Tag: palestine

Palestine v Israel six years on: time for a decision?

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Dr David Keane is a graduate of the Irish Centre for Human Rights’ LLM and PhD programmes, and is currently Assistant Professor of Law at Dublin City University.

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On 23 April 2018, Palestine submitted an inter-State communication against Israel under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Palestine’s communication, almost 350 pages long, alleges a range of Convention violations including the prohibition of apartheid in Article 3 ICERD. Six years on, we are still awaiting a decision from the Committee on the Elimination of Racial Discrimination (CERD/the Committee). In the meantime, the question of apartheid in the Occupied Palestinian Territories (OPT) has arisen also in submissions before the International Court of Justice (ICJ/the Court) in the request for an Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. It seems likely at this point that the ICJ will issue its Advisory Opinion before CERD decides Palestine v Israel. However, apartheid does not form an express part of the question asked of the ICJ, while it has been specifically litigated in Palestine v Israel. As a result, it is not certain the Court’s Advisory Opinion will be able to guide the Committee on this question. This post briefly explores the arguments currently before both bodies in terms of ICERD and apartheid. It concludes that CERD should urgently decide Palestine v Israel if it is not to undermine its inter-State communications mechanism and that of the wider UN treaty bodies.   

Article 3 ICERD

Outside of its universal status as a peremptory norm, three treaties address apartheid – ICERD, the 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) and the 1998 Rome Statute of the International Criminal Court. Adopted in 1965, ICERD is the first international instrument to condemn apartheid. It remains the only treaty that addresses State obligations in relation to apartheid, with the Apartheid Convention and the Rome Statute relating to individual criminal responsibility. It is the most ratified of the three treaties, and with 182 States Parties, the only one with a claim to universality – both Israel and Palestine, as well as all permanent members of the UN Security Council, have ratified ICERD. As Libya posited to the ICJ: ‘The prohibition of racial discrimination and apartheid is reflected most in CERD.’  

However, ICERD does not provide a definition of apartheid. As a result, it is offered as the principal treaty source of State obligations, while the Apartheid Convention and the Rome Statute provide a potential definition of apartheid and evidentiary standard against which a claim of apartheid may be tested. Indeed, a joint submission by Palestinian NGOs to CERD in 2019 alleging apartheid in the context of Israel’s State report used the Rome Statute definition as a guide. Palestine’s communication in Palestine v Israel takes a similar approach, providing ‘an examination of Israel’s policies and practices against the definition of apartheid in these conventions [Apartheid Convention and Rome Statute] to see whether they meet the criteria laid down for the crime of apartheid’.

In terms of State obligations, Article 3 ICERD 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.’ I have argued elsewhere that Article 3 contains two obligations – a collective obligation to ‘particularly condemn’ racial segregation and apartheid that falls on all States Parties, and an individual obligation to ‘prevent, prohibit and eradicate’ that falls on States Parties with practices of this nature in territories under their jurisdiction. This is how CERD has implemented Article 3. A communication from its first session in 1970 called for information in State reports on ‘Condemnation of racial segregation and apartheid, in accordance with article 3’; it did not address the second limb of Article 3, since practices of apartheid were not under the jurisdiction of any State Party (South Africa would not ratify ICERD until 1998). From 1970-94, CERD required all States Parties to condemn apartheid, which resulted in questioning in the State reporting mechanism on their diplomatic, economic and other relations with what it termed the ‘racist regimes of Southern Africa’, which included South Africa, Namibia and Southern Rhodesia. ‘Other relations’ included any military cooperation, as well as sporting and cultural relations. This body of work must be one of the earliest examples of an erga omnes obligation being applied, as all States Parties to ICERD were systematically examined in relation to violations of the Convention being committed by other States which were not even a party to the treaty.

Apartheid before the ICJ

In its 30 December 2022 request for an Advisory Opinion, the UN General Assembly did not expressly ask the ICJ to consider the issue of apartheid in the OPT. Instead, it reads:

‘What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 … and from its adoption of related discriminatory legislation and measures?’

