Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (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’. The provision proved central to the recent International Court of Justice (ICJ) Advisory Opinion (AO) on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, in which the Court found:
‘The Court observes that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.’ (para 229)
This led to some commentary that the Court had reached a finding of apartheid, with Human Rights Watch quickly headlining that the “World Court Finds Israel Responsible for Apartheid”. However, as I tweeted following the ruling, and which this blog also affirmed, this is not the right reading. Article 3 refers to racial segregation and apartheid, and a breach of Article 3 could refer to racial segregation, apartheid, or both. This is seen in the Separate Opinions, some of which considered the finding of a breach of Article 3 as a finding of apartheid; others believing the Court had not made such a finding. Thus, Judge Tladi considered: ‘The Court was correct to find that the policies and practices of Israel in the OPT amount to apartheid’; while Judge Nolte stated: ‘The Court considers Israel’s legislation and measures constitute a breach of Article 3 CERD…while leaving open the question whether it considers Israel’s policies and practices to be a form of racial segregation or apartheid’.
In light of the Court’s finding, this piece will explore Article 3 ICERD in more detail. It will set out the origin of racial segregation and apartheid in the Convention; the historic practice of the Committee on the Elimination of Racial Discrimination (CERD) that has differentiated the terms; and the relevance of the ICJ decision to the Palestine v Israel case currently before CERD, as well as its potential longer-term significance in relation to litigation before CERD and/or the ICJ.
Racial Segregation and Apartheid
Adopted in 1965, ICERD is the first treaty prohibition of apartheid. It remains the only treaty that addresses State obligations in relation to apartheid, with the 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) and the 1998 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 pointed out in hearings before the ICJ, ‘[t]he prohibition of racial discrimination and apartheid is reflected most in CERD’.
Article 3 addresses also racial segregation. In that regard, the context for the adoption of ICERD should be recalled. Debates on the draft 1963 Declaration on the Elimination of All Forms of Racial Discrimination, which formed the basis for the text of the 1965 Convention, took place in New York against a backdrop of the civil rights movement. On 30 September 1962, riots erupted on the campus of the University of Mississippi where segregationists gathered to protest the enrolment of James Meredith, an African-American Air Force veteran attempting to integrate the all-white college. The Third Committee debate took place just over a month later on 1 November 1962, where the delegate of the USSR put ‘the recent incidents in Mississippi’ to the delegate of the United States. Ultimately, the Declaration and Convention would expressly condemn racial segregation as well as apartheid, with broad support for this throughout the Third Committee. As one delegate put it in 1963, ‘countries like South Africa and the United States still practised racial segregation’.
Importantly, Article 5 of the text of the 1963 Declaration provided a “hierarchy” of terms. It read: ‘An end shall be put without delay to governmental and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies.’ The use of the word ‘especially’ differentiated racial segregation from apartheid, implying that apartheid is a particularly egregious form of racial segregation. Separation was understood as ‘resulting from’ policies of racial segregation and apartheid. The provision appeared to denote a hierarchy of apartheid, segregation and separation in descending gravity.
An early draft of Article 3 ICERD was modelled on Article 5 of the Declaration and took the same approach, reading: ‘Each State Party shall put an end without delay to governmental, and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies.’ However, it would change in the drafting process, first dropping references to segregation and separation before re-instating segregation at the behest of the USSR, but without the ‘especially’ formula. The resulting Article 3 condemns racial segregation and apartheid without any gradation of the terms.
Nevertheless, the ICERD text contains further references to segregation outside of Article 3 that do not refer also to apartheid which allow the terms to be distinguished. Its fourth preambular paragraph reads: ‘Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith’. Its tenth preambular paragraph reads: ‘Resolved to adopt all necessary measures … to build an international community free from all forms of racial segregation’. As a result, there are three contexts to segregation in the treaty – colonialism, apartheid and a wider ‘all forms of racial segregation’.
CERD Practice under Article 3: Apartheid (1970-95) and Segregation (1995-)
CERD began its work in 1970. From 1970-95, it implemented Article 3 primarily as an “apartheid provision” in relation to South Africa and the southern African region. In 1995, with the end of apartheid in South Africa, CERD issued General Recommendation XIX on Article 3 which noted that ‘the article as adopted prohibits all forms of racial segregation in all countries.’ From 1995 onwards, CERD implemented Article 3 primarily as a “segregation provision” in this wider sense.
