Palestine vs. Israel Interstate Complaint
The process for inter-state complaints (also called inter-state communications, or state-to-state complaints) allows for a state party to a treaty to submit a complaint to a treaty oversight body about alleged violations of a treaty committed by another state party to the same treaty, unless the state opts out of that procedure at the time of ratification. The basis of inter-state complaints varies slightly across the different Treaty Bodies, but is standard across most human rights treaties or their Optional Protocols.
[For more information on the grounds of State-to-State complaints see the OHCHR Inter-state Complaints webpage.]
In over 50 years of Treaty Body proceedings, only three such complaints have been registered and accepted on their merits. All of them were registered in 2018 by the Committee on the Elimination of Racial Discrimination (CERD). The first two were State of Qatar vs. Kingdom of Saudi Arabia and State of Qatar vs. United Arab Emirates. The decisions on jurisdiction in Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates focused on Article 11 of the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), providing for the complaint procedure “If a State Party considers that another State Party is not giving effect to the provisions of the Convention.” The Committee reached separate decisions on admissibility in Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates.
On 23 April 2018, the State of Palestine submitted an interstate communication to the Committee against Israel under Article 11. It demands of Israel restitutio in integrum under its obligation to resettle back into Israel all of its nationals it has illegally transferred into the occupied Palestinian territory (oPt) since 1967. The State of Palestine calls for CERD to (1) determine the necessity of “withdrawing of the Israeli settler population from the occupied territory” of the State of Palestine, including East Jerusalem (p. 340), (2) for formation of an ad hoc Commission under these proceedings, and (3) calls upon third states, as contracting parties of CERD, to be aware of, and to fulfill their own obligations arising under CERD, as far as concerns Israel’s system of institutionalized material discrimination against indigenous Palestinians.
Accordingly, such third states should be also called upon by the ad hoc Commission to fulfill their obligations under CERD to apply lawful means to bring to an end to the system of racial discrimination set up by Israel, identified as apartheid and giving rise to duties under Article 3 of ICERD. It reiterates the duties of all states under peremptory norms of international law not to recognize as lawful this illegal situation, nor to render aid or assistance in any form in maintaining that situation and to determine that Israel`s policies and practices in the occupied territory of the State of Palestine (p. 341–43). The complaint demands the dismantling of the Israeli settler colonies (referred to as “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.
On 7 November 2018, pursuant to Article 11(2) of the Convention, the State of Palestine has referred the matter again to the Committee with respect to the interstate communication submitted against Israel.
On 14 December 2018, during its 97th session (26 November to 14 December 2018), the Committee requested the two concerned states parties to supply any relevant information on issues of jurisdiction of the Committee or admissibility of the communication, including the exhaustion of all available domestic remedies. The Committee also decided to examine all preliminary questions related to interstate communications at its 98th session (23 April to 10 May 2019), with the participation, without voting rights, of one representative of those concerned states, in compliance with the Convention’s Article 11(5).
On 10 May 2019, the Committee decided to postpone the consideration of the matter during the 99th session and, owing to procedural issues, postponed the proceedings again for the next session. The Committee affirmed its jurisdiction to the communication on 12 December 2019, during its 100th session at which the Committee was also reviewing Israel performance of the treaty. [See “Apartheid over Palestine,” Land Times Issue 19.] CERD had decided to address the issue of admissibility at its next session, but, due to the effect of the COVID-19 pandemic on the Committee’s sessions in 2020, the Committee took up that question during its 103rd session (19 to 30 April 2021), affirming the complaint’s admissibility.
In February 2021, the Committee decided that the background documents regarding the communication Palestine v. Israel should be made public. As of March 2021, the Committee published the documents of the proceedings and decisions in the case State of Palestine vs. Israel, which are now available here.
Subsequently, the Palestine Human Rights Organizations Council (PHROC) submitted an amicus brief in the case, pursuant to ICERD Articles 11–13. While the State of Palestine’s inter-state complaint refers only to Israel illegal practices in the occupied territory of the West Bank and East Jerusalem, the Palestine Human Rights Organizations Council (PHROC) the PHROC amicus brief refers to apartheid imposed upon the Palestinian people as a whole.
Photo:Aviva Raz Shechter, former Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Israel to the United Nations and other International Organizations in Geneva. In her 21 June 2020 farewell address, Shechter rebuked the UN Human Rights Council, accusing it of “unfairly targeting Israel and fostering ‘institutionalized anti-Semitism’ through its notorious Agenda Item 7.” Source: UN Watch.