The lawfare against Israel has many faces. Next to the case pending before the International Court of Justice (ICJ) (Palestine vs. USA) and the investigation started by the Prosecutor at the International Criminal Court (ICC), a communication has been submitted by Palestine against Israel to the Committee on the Elimination of Racial Discrimination (CERD). In the communication Palestine claims that Israel has violated various articles (2, 3 and 5) of the Convention on the Elimination of All Forms of Racial Discrimination with regard to Palestinian citizens living in what is called the ‘Occupied Palestinian Territory’.
The Convention on the Elimination of All Forms of Racial Discrimination dates from 7 December 1966 and entered into force on 4 January 1969. It has been ratified by Israel on 3 January 1979. The ‘State of Palestine’ acceded to it on 2 April 2014. The implementation is supervised by the CERD, a body composed of 18 experts of acknowledged impartiality, serving in their personal capacity. One of the supervisory mechanisms is a mandatory inter-state communications procedure provided for by Article 11 of the Convention. In case a State Party considers that another State is not giving effect to its obligations it has the right to bring this to the attention of the CERD. The procedure in the Articles 11 to 13 of the Convention has a conciliatory character. It cannot lead to a (binding) decision of the CERD on the question whether or not the Convention has been violated.
On 12 December 2019 the CERD decided on the question of its jurisdiction. This was at issue because Israel had indicated already on the occasion of the accession of Palestine to the Convention that it did not recognize Palestine as a State and that it did not consider itself to be in a treaty relationship with Palestine. As a consequence Israel submitted in the case before us that the CERD has no jurisdiction as to an inter-state communications procedure under Article 11 of the Convention. In an elaborate decision the majority of the Committee held, notwithstanding Israel’s position, that it has jurisdiction. The main argument is that the Convention on the Elimination of All Forms of Racial Discrimination has, compared to other international treaties, a special character, as it concerns erga omnes obligations: the elimination of all forms of racial discrimination is a duty owed to the international community as a whole. The decision was adopted with 10 votes in favour, 3 votes against and 2 abstentions. Five members of the Committee (assumedly those who voted against and abstained; a sixth member, absent during the decision making, subsequently indicated that he intended to sign the individual opinion) wrote a joint individual opinion. They argue that the CERD has no jurisdiction due to the fact that the Respondent State, Israel, does not consider itself to be in a treaty relationship with the Applicant-State. Their argument is based on the general principles of treaty law. Their conclusion is that “the jurisdiction of international supervisory bodies is based on the consent of States to enter into a treaty relation with other States. Without the said consent, the CERD does not have jurisdiction to hear inter-state communications.” As the majority decided for jurisdiction, we can expect to hear more on this case in the future.
More in general, the case illustrates that Palestine is very active to use international legal mechanisms to strengthen its position at the detriment of Israel. It seems to prefer this approach to the commitment it made in the Oslo Agreements to negotiate with Israel. Moreover, we see that the presumed statehood of Palestine is central to the three procedures now pending before the ICJ, the ICC and the CERD.