These periods are also distinct in applying two different aspects of Article 3 – the first engaged the obligation of all States Parties to ‘particularly condemn racial segregation and apartheid’; while the second engaged the undertaking of each State Party ‘to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. The drafters foresaw the need for these differentiated obligations inherent in Article 3. In 1963, South Africa made it clear that it would not support the draft Declaration and Convention, which it perceived as an unjust attack on it (it would eventually ratify in 1998). The early draft of Article 3, quoted above, read that ‘Each State Party shall put an end (…)’; but this was changed to ‘States Parties particularly condemn’. As a result, Article 3 begins with a call to all States Parties to particularly condemn racial segregation and apartheid wherever it occurs, including in non-States Parties. It then addresses individual States practising racial segregation and apartheid, requiring these ‘to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. Note that this second obligation to ‘prevent, prohibit and eradicate’ is jurisdictionally limited – it is addressed only to States with practices of this nature in territories under their jurisdiction.
In its first session in 1970, CERD set out that the obligation to ‘particularly condemn’ apartheid in Article 3 was a reporting requirement of all States Parties that related to their diplomatic, economic and other relations with what it termed the ‘racist regimes of Southern Africa’, including South Africa, Southern Rhodesia and Namibia. It did not address the second limb of Article 3 in this work, since practices of apartheid were not under the jurisdiction of any State Party at that time. This was not without contestation – certain Western States such as the UK resisted reporting on their relations with South Africa. In 1975, CERD issued Decision 2(XI) on “Relations with racist regimes” which categorically underlined its position:
‘Declares that all policies, practices or relations which have the effect of supporting, sustaining or encouraging racist regimes are irreconcilable with the commitment to the cause of the elimination of racial discrimination which is inherent in the ratification of, or accession to, the International Convention on the Elimination of All Forms of Racial Discrimination, and inconsistent with the specific commitment of States parties to condemn racial segregation and apartheid in accordance with article 3 of the Convention’. (here p. 68)
This body of work must be one of the earliest examples of an erga omnes obligation being applied, as all States Parties were systematically examined on their relations with Southern African regimes for 25 years (I discuss in detail here). In addition to diplomatic and trade relations, military cooperation was of consistent concern. It also engaged sports in the ‘other relations’ category, with New Zealand, for example, questioned in 1976 on its participation in sporting events in South Africa. As CERD noted, ‘sports had become one of the chief instruments used by the international community to combat apartheid’.
From 1995 onwards, CERD focussed on the second limb of Article 3 and the individual obligation of each State Party to prevent, prohibit and eradicate in the context of racial segregation. Here, it has applied Article 3 to a much wider range of practices in a number of States Parties, such as segregation of the Roma in education in central Europe. It has not required all States Parties to ‘particularly condemn’ such practices of segregation. As a result, a violation of Article 3 ICERD is not ipso facto a finding of apartheid. Nevertheless, as the ICJ rightly stresses, Article 3 refers to ‘two particularly severe forms of racial discrimination’.
Article 3 and the OPT
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 State report. It has unquestionably found Israel to be in violation of Article 3 (see here para 24), but as with the Court’s AO, 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).
In Palestine v Israel, Palestine requests specific ‘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’. Although we are now 6 years on, CERD has yet to reach a final decision in this case. With a strong finding of a breach of Article 3 from the ICJ and several judicial opinions interpreting this as a finding of apartheid, this may well create a platform for CERD to determine the issue.
However, as a number of the ICJ AO separate opinions also note, ICERD does not define apartheid for the purposes of reaching such a determination. Palestine’s communication in Palestine v Israel took note of this, considering the definition of apartheid in both the Apartheid Convention and the Rome Statute for the purposes of interpreting Article 3, and concluding that the Apartheid Convention provides the best definition (here at p. 296-7). But a number of ICJ judges have drawn attention to the differences between ICERD as a human rights instrument, and the Apartheid Convention and the Rome Statute as international criminal law instruments. As Judge Iwasawa highlighted, apartheid is ‘both a violation of international human rights law and an international crime, and thus may entail State responsibility and individual criminal responsibility … Like genocide, the international crime of apartheid requires the presence of dolus specialis towards a particular group’ [which ICERD may not]. The questions put by UNGA to the Court ‘concern[ed] Israel’s “discriminatory legislation and measures” under international human rights law and not apartheid as an international crime.’
