Apartheid in the ICERD and the Apartheid Convention
The ICERD is a short document, comprised of only seven substantive articles. It is a powerful document, however, as it both imposes positive duties upon a state to combat racism as well as negative duties mandating that states refrain from infringing on the equality of all persons to education, health, society, family, nationality, religion, work, and to be free from violence. Entered into force in 1969, the ICERD preceded the ratification of the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) by seven years.
Article 3 of ICERD condemns “racial segregation and apartheid” and obligates State parties to “prevent, prohibit and eradicate all practices of this nature under their jurisdiction.” While Israel is not a party to the Apartheid Convention, it is a party to the ICERD. Moreover, while some commentators claim that the definition of the crime of Apartheid in the Apartheid Convention is particular to the case of South Africa, no such disagreement over the applicability of the crime exists in the ICERD.1
Applicability of the ICERD in the oPt
Palestinian human rights organizations began bringing their claims arising out of the Occupied Palestinian Territory (OPT) before the Committee in 1998. Israel has consistently rejected the applicability of human rights treaties to the Territory it occupies. Significantly, it does not contend that another body of law is better suited for the Territory. To the contrary, it argues that even Occupation Law, established in the Fourth Geneva Convention Relative to the Protection of Civilians in Times of War (FGC), is applicable only as a matter of discretion and not law. Israel’s contention would render the OPT a legal black hole. Authoritative human rights bodies, however, have rejected these claims.
The Committee on Economic, Social, and Cultural Rights as well as the Human Rights Committee have held that human rights law is applicable to the OPT. In its Advisory Opinion on Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice also affirmed the applicability of human rights law to the OPT. The Committee for the Elimination of All Forms of Racial Discrimination has affirmed the applicability of ICERD repeatedly. Accordingly, despite Israel’s enduring protests, the Committee for the Elimination of Racial Discrimination has reviewed the State’s compliance with the Convention in 1998, 2003, and 2007.2 At those Review Sessions, the Committee had made significant findings but nothing as bold or firm as its conclusions and observations in this 2012 Session.
Apartheid and Israel: Highlighting the strides between 2007 and 2012
In the Committee’s 80th session, members of the Palestinian Council of Human Rights Organizations (PCHRO), including Badil, collaborated with one another in unprecedented ways. Rather than submit separate reports and make separate oral statements and share separate written statements, during this session, these human rights organizations closely coordinated their written and oral interventions. Collectively, the organizations demonstrated how racial discrimination between Jews and non-Jews drove the ban on family reunification; the forced population transfer of indigenous Bedouins in the Negev; underpinned the lack of a constitutional right to equality; explained the dramatic spike in settler violence; the disproportionate allocation of water; the forced population transfer of Palestinians from East Jerusalem; the systematic destruction of Palestinian homes; and the unequal access to justice and accountability in Gaza. Their collaboration paid off in tangible ways as indicated by the Committee's Concluding Observations.
The Committee has come to describe the situation within the OPT as demonstrative of Apartheid. Whereas in 2007, it noted that Israel cannot legitimately distinguish between Israelis and Palestinians in the OPT on the basis of citizenship, in 2012 it states that it is extremely concerned by the de facto segregation and discrimination within the Territory between Jews and non-Jews. The distinction is of paramount importance. Whereas states can legitimately discriminate between citizens and aliens, they cannot legitimately privilege communities under their jurisdiction based on race and ethnicity. Here, the Committee is noting that Israel’s discriminatory practices do not distinguish between citizens and non-citizens but between Jews and non-Jews. In paragraph 24 it writes:
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 (Article 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.
The Committee also addressed the discriminatory zoning and planning policy as a comprehensive system aimed at achieving a “demographic balance” (para. 25). Accordingly, it urges Israel to reconsider the "entire policy" in order to ensure equal access to, and enjoyment of, land and its resources among Palestinian Bedouin communities.
The Committee rejected Israel’s argument that military exigencies necessitate the differentiated treatment among the OPT’s population. To the contrary, the Committee concluded that in order to prevent racial discrimination in the criminal justice system, Israel must "ensure equal access to justice for all persons residing in territories under the State Party's effective control" (para. 27). It considers the trial of children as contravention of international norms and regards administrative detention as no less than arbitrary detention under international human rights law. Rather than accept the disparate treatment of Palestinians and Jewish settlers as resulting from the application of Occupation Law, the Committee attributes the discriminatory treatment to Israel's establishment of two sets of laws; one for Palestinians and another for Jewish settlers.