Since apartheid is not a direct part of the request, it is not certain the ICJ will address the issue. Nevertheless, as Palestine submitted in February 2024 hearings: ‘Undoubtedly, apartheid falls within the scope of discriminatory “measures” referred to in the UNGA resolution requesting this advisory opinion’. Palestine’s earlier July 2023 Written Statement to the Court provided a separate section on how Israel’s racial discrimination against the Palestinian people amounts to apartheid. Its October 2023 Written Comments on the Written Statements of other States and organisations further highlighted how 21 of these ‘expressly conclude that Israel is committing apartheid in the OPT’, including two States – Namibia and South Africa – ‘each of which have direct experience and profound understanding of what constitutes an apartheid regime’. In the hearings, Palestine called on the Court ‘to declare that Israel’s discriminatory practices against the Palestinian people are tantamount to apartheid’. It was supported by South Africa, among others: ‘South Africa beseeches this Court to examine the institutionalized régime of discriminatory laws, policies and practices applied by Israel alongside the definition of the crime of apartheid, and to find that Israel subjects Palestinians to what constitutes an apartheid régime’.

Recent blog pieces by Victor Kattan and Kai Ambos have considered the “apartheid claim” before the ICJ notably in relation to the Apartheid Convention and the Rome Statute. The significance of ICERD has also been raised, although there has been a lack of clarity as to the exact position of CERD which has come through in some ICJ submissions. Thus, a number of evidentiary sources have been put forward to the ICJ that apartheid exists in the OPT, including the report of the UN Special Rapporteur Michael Lynk, reports by Yesh Din, BT’Selem, Human Rights Watch and Amnesty International, as well as statements of senior Israeli figures. Some State submissions have cited also CERD in that regard, such as that of The Gambia:

‘Once again, the Court has before it extensive, credible and independent fact-finding demonstrating conclusively that Israel has imposed an apartheid reality in the Palestinian territories. This is clear in the reporting of the United Nations Special Rapporteur, who concluded that “Israel has imposed upon Palestine an apartheid reality in a post-apartheid world”. This is also reflected in the findings of the Committee on the Elimination of Racial Discrimination.’

Similarly, South Africa considered ‘the reality of apartheid becoming so obviously explicit as to now being recognized, not only by South African and Palestinian victims of apartheid themselves, but by the broader international community, including both Israeli and international human rights organizations’, with the accompanying footnote citing CERD concluding observations to Israel, as well reports by Michael Lynk, Amnesty International and others.

While the UN Special Rapporteur and NGO reports cited have all unambiguously concluded that the situation in the OPT is apartheid, this is not true of CERD. To date, CERD has not found a situation of apartheid exists in the OPT in the State reporting procedure, despite being specifically requested to do so since 2012 by NGOs and civil society in the context of Israel’s report. It has unquestionably found Israel to be in violation of Article 3 ICERD (see here para 24), but since Article 3 refers to ‘racial segregation and apartheid’, and not only apartheid, a violation of this provision does not necessarily entail a situation of apartheid exists. Indeed, CERD members have in the past expressly clarified to Israel that they were not reaching a finding of apartheid (see here paras 42 and 47).

Palestine v Israel

This may in part have motivated Palestine to bring its inter-State communication against Israel in April 2018 – to require CERD to decide the issue, which it has sidestepped in the reporting procedure to date by citing violations of Article 3 without individuating its elements. Palestine’s inter-State communication to CERD is clear, requesting ‘findings to the effect that…Israel’s policies and practices in the occupied territory of the State of Palestine constitute apartheid within the meaning of Article 3 CERD’. Hence, while the Court may address the issue of apartheid, the Committee must do so.

The potential legal consequences of Palestine v Israel relate to Israel and to all States Parties to ICERD. In relation to Israel, Palestine submits that it ‘must dismantle the existing Israeli settlements as a necessary pre-condition for the termination of the system of racial discrimination and apartheid in the occupied territory of the State of Palestine’. The call that Israel must dismantle the existing Israeli settlements is hardly controversial in international law. As early as 1980, UN Security Council Resolution 465 called on Israel ‘to dismantle the existing settlements and, in particular, to cease, on an urgent basis, the establishment, construction and planning of settlements’ in the OPT. But the link between the settlements and racial segregation and apartheid is what CERD is being asked to determine. This was signaled in the 2013 report of the Independent International Fact-finding Mission of the UN Human Rights Council which documented the many rights violations that emanate from the settlements in the OPT, describing also ‘a system of total segregation’ (at para 103).