Judge Nolte also observed that ‘these two treaties [Apartheid Convention and Rome Statute] are of a different character than CERD, as they deal with the “crime of apartheid”, and thus the responsibility of individuals for apartheid, whereas Article 3 of CERD contains a prohibition of apartheid addressed to States.’ Nevertheless, the Opinion considered that the Apartheid Convention and Rome Statute ‘can inform the interpretation of Article 3 of CERD’.
This appears the right approach, but there is also an opportunity for CERD in Palestine v Israel to consider whether ICERD as a human rights instrument has a sui generis understanding of apartheid. Such an understanding would have to distinguish apartheid from its Article 3 sister term, racial segregation. Patrick Thornberry’s ICERD Commentary provides a gradated understanding of both terms, viewing racial segregation as ‘a concentrated form of discrimination through exclusion’, with apartheid representing ‘a further concentration’, displaying additional characteristics of domination integrated into a determinate public policy. Judge Nolte also considered that ‘[r]acial segregation is the broader term, apartheid being the gravest form of racial segregation’.
The Settlements as a Breach of Article 3
In Palestine v Israel, Palestine has submitted that Israel ‘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’. This appears to be supported in the ICJ AO which specifically links the settlements with a breach of Article 3 ICERD: ‘Israel’s legislation and measures impose and serve to maintain a near-complete separation…between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD’ [emphasis added]. Similarly, in 2013, the Independent International Fact-finding Mission of the UN Human Rights Council documented the many human rights violations that emanate from the settlements, describing ‘a system of total segregation between the settlers and the rest of the population living in the Occupied Palestinian Territory’ (here at para 103). The linking of illegal settlements with racial segregation and potentially apartheid, and the need to dismantle the settlements as a pre-condition to terminate this system, appears to be increasingly recognised.
Potential Litigation
The obligation of all States Parties to ICERD (of which there are 182) to ‘particularly condemn’ racial segregation and apartheid in the OPT could potentially be litigated before CERD and/or the ICJ. In its decision on Jurisdiction in Palestine v Israel, CERD noted that ‘the claims brought forward in the present inter-State communication pertain to the interests of all States Parties to the Convention.’ In Nicaragua v Germany currently before the ICJ, Nicaragua noted that ‘[b]oth Nicaragua and Germany are also parties to the CERD…in the case of racial discrimination as in the case of apartheid, States have a common interest in ensuring that these violations are brought to an end’.
Any State Party to ICERD that provides recognition, aid or assistance to the illegal situation, including settlements or settlement policy, would potentially be in breach of the Article 3 obligation to particularly condemn racial segregation or apartheid. A number of States Parties have reservations to ICERD’s compromissory clause (Article 22), such as the US. However, an inter-State communication in relation to the obligation of the US under Article 3 would remain possible before CERD, given the Article 11 inter-State communications mechanism is compulsory. There are 157 States Parties who do not have a reservation to Article 22, including all of Europe, which could potentially be brought before the ICJ for a violation of Article 3 if providing recognition, aid or assistance to the illegal situation.
Conclusion
The ICJ AO has held Israel to be in violation of Article 3 ICERD. Although it can be interpreted both ways as to whether this is a finding of apartheid, there should be no doubt as to its significance. It represents at a minimum a finding of racial segregation, and the fact that many judges did indeed view it as a finding of apartheid is of major import. As Judge Salam concluded, ‘Israel’s commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination, and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid.’
The immediate impact is how the decision may influence CERD’s pending decision in Palestine v Israel, and the Committee may well weigh the separate opinions as to what is meant by the Court’s finding. But the Committee, like the Court, might not reach a definitive finding on apartheid. CERD has, to date, taken the same approach as the Court’s AO – articulating a breach of Article 3 without individuating its elements. It remains to be seen if it will depart from this, although, as noted, Palestine’s communication has specifically requested that it make an individuated finding of apartheid.
The obligations of Article 3 apply to practices of racial segregation, or apartheid, or both. Article 3 addresses individual States Parties that engage in practices of this nature in territories under their jurisdiction, as well as all States Parties in the call to particularly condemn such practices. CERD has consistently interpreted the obligation to condemn as engaging diplomatic, economic, military and other relations, and opposable to every State Party. There is potential for the Article 3 obligations of all States Parties to ICERD to be further litigated if recognising the illegal situation or rendering aid or assistance in its maintenance, notably in the context of the settlement policy which is specifically linked to the breach of Article 3.