Apartheid within Israel
Perhaps the most significant developments in the Committee’s Conclusions concerned its application of Article 3 violations to the treatment of non-Jewish persons within Israel itself. In paragraph 11 it notes
… with increased concern that Israeli society maintains Jewish and non-Jewish sectors, which raises issues under article 3 of the Convention. Clarifications provided by the delegation confirmed the Committee’s concerns in relation to the existence of two systems of education, one in Hebrew and one in Arabic, which except in rare circumstances remain impermeable and inaccessible to the other community, as well as separate municipalities: Jewish municipalities and the so-called “municipalities of the minorities.”
The Committee noted racial discrimination between Jews and non-Jews as facilitating unequal access to land and housing rights within Israel in ways that mirror its policies in the OPT. Consider, that whereas in 2007, the Committee took issue with the role of para-state organizations and their role in confiscating land for exclusive Jewish use and enjoyment, in the 2012 Conclusions, the Committee places this burden upon the State itself and notes that the State party must "ensure equal access to land and property and to that end, abrogate or rescind any legislation that does not comply with the principle of non-discrimination."
The Committee was particularly concerned with Israel Land Administration Law of 2009, the 2010 Amendment to the Land (Acquisition for Public Purpose) Ordinance (1943); and the 2010 Amendment to the Negev Development Authority Law (1991). It considered the Admissions Committee Law (2011), which gives individuals and private persons the right to discriminate against persons in regards to housing, as a "clear sign" that concerns about segregation remain pressing (para. 11). This finding undermines Israel’s attempts to circumvent the holding in Ka’adan v. The Israel Lands Administration (2000), which deemed discriminatory housing and land policies illegal, by exporting the discriminatory scheme to private actors. It also emphasized that Israel should withdraw the discriminatory Law for the Regulation of the Bedouin Settlement in the Negev proposed in 2012, which the Committee found to be tantamount to "legaliz[ing] the ongoing policy of home demolitions and forced displacement of the indigenous Bedouin communities" (para. 2).
In line with this bold approach, the Committee urged Israel to rescind the Citizenship and Entry into Israel Law and to facilitate the reunification of all families irrespective of their ethnic, national or other origin
By extending its application of Article 3 to Israel and by finding that it exists as a de jure policy within the OPT, the Committee did in its 2012 Concluding Observations what the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, better known as the Durban Conference, could not achieve. In fact, the Committee has urged Israel to "give effect to the Durban Declaration and Programme of Action.” Bearing in mind Israel’s objections to the process and the document, the Committee encouraged the State Party to reexamine its position and to adopt policies to implement Durban because of the document’s significance for "a large segment of humanity" (para. 31). This marks a significant milestone in the struggle for Palestinian human rights. Whereas, compliance with the FGC would ultimately remove the military occupation and return the situation to its status quo ante, human rights law would reverse those conditions of inequality that have developed as a result of the Occupation’s prolonged nature. Moreover, the Committee acknowledged that the discriminatory treatment between Jews and non-Jews within Israel concerning their human rights, including land and housing rights, is tantamount to Apartheid. The Committee’s developments certainly vindicate the efforts of Palestinian human rights organizations and their partners. However, its inability to enforce its recommendations heightens the significance of, and the need for, the continued work of human rights organizations, scholars, and activists.
1. John Dugard, international law scholar, explains that the Apartheid Convention’s broad application has been established by its invocation and application elsewhere, such as the Additional Protocol I (1977) to the Geneva Conventions (1949) which recognize apartheid as a grave breach without geographical limitation in Article 85, paragraph 4(c). Similarly, Article 7 of the Rome Statute included the crime of apartheid as a crime against humanity.
2. The Committee scheduled to review Israel in 2006 at its 69th Session. Due to Israel’s request for a postponement, it was not reviewed until 2007 during the Committee’s 70th Session.
* Noura Erakat is a human rights attorney and Badil's US-based Legal Advocacy Consultant
* Rania Madi is a Palestinian lawyer and activist and Badil's Geneva-based Legal Advocacy Consultant