Palestine further submits to CERD that Third States ‘must not recognize as lawful this illegal situation, nor render aid or assistance in any form in maintaining that situation.’ Obligations on all States Parties can flow from ICERD, as evidenced in CERD practice on apartheid in southern Africa from 1970-94 highlighted above, but also in the more recent use of its early warning and urgent action mechanism in relation to China and Gaza, elements of which were addressed to ‘all States’. However, the Committee has never articulated in detail the ‘all States’ obligations of Article 3.

Although ICERD is silent on time limits to conclude the inter-State communications procedure, relevant Rules of Procedure adopted in April 2022 require completion within a ‘reasonable timeframe’ (discussed here). Now that a two year mark has been passed for the merits phase, and a six year mark for the communication overall, surely the ‘reasonable timeframe’ standard has been exceeded.

Conclusion

The February 2024 hearings before the ICJ illustrate how the issue of apartheid in the OPT has come to the fore. In the hearings on the Wall in January 2004, both South Africa and Namibia contributed written submissions but neither described the situation in the OPT as apartheid (see here and here). Today, both States, ‘victims of apartheid’, have called on the ICJ to recognise the situation in the OPT as apartheid. It is not certain the Court will address the issue, however it would undoubtedly be difficult for it to ignore. ICERD has been cited as one of just three international instruments that expressly address apartheid. For six years, CERD has had before it an inter-State communication of the greatest importance – does apartheid exist in the OPT? And if so, what would be the legal consequences for Israel and for all States Parties to ICERD? It seems likely now that the ICJ Advisory Opinion will inform any outcome in Palestine v Israel, rather than the other way around. This appears a missed opportunity given CERD is the “guardian of the Convention” and best placed to offer a view on obligations it implemented in relation to apartheid for some twenty-five years. In addition, excessive delay may undermine the inter-State communications procedure before CERD and other UN treaty bodies, already little used by States Parties. Palestine v Israel should be informing the Court in its Advisory Opinion determinations. Instead, we continue to wait.

Ireland could and should join South Africa’s genocide case against Israel

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Ireland must make decisions for itself – as a state party to the Genocide Convention, with a responsibility to act to protect humanity

Dr Maeve O’Rourke is a lecturer and Director of the Human Rights Law clinic, at the Irish Centre for Human Rights, School of Law, University of Galway

This article first appeared in the Irish Times, January 10 2024

The International Court of Justice (ICJ) will hear South Africa’s case against Israel under the 1948 Genocide Convention this week.

The emergency hearing, which will be live-streamed, focuses on South Africa’s request for “provisional measures”, including a ceasefire order and an instruction that Israel must halt its deprivation of food, water, fuel, shelter, clothing, hygiene, sanitation, medical supplies and assistance to Palestinian children and adults in Gaza.

South Africa alleges that Israel is committing genocide and failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others. To order provisional measures, the ICJ needs to be convinced that at least some of the acts alleged “are capable of falling within the provisions of the convention”.

Any one of the 153 states parties to the Genocide Convention could have brought this case; countries owe their obligations to prevent and punish genocide to every other convention state party.

It is a case that Ireland could and should join. We could formally intervene after this week’s interim hearing to assert our interpretation of the convention’s provisions – as we did in 2022 in Ukraine’s case against Russia. Or we could file a separate case against Israel which the court could choose to add to South Africa’s.

To file our own case against Israel, Ireland would need to be in dispute with Israel over its compliance with the Genocide Convention. A basic first step would be to communicate with Israel that the crime of genocide appears to be occurring or imminent in Gaza, as numerous countries have done.

At the very least, Ireland should issue a statement in support of South Africa’s resort to the ICJ for the purpose of preventing serious international crimes.

Since mid-November, a large group of independent United Nations human rights experts have warned of “a genocide in the making” in Gaza and called for all countries to mobilise the international genocide prevention system.

