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Beyond International Human Rights Law: CERD's Holistic Legal Approach

Some discussion has taken place with regards to whether human rights treaty bodies along with the Human Rights Council, all part of the United National human rights machinery, apply and develop international humanitarian law in time of armed conflict and occupation, in concurrence with international human rights law (IHRL). Even less, if any, discussion has been undertaken with respect to the concurrent application of IHRL with other bodies of public international law by human rights treaty bodies, and the way in which these bodies treat other instruments of public international law. Although reference to areas and rules of international law beyond IHRL by UN human rights bodies, especially Special Rapporteurs and fact-finding missions established by the Human Rights Council is not uncommon, it remains unclear to what extent the Committee can or should engage with these bodies of law, and how it should do so, if at all? what analysis it can or should provide when it makes such references, beyond IHRL? and what legal value do the pronouncements by quasi-judicial thematic bodies such as those of the UN human rights system have in terms of creation of precedent and the reliance thereon by other judicial and quasi-judicial bodies?

The Committee on the Elimination of Racial Discrimination’s recent concluding observations on Israel are an interesting case in point for testing these questions. The observations invoke the application of other frameworks of international law, beyond IHRL, namely: (1) the international law on apartheid, a reference to which is also included in Article 3 of the Convention on the Elimination of Racial Discrimination; (2) international law’s counter-terrorism law-enforcement framework; and (3) international humanitarian law, and in particular the law of belligerent occupation.

Notably, before considering the substantive issues concerning Israel’s violations of the Convention in the occupied Palestinian territory, the Committee upholds the applicability of the Convention in the occupied Palestinian territory, affirming the ICJ Wall Opinion (2004), and condemns Israel’s refusal to ensure the compliance of its authorities with the Convention in its activities in the occupied Palestinian territory.

In the first example, in reference to apartheid, the Committee held that

24. 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 (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.

It further recalled “…the existence of two sets of laws, for Palestinians on the one hand and Jewish settlers on the other hand who reside in the same territory, namely the West bank, including East Jerusalem, and are not subject to the same justice system (criminal as well as civil matters)” (paragraph 27). The Committee also notes the “number of discriminatory laws on land issues which disproportionately affect non-Jewish communities” (paragraph 15) and “the consideration of bills conditioning social and economic benefits on completion of military service, thus excluding non-Jewish communities” (paragraph 16), as well as “the maintenance of discriminatory laws especially targeting Palestinian citizens of Israel such as the Citizenship and Entry into Israel Law (Temporary Provision)” (paragraph 18).

Israel’s institutional practice of giving priority to the Jewish community, along with the specific violations committed against  minority and indigenous groups such as the Bedouins, not only constitute individual violations of the Convention but further attest to the problematic nature of the content of Israel’s self-definition as a ‘Jewish and democratic’ state. The true peril of this definition, as the Committee has noted in the past, not being found in its religious character  but in the substance of its practice by the Israeli authorities, the elaborate administrative and legal structures of which entail systematic discrimination amongst other infringements of international law standards. Due to the particular legal character of these norms, namely the prohibition of apartheid, third party states obligations include the duty of non-recognition and non-assistance of these practices, in additional to arguably a duty to cooperate in order to bring Israel’s violations to an end.

In the second case, concerning the invocation of the terrorism framework – having noted Israel’s deficient criminal legislation on incitement to racism, racist organizations, recalling thereby that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression (Articles 2 and 4 of the Convention)” (paragraph 14) – it states as follows,

28. The Committee is concerned about the increase in racist violence and acts of vandalism on the part of Jewish settlers in the Occupied Palestinian Territory targeting non-Jews, including Muslims and Christians and their holy places, and about information according to which 90 per cent of Israeli police investigations into settler-related violence carried out between 2005 and 2010 were closed without prosecution. The Committee is particularly alarmed by reports of impunity of terrorist groups such as Price Tag, which reportedly enjoy political and legal support from certain sections of the Israeli political establishment. The Committee is also concerned about the impact of settler violence on the right of women and girls to access basic services such as the right to education (Articles 4 and 5 of the Convention).
While noting with interest the establishment of the ministerial team meant to address matters relating to settler violence, the Committee, recalling its previous concluding observations (CERD/C/ISR/CO/13, para. 37), urges the State party to ensure that all forms of violence and harassment are impartially investigated by the judiciary and that perpetrators are prosecuted to the fullest extent of the law, irrespective of their national, ethnic or other origin.