‘Racial Segregation and Apartheid’ in the ICJ Palestine Advisory Opinion
Written by David KeaneArticle 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (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’. The provision proved central to the recent International Court of Justice (ICJ) Advisory Opinion (AO) on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, in which the Court found:
‘The Court observes that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.’ (para 229)
This led to some commentary that the Court had reached a finding of apartheid, with Human Rights Watch quickly headlining that the “World Court Finds Israel Responsible for Apartheid”. However, as I tweeted following the ruling, and which this blog also affirmed, this is not the right reading. Article 3 refers to racial segregation and apartheid, and a breach of Article 3 could refer to racial segregation, apartheid, or both. This is seen in the Separate Opinions, some of which considered the finding of a breach of Article 3 as a finding of apartheid; others believing the Court had not made such a finding. Thus, Judge Tladi considered: ‘The Court was correct to find that the policies and practices of Israel in the OPT amount to apartheid’; while Judge Nolte stated: ‘The Court considers Israel’s legislation and measures constitute a breach of Article 3 CERD…while leaving open the question whether it considers Israel’s policies and practices to be a form of racial segregation or apartheid’.
In light of the Court’s finding, this piece will explore Article 3 ICERD in more detail. It will set out the origin of racial segregation and apartheid in the Convention; the historic practice of the Committee on the Elimination of Racial Discrimination (CERD) that has differentiated the terms; and the relevance of the ICJ decision to the Palestine v Israel case currently before CERD, as well as its potential longer-term significance in relation to litigation before CERD and/or the ICJ.
Racial Segregation and Apartheid
Adopted in 1965, ICERD is the first treaty prohibition of apartheid. It remains the only treaty that addresses State obligations in relation to apartheid, with the 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) and the 1998 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 pointed out in hearings before the ICJ, ‘[t]he prohibition of racial discrimination and apartheid is reflected most in CERD’.
Article 3 addresses also racial segregation. In that regard, the context for the adoption of ICERD should be recalled. Debates on the draft 1963 Declaration on the Elimination of All Forms of Racial Discrimination, which formed the basis for the text of the 1965 Convention, took place in New York against a backdrop of the civil rights movement. On 30 September 1962, riots erupted on the campus of the University of Mississippi where segregationists gathered to protest the enrolment of James Meredith, an African-American Air Force veteran attempting to integrate the all-white college. The Third Committee debate took place just over a month later on 1 November 1962, where the delegate of the USSR put ‘the recent incidents in Mississippi’ to the delegate of the United States. Ultimately, the Declaration and Convention would expressly condemn racial segregation as well as apartheid, with broad support for this throughout the Third Committee. As one delegate put it in 1963, ‘countries like South Africa and the United States still practised racial segregation’.
Importantly, Article 5 of the text of the 1963 Declaration provided a “hierarchy” of terms. It read: ‘An end shall be put without delay to governmental and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies.’ The use of the word ‘especially’ differentiated racial segregation from apartheid, implying that apartheid is a particularly egregious form of racial segregation. Separation was understood as ‘resulting from’ policies of racial segregation and apartheid. The provision appeared to denote a hierarchy of apartheid, segregation and separation in descending gravity.
An early draft of Article 3 ICERD was modelled on Article 5 of the Declaration and took the same approach, reading: ‘Each State Party shall put an end without delay to governmental, and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies.’ However, it would change in the drafting process, first dropping references to segregation and separation before re-instating segregation at the behest of the USSR, but without the ‘especially’ formula. The resulting Article 3 condemns racial segregation and apartheid without any gradation of the terms.
Nevertheless, the ICERD text contains further references to segregation outside of Article 3 that do not refer also to apartheid which allow the terms to be distinguished. Its fourth preambular paragraph reads: ‘Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith’. Its tenth preambular paragraph reads: ‘Resolved to adopt all necessary measures … to build an international community free from all forms of racial segregation’. As a result, there are three contexts to segregation in the treaty – colonialism, apartheid and a wider ‘all forms of racial segregation’.
CERD Practice under Article 3: Apartheid (1970-95) and Segregation (1995-)
CERD began its work in 1970. From 1970-95, it implemented Article 3 primarily as an “apartheid provision” in relation to South Africa and the southern African region. In 1995, with the end of apartheid in South Africa, CERD issued General Recommendation XIX on Article 3 which noted that ‘the article as adopted prohibits all forms of racial segregation in all countries.’ From 1995 onwards, CERD implemented Article 3 primarily as a “segregation provision” in this wider sense.