These 15 special rapporteurs and 21 members of UN working groups have sounded their “alarm over discernibly genocidal and dehumanising rhetoric coming from senior Israeli Government officials, as well as some professional groups and public figures, calling for the ‘total destruction’ and ‘erasure’ of Gaza, the need to ‘finish them all’ and force Palestinians from the West Bank and East Jerusalem in to Jordan”. The independent experts note that “Israel has demonstrated it has the military capacity to implement such criminal intentions”.

Among these UN experts are the two esteemed Irish UN special rapporteurs: Prof Siobhán Mullally MRIA, special rapporteur on trafficking in persons, especially women and children; and Mary Lawlor, special rapporteur on the situation of human rights defenders.

The UN High Commissioner for Human Rights has described the situation in Gaza as “apocalyptic”. The UN emergency relief co-ordinator says “Gaza has simply become uninhabitable … while the world watches on”. According to Unicef, the “safe zones” which Israel designates are “tiny patches of barren land, or street corners, or half-built buildings, with no water, no facilities, no shelter from the cold and the rain and no sanitation”.

On January 5th, UN secretary general António Guterres informed the Security Council that ”hunger and thirst are rampant – and widespread famine looms”. Guterres states that an estimated 85 per cent of Palestinians in Gaza are displaced, with more than 60 per cent of homes destroyed. Israel has reportedly killed well over 22,000 people – the large majority children and women – and injured tens of thousands more, including in UN facilities and hospitals and locations announced as “safe”.

Save The Children, meanwhile, highlights that Israel’s indiscriminate bombing has cost more than 10 children per day one or both of their legs.

The Irish Government must offer a more considered response to South Africa’s initiation of ICJ proceedings. It is the least the people of Gaza, and all in Palestine and Israel – whose future depends on peace – deserve.

Last Sunday, Taoiseach Leo Varadkar told RTÉ that the Government has no intention of supporting South Africa’s claim. “Bear in mind what Hamas did on October 7th … Was that not also genocide?” the Taoiseach argued. Referring to the Holocaust, Mr Varadkar cautioned that “this is an area where we need to be very careful”.

Indeed, extreme care is needed when genocide is alleged. That is why the Government and all Oireachtas members should return early from their Christmas recess to debate the facts and law argued by South Africa, and Israel’s responses.

In South Africa’s 84-page legal submissions our Government politicians will find the definition of genocide: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.”

Our politicians will note that South Africa’s legal submissions begin by recognising the gravity of a claim against Israel at the ICJ. These submissions unequivocally condemn and characterise as an atrocity crime under international law the targeting of Israeli civilians and other nationals, and hostage-taking, by Hamas and other Palestinian armed groups. However, rightly, the legal submissions emphasise that genocide is never, ever justified – and that all parties to the Genocide Convention are obliged to act to prevent its occurrence. In them, our politicians will read pages of expressions of intent which have accompanied Israel’s destruction of life and the conditions for living in Gaza. And our politicians will, hopefully, realise that Ireland must make decisions for itself – as a state party to the Genocide Convention and an international law actor in its own right, with a responsibility to act to protect humanity.

There are striking parallels between the present crisis in Gaza and Bosnia in the 1990s.

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Professor Shane Darcy, Deputy Director, Irish Centre for Human Rights

This article first appeared in the Irish Times, January 8 2024

There are striking parallels between the present crisis in Gaza and Bosnia in the 1990s. A common feature has been the deliberate displacement of populations, one which raises profound concerns under international law.

In March 1995, a directive issued by Radovan Karadźić, the president of the Republika Srpska, ordered the Bosnian Serb army to “create an unbearable situation of total insecurity with no hope of further survival or life” in Srebrenica, Bosnia. Over the course of four months, the inhabitants were deprived of basic necessities through the deliberate blocking of humanitarian aid convoys.

A military assault by Bosnian Serb forces in July 1995, during which homes and villages were destroyed, caused thousands of Bosnian Muslim civilians to flee Srebrenica. Many sought refuge in a United Nations peacekeepers’ compound in Potočari. Around 30,000 Bosnian Muslims were later forcibly removed from Potočari by forces under the command of General Ratko Mladić.

Both Karadźić and Mladić were eventually convicted by the International Criminal Tribunal for the Former Yugoslavia and given lengthy prison sentences for their roles in the “ethnic cleansing” in Bosnia, among other atrocities.