In so noting, the Committee recalls the UN counter-terrorism framework of law enforcement instruments which includes the Convention on the Suppression of the Financing of Terrorism 1999, which in its Article 2 defines offences under the Convention as the financing of acts “intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act” (Article 2). Settler ‘Price Tag’ activities are mounted in response to measures taken by the Israeli government that are meant to impose restrictions on the construction of new settlements in the OPT, to counter civil persons and objects with the aim of influencing the behaviour of those persons and the political decisions of State authorities. Another interesting facet of the Convention’s invocation is its effects on third party states, namely states like the US, Netherlands, UK and France, who have been signalled for having groups and individuals within their jurisdictions who support settlers and settlements. In order to be able to conclusively determine whether they are in breach of their obligations under the Convention, they are in a position to demand that Israel, as a State Party to the Convention, adhere to its obligation to afford other State Parties “the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings” for individuals who are suspected of having committed an offense under the Convention (Article 12).

Arguably a third relevant legal question, reaching beyond IHRL, broached by the Committee concerns the extent of Israel’s obligations towards the population of the Gaza Strip. Although the status of the Strip is internationally accepted to be occupied territory – territory over which Israel maintains effective control (the Human Rights Council and the ICRC continue to refer to the Gaza Strip as part of the occupied Palestinian territory) – the extent of this control and the specific remits of its responsibilities towards the population, in light of the relevant provisions of the law of occupation (namely, Article 6 of the Fourth Geneva Convention, which states crudely that the occupier is only responsible “to the extent that such Power exercises the functions of government in such territory”) has been the subject of ongoing debate, due primarily to the inconclusive availability of fact with respect to Israel’s control in the Gaza Strip as well as the uncertain relevance of Israel’s potential ability to regain control over certain areas of life.

Although the international community continues to hold a unanimous position on the applicability of the law of occupation to the Gaza Strip, due to Israel’s persisting control of the territory, some debate continues to be take place led by a dissenting minority of scholars and practitioners. The Committee, nevertheless, takes a firm stance on the Israeli army’s obligations vis-à-vis the population of the Gaza Strip,

26. Despite explanations provided by the delegation during the dialogue, the Committee remains concerned at the dramatic and disproportionate impact of the Israel Defense Forces’ blockade and military operations on Palestinians’ right to housing and basic services in the Gaza Strip. The Committee received worrying reports that only a minority of houses and civilian infrastructures, such as schools, hospitals and water plants, could be rebuilt, due to the State party’s blockade on the import of construction materials into the Gaza Strip (Articles 2, 3 and 5 of the Convention).
The State party should fully respect the norms of humanitarian law in the Occupied Palestinian Territory, rescind its blockade policy and urgently allow all construction materials necessary for rebuilding homes and civilian infrastructures into the Gaza Strip so as to ensure respect for Palestinians’ right to housing, education, health, water and sanitation in compliance with the Convention.

The Committee’s approach calls a number of issues into question. The acts of invoking legal provisions beyond IHRL and the Convention, the implementation of which it is assigned to monitor, asks whether the Committee was warranted in ‘extending’ its mandate to legal questions pertaining to other domains of public international law, and whether determinations made by a UN human rights treaty body can be seen as constitutive (or even declaratory) of a legal position by an international quasi-judicial body. Whilst forming part of the ‘obiter dicta’ of the Committee’s observations, these pronouncements go beyond the traditional work of the UN human rights system, therefore arguably resulting in the Committee having undertaken a more influential role in the application of international law.

Although some might refer to such a curious move as an act of ‘stepping out of line’, this development should also be appreciated for being on occasion for championing the role that quasi-judicial international human rights bodies can play in demanding compliance with other frameworks and instruments of international law directly relevant to the facts they examine. A step that could afford at least nominal support to the development of international law, if not also being symbolically beneficial to its enforcement. Given the continuing fragmentation of international law which produces the interaction between legal regimes of public international law, this move by the Committee could be an indicator of an emerging practice concerning both the role of the UN human rights system within the international legal order and the influence of human rights on other areas of international law. Notwithstanding some unanswered questions concerning form more than content of the Committee’s analysis, there is nothing to stop the reliance upon these and other observations that go beyond IHRL by civil society, practitioners and potentially also governments and judicial bodies, national and international.

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