These periods are also distinct in applying two different aspects of Article 3 – the first engaged the obligation of all States Parties to ‘particularly condemn racial segregation and apartheid’; while the second engaged the undertaking of each State Party ‘to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. The drafters foresaw the need for these differentiated obligations inherent in Article 3. In 1963, South Africa made it clear that it would not support the draft Declaration and Convention, which it perceived as an unjust attack on it (it would eventually ratify in 1998). The early draft of Article 3, quoted above, read that ‘Each State Party shall put an end (…)’; but this was changed to ‘States Parties particularly condemn’. As a result, Article 3 begins with a call to all States Parties to particularly condemn racial segregation and apartheid wherever it occurs, including in non-States Parties. It then addresses individual States practising racial segregation and apartheid, requiring these ‘to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. Note that this second obligation to ‘prevent, prohibit and eradicate’ is jurisdictionally limited – it is addressed only to States with practices of this nature in territories under their jurisdiction.
In its first session in 1970, CERD set out that the obligation to ‘particularly condemn’ apartheid in Article 3 was a reporting requirement of all States Parties that related to their diplomatic, economic and other relations with what it termed the ‘racist regimes of Southern Africa’, including South Africa, Southern Rhodesia and Namibia. It did not address the second limb of Article 3 in this work, since practices of apartheid were not under the jurisdiction of any State Party at that time. This was not without contestation – certain Western States such as the UK resisted reporting on their relations with South Africa. In 1975, CERD issued Decision 2(XI) on “Relations with racist regimes” which categorically underlined its position:
‘Declares that all policies, practices or relations which have the effect of supporting, sustaining or encouraging racist regimes are irreconcilable with the commitment to the cause of the elimination of racial discrimination which is inherent in the ratification of, or accession to, the International Convention on the Elimination of All Forms of Racial Discrimination, and inconsistent with the specific commitment of States parties to condemn racial segregation and apartheid in accordance with article 3 of the Convention’. (here p. 68)
This body of work must be one of the earliest examples of an erga omnes obligation being applied, as all States Parties were systematically examined on their relations with Southern African regimes for 25 years (I discuss in detail here). In addition to diplomatic and trade relations, military cooperation was of consistent concern. It also engaged sports in the ‘other relations’ category, with New Zealand, for example, questioned in 1976 on its participation in sporting events in South Africa. As CERD noted, ‘sports had become one of the chief instruments used by the international community to combat apartheid’.
From 1995 onwards, CERD focussed on the second limb of Article 3 and the individual obligation of each State Party to prevent, prohibit and eradicate in the context of racial segregation. Here, it has applied Article 3 to a much wider range of practices in a number of States Parties, such as segregation of the Roma in education in central Europe. It has not required all States Parties to ‘particularly condemn’ such practices of segregation. As a result, a violation of Article 3 ICERD is not ipso facto a finding of apartheid. Nevertheless, as the ICJ rightly stresses, Article 3 refers to ‘two particularly severe forms of racial discrimination’.
Article 3 and the OPT
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 State report. It has unquestionably found Israel to be in violation of Article 3 (see here para 24), but as with the Court’s AO, 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).
In Palestine v Israel, Palestine requests specific ‘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’. Although we are now 6 years on, CERD has yet to reach a final decision in this case. With a strong finding of a breach of Article 3 from the ICJ and several judicial opinions interpreting this as a finding of apartheid, this may well create a platform for CERD to determine the issue.
However, as a number of the ICJ AO separate opinions also note, ICERD does not define apartheid for the purposes of reaching such a determination. Palestine’s communication in Palestine v Israel took note of this, considering the definition of apartheid in both the Apartheid Convention and the Rome Statute for the purposes of interpreting Article 3, and concluding that the Apartheid Convention provides the best definition (here at p. 296-7). But a number of ICJ judges have drawn attention to the differences between ICERD as a human rights instrument, and the Apartheid Convention and the Rome Statute as international criminal law instruments. As Judge Iwasawa highlighted, apartheid is ‘both a violation of international human rights law and an international crime, and thus may entail State responsibility and individual criminal responsibility … Like genocide, the international crime of apartheid requires the presence of dolus specialis towards a particular group’ [which ICERD may not]. The questions put by UNGA to the Court ‘concern[ed] Israel’s “discriminatory legislation and measures” under international human rights law and not apartheid as an international crime.’