Bosnian Serb forces had created a coercive environment in Srebrenica “in which the Bosnian Muslims had no other viable alternative but to leave the enclave in order to stay alive”. The forced removal of civilians from Potočari was “not justified under international law”, the tribunal held.

The United Nations did not prevent these crimes, although the Security Council had been unanimous in its condemnation of serious violations of international law. It demanded the cessation of such conduct and unimpeded delivery of humanitarian aid. During the Balkan crisis, the Security Council imposed sanctions on relevant parties and created the international tribunal with a view to deterrence and accountability.

The contrast with the response of the Security Council to the situation in Gaza could not be starker. Despite the efforts of secretary general António Guterres and a majority of member states, the Security Council has not been able to adopt a resolution calling for a ceasefire. The United States has voted against.

The United States veto, combined with its military, financial and political support for Israel, effectively gives a green light to the continued military assault on Gaza which has already killed tens of thousands of Palestinians and displaced 1.9 million from their homes.

The mass killing of civilians and the taking of hostages on October 7th by Hamas and others does not excuse Israeli violations of international law, just as attacks by Bosnian Muslim forces on Bosnian Serb villages did not justify the actions of the Bosnian Serb army in Srebrenica and Potočari in 1995.

Following the October 7th attacks, the Israeli defence minister Yoav Gallant announced “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed”.

Despite some humanitarian aid having been allowed to enter since then, there remains a widespread shortage of food, water, fuel and other essentials. Starvation and disease is rife. According to the World Health Organisation director general, “Gaza’s health system is on its knees and collapsing”.

Israeli forces have destroyed over 65,000 housing units in Gaza, as well as swathes of farmland and hundreds of public buildings, including schools, mosques and universities.

Tony Karon and Daniel Levy wrote in The Nationthat this conduct “suggests an intention to make the territory uninhabitable for the 2.2 million Palestinians who live there – and to push for expulsion via a militarily engineered humanitarian catastrophe”.

United Nations experts and Palestinian human rights organisations have been warning of the risks of “ethnic cleansing” in Gaza. Such fears are based not only on what is happening on the ground, but also on various Israeli proposals in circulation, as well as the words of senior politicians and others.

“We are now rolling out the Gaza Nakba”, is how one Israeli minister put it, while another called for “the voluntary resettlement of Palestinians in Gaza, for humanitarian reasons, outside of the Strip”. National security minister Ben Gvir views the war as an “opportunity to concentrate on encouraging the migration of the residents of Gaza” and re-establishing Israeli settlements.

International law as applicable in Gaza is unambiguous on this issue. The Fourth Geneva Convention of 1949 prohibits “individual or mass forcible transfers”, as well as deportations from occupied territory to the territory of the Occupying Power or any other country “regardless of their motive”.

Deportations or forcible transfers of populations have been prosecuted as international crimes since Nuremberg. The arrest warrant issued by the International Criminal Court for president Vladimir Putin concerns the forced transfer of children from Ukraine to Russia. In the context of the deportation of Rohingyas from Myanmar to Bangladesh, the Court has emphasised that a humanitarian crisis created by unlawful activity cannot serve to legitimise displacement of a population.

The International Criminal Court has jurisdiction over Gaza and an active investigation is currently underway. This has not prevented international crimes from taking place, as arrest warrants have yet to be issued. Prime minister Benjamin Netanyahu has been concerned enough, however, to denounce the investigation as “pure anti-semitism”.

The United States acting unilaterally or through the United Nations has the power to prevent further ethnic cleansing of Gaza. The United States, the European Commission and Egypt have publicly stated that they do not support the forcible relocation of the Palestinians outside of Gaza.

In Srebrenica, the forced removal of the Bosnian Muslim population happened alongside the execution of thousands of men and boys. Such atrocities were found to constitute genocide.

In Gaza, the risk of genocide grows more acute as Israel’s relentless assault continues and the population remains trapped – in addition to the many killed by Israel’s bombing campaign, reports are emerging of extra-judicial executions of Palestinians by Israeli forces.

Unlawfully displacing Palestinians from Gaza is no solution. Those with the power to do so must make every effort to end the conflict, prevent displacement and take the necessary measures to enforce observance of the cardinal rules of international law.