Israeli apartheid, largely unnoticed beyond academic circles.
Almost as obscure, in 2017, under the auspices of the UN Economic and Social Commission for Western Asia (ESCWA), an exhaustively researched, territorially-focused analysis of Israel’s apartheid system assembled by Richard Falk and Virginia Tilley. Never before had a UN body issued such a report. Under pressure from the US and Israel, Falk-Tilley got scrubbed from ESCWA’s website. Not because of what it said, however, a UN spokesman explained. “This is about process.”
Then came B’Tselem and Human Rights Watch, deans of the Israeli and U.S. human rights communities, with damning reports of their own in January and April 2021. Amnesty International’s 280-page blast, earlier this month, thrust Israel, its allies and lobbyists into major flood control mode.
Still, they needn’t worry. No dam has burst. Mainstream news hardly reported on AI’s statement, and aren’t following up. The Newspaper of Record has ignored it entirely (as of this date). The damage AI’s report has caused is unclear. At the end of the day, waters rising, waters falling, the ‘international community’ will always be at the bulwarks, shoring Israel up.
It could well get harder, though.
Behind the scenes — as far behind as one can imagine — an obscure UN human rights committee is laboring away on an investigation of its own (“at its own leisurely pace without scrutiny,” one informed source says). When the UN Committee on the Elimination of Racial Discrimination (CERD) finally completes its work, in the next year or two, and if it concludes Israel does indeed practice apartheid, Israel will need lots of help bailing.
Now, by its very nature, CERD’s work is arcane and technical. All the more reason to dive into the weeds. People need to know how international human rights bodies and legal institutions work. Some say they’re all we’ve got. CERD is the first such body to assess Israeli apartheid claims in an adversarial setting (Palestine v. Israel) — behind closed doors, without media scrutiny. The conclusions it reaches may have huge consequences for Israel, as it tries to weather the apartheid storm, and for Palestinians seeking justice.
Here we go:
The CERD Committee was created under Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), one of eighteen human rights conventions and “optional protocols” within the UN system. ICERD was adopted by the General Assembly in December 1965, and entered into force in January 1969.
Under Article 1(1) of ICERD, “racial discrimination” is defined as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin … nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
ICERD Article 3, a single sentence, is the earliest reference to “apartheid” in a multilateral convention:
“State parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. [emphasis added].
Article 3 was a hit across the post-colonial world. White minority rule in South Africa, Rhodesia and Namibia at its peak, freshly minted African states lobbied for its inclusion.
Israel acceded to ICERD in 1979, Palestine in 2014.
From the start, Israel insisted that, because the West Bank lies outside its sovereign territory, ICERD would not apply there. (It takes the same position on the Fourth Geneva Convention, the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights — all the while extending Covenant protections to Jewish settlers).
CERD insists that the Convention does indeed apply in the occupied Palestinian territory. So do other UN rights bodies, in regard to their own committees.
Now, under ICERD, a State Party like Palestine can lodge a complaint against another in two ways: 1) at the International Court of Justice (ICJ) — unless that other State Party filed a “reservation” to ICJ jurisdiction when it acceded to ICERD (Israel did this), or 2) via an ‘Interstate Communication’ to the committee that administers ICERD — CERD.
This is what Palestine did, submitting an “Interstate Communication” to CERD, against Israel, on April 23, 2018.
For international legal wonks, the Palestine-Israel Interstate Communication was very interesting — just the third such filing in CERD’s fifty-year history, hot on the heels of the first two, in March 2018, pitting Qatar against Saudi Arabia and the UAE.
Citing the crucial ICERD Article 3, Palestine charged Israel with “racial segregation” and “apartheid.” Among Palestine’s specific complaints: that Israel has created “a widespread and oppressive regime that is institutionalized and systematic,” involving territorial fragmentation, restricted freedom of movement and access to land, separate and unequal schools and hospitals, home demolitions, arbitrary detention, political imprisonment and torture, all legislated through distinct sets of laws anchored in the canonical racial distinction between Jews and non-Jews.
In accordance with its rules, CERD offered Israel three months to “clarify the matter and the remedy.” To no one’s surprise, it didn’t. So, under Committee rules, on November 7, 2018, Palestine referred its complaints back to CERD. With the ball in its court, two things had to be established. Firstly, did Palestine’s complaint fall under CERD’s jurisdiction? In other words, was it CERD’s business to take up Palestine’s complaint?
No, Israel argued, it wasn’t. Although any state party can file an interstate communication under ICERD, Israel argued, Palestine is not a full-UN member state, and Israel has no treaty relations with it. Palestine’s communication should therefore be rejected, out of hand.
Palestine refuted Israel’s claims.
In December 2019, by a vote of 13 to 5, CERD sided with Palestine. Palestine was a fully-fledged State Party to the ICERD, the majority reasoned, and State Parties can file communications without the consent of the Responding party.
Crucially, in its jurisdiction ruling, CERD also cited ICERD Article 3 (though not specifically referring to ‘apartheid’).