Judge Nolte also observed that ‘these two treaties [Apartheid Convention and Rome Statute] are of a different character than CERD, as they deal with the “crime of apartheid”, and thus the responsibility of individuals for apartheid, whereas Article 3 of CERD contains a prohibition of apartheid addressed to States.’ Nevertheless, the Opinion considered that the Apartheid Convention and Rome Statute ‘can inform the interpretation of Article 3 of CERD’.
This appears the right approach, but there is also an opportunity for CERD in Palestine v Israel to consider whether ICERD as a human rights instrument has a sui generis understanding of apartheid. Such an understanding would have to distinguish apartheid from its Article 3 sister term, racial segregation. Patrick Thornberry’s ICERD Commentary provides a gradated understanding of both terms, viewing racial segregation as ‘a concentrated form of discrimination through exclusion’, with apartheid representing ‘a further concentration’, displaying additional characteristics of domination integrated into a determinate public policy. Judge Nolte also considered that ‘[r]acial segregation is the broader term, apartheid being the gravest form of racial segregation’.
The Settlements as a Breach of Article 3
In Palestine v Israel, Palestine has submitted that Israel ‘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’. This appears to be supported in the ICJ AO which specifically links the settlements with a breach of Article 3 ICERD: ‘Israel’s legislation and measures impose and serve to maintain a near-complete separation…between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD’ [emphasis added]. Similarly, in 2013, the Independent International Fact-finding Mission of the UN Human Rights Council documented the many human rights violations that emanate from the settlements, describing ‘a system of total segregation between the settlers and the rest of the population living in the Occupied Palestinian Territory’ (here at para 103). The linking of illegal settlements with racial segregation and potentially apartheid, and the need to dismantle the settlements as a pre-condition to terminate this system, appears to be increasingly recognised.
Potential Litigation
The obligation of all States Parties to ICERD (of which there are 182) to ‘particularly condemn’ racial segregation and apartheid in the OPT could potentially be litigated before CERD and/or the ICJ. In its decision on Jurisdiction in Palestine v Israel, CERD noted that ‘the claims brought forward in the present inter-State communication pertain to the interests of all States Parties to the Convention.’ In Nicaragua v Germany currently before the ICJ, Nicaragua noted that ‘[b]oth Nicaragua and Germany are also parties to the CERD…in the case of racial discrimination as in the case of apartheid, States have a common interest in ensuring that these violations are brought to an end’.
Any State Party to ICERD that provides recognition, aid or assistance to the illegal situation, including settlements or settlement policy, would potentially be in breach of the Article 3 obligation to particularly condemn racial segregation or apartheid. A number of States Parties have reservations to ICERD’s compromissory clause (Article 22), such as the US. However, an inter-State communication in relation to the obligation of the US under Article 3 would remain possible before CERD, given the Article 11 inter-State communications mechanism is compulsory. There are 157 States Parties who do not have a reservation to Article 22, including all of Europe, which could potentially be brought before the ICJ for a violation of Article 3 if providing recognition, aid or assistance to the illegal situation.
Conclusion
The ICJ AO has held Israel to be in violation of Article 3 ICERD. Although it can be interpreted both ways as to whether this is a finding of apartheid, there should be no doubt as to its significance. It represents at a minimum a finding of racial segregation, and the fact that many judges did indeed view it as a finding of apartheid is of major import. As Judge Salam concluded, ‘Israel’s commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination, and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid.’
The immediate impact is how the decision may influence CERD’s pending decision in Palestine v Israel, and the Committee may well weigh the separate opinions as to what is meant by the Court’s finding. But the Committee, like the Court, might not reach a definitive finding on apartheid. CERD has, to date, taken the same approach as the Court’s AO – articulating a breach of Article 3 without individuating its elements. It remains to be seen if it will depart from this, although, as noted, Palestine’s communication has specifically requested that it make an individuated finding of apartheid.
The obligations of Article 3 apply to practices of racial segregation, or apartheid, or both. Article 3 addresses individual States Parties that engage in practices of this nature in territories under their jurisdiction, as well as all States Parties in the call to particularly condemn such practices. CERD has consistently interpreted the obligation to condemn as engaging diplomatic, economic, military and other relations, and opposable to every State Party. There is potential for the Article 3 obligations of all States Parties to ICERD to be further litigated if recognising the illegal situation or rendering aid or assistance in its maintenance, notably in the context of the settlement policy which is specifically linked to the breach of Article 3.
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