The second question CERD had to answer, before moving on to the nuts and bolts of Palestine’s complaint, was whether the complaint was ‘admissible’. This turned on one question: had Palestine ‘exhausted all remedies’ within Israel’s legal system? No, it hadn’t, Israel argued, pointing to thousands of cases where Palestinians had indeed secured justice — or at least received a fair hearing — even at Israel’s top court!
Palestine’s lawyers must have laughed. West Bank Palestinians actually don’t have access to courts inside Israel ‘proper’, they riposted, and, in any case, racial discrimination in Israel is systematic, institutionalized and entrenched (indeed, viewed in full context, it amounts to apartheid), and therefore can’t be remedied in piecemeal fashion.
On April 30, 2021, this time unanimously, CERD agreed. Returning to Article 3 (though still not referring to ‘apartheid’), the Committee cited “prima facie” evidence of systematic racial discrimination on Israel’s part, embedded in “generalized policy and practice.” In doing so, it echoed its own “observations” in response to Israeli “periodic reports” to CERD in 2012 and 2019.
From CERD’s 2019 “Concluding Observations”:
“The Committee remains concerned at the maintenance of several laws which discriminate against Arab citizens of Israel and Palestinians in the [OPT] … as regards their civil status, legal protection, access to social and economic benefits, or right to land and property.” [Para. 15]
“… Israeli society continues to be segregated as it maintains Jewish and non-Jewish sectors, including two systems of education with unequal conditions, as well as separate municipalities … which raises issues under article 3 of the Convention.” [Para. 21]
“[The] Committee remains concerned [by] … the existence in the Occupied Palestinian Territory of two entirely separate legal systems and sets of institutions for Jewish communities in illegal settlements on the one hand and Palestinian populations living in Palestinian towns and villages on the other hand. The Committee is appalled at the hermetic character of the separation of the 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, lands and water resources. Such separation is materialized by the implementation of a complex combination of movement restrictions consisting of the Wall, the settlements, roadblocks, military checkpoints, the obligation to use separate roads and a permit regime that impacts the Palestinian population negatively (art. 3).” [Para. 22]
Having ruled in Palestine’s favor on both jurisdiction and admissibility, CERD’s next step, under ICERD, was to set up an ad hoc “Conciliation Commission” to establish the merits of Palestine’s complaint and help settle the matter amicably. Clearly, this would involve eliminating institutionalized racism that Palestine says amounts to apartheid.
A total non-starter. Israel denies it’s infringing on Palestinian human rights, and will do nothing to resolve Palestine’s complaints. CERD’s conciliation process is compulsory, however. Israel cannot block it. But it can refuse to participate. Palestine and Israel were invited to nominate candidates for the 5-member Commission. Israel declined. So, late last year, CERD appointed members of its own, in secret ballot, from among its eighteen members.
Those Commissioners are: Verene Shepherd (Jamaica), Gün Kut (Turkey), Faith Tlakula (South Africa), Chinsung Chung (South Korea) and Michal Balcerzak (Poland).
The Commission’s first task is to set rules of procedure, then embark on establishing the merits of Palestine’s complaints. It’s in uncharted territory. Never before has a UN body set out to assess alleged high crimes and attempt conciliation.
“Where it goes will be a first,” says David Keane, Assistant Professor in Law at Dublin City University, specializing in the study of the UN human rights system and its committees. “We’ve never had an interstate case go as far as this.” Keane doesn’t believe it will drag on for years. “[The] Committee will want to encourage states parties to use the mechanism,” says Keane.
Listen to David Keane here, getting down into the weeds with this writer:
At the end of the day, CERD is a treaty body, not a court. Its Conciliation Commission will simply draft findings of fact and recommendations. Judging from CERD’s “Concluding Observations” on Israel’s 2012 and 2019 reports, Israel could well get soaked. The Commission may or may not recommend an ‘individuated’ finding of apartheid, under ICERD Article 3. Its report will be submitted to the CERD Chairman, who will refer it to Israel and Palestine, for comments and a last stab at conciliation. They will have three months to do so.
If they don’t, three months elapsed, the Chairman will communicate the Commission’s findings and recommendations to all 182 State Parties to the Convention. It won’t be legally binding, but it won’t be something to reject or ignore, either, says David Keane. South Africa was not a State Party to ICERD, but all those who were were obliged to hold South Africa accountable.
And, if CERD does issue an ‘individuated’ finding of apartheid under Article 3, ICERD’s 182 State Parties would be under huge pressure to take that finding seriously. They could pass a resolution, in the General Assembly, asking the International Court of Justice (ICJ) to issue an Advisory Opinion on the Israeli Apartheid matter. There are more than enough votes in the Assembly to pass such a resolution by a wide margin.
Of course, ICJ rulings aren’t binding either. Israel ignored the ICJ’s 2004 Wall ruling and will do the same with CERD’s, and the ‘international community’ will defend and shield it, come hell or high water.
But the flood of opprobrium at the UN, within the international human rights community, across solidarity movements and global civil society may well wash Israeli apartheid away — from the River to the Sea.
David Kattenburg is a university science instructor and radio/web journalist based in Breda, the Netherlands
