observations on israel’s response dated 14 january 2019

1

Observations on Israelrsquos Response dated 14 January 2019 relating to the

State of Palestinersquos Complaint under Article 11 CERD

PART I PRELIMINARY REMARKS

A Introduction

1 The present observations are supplied further to the Note dated 14 December 2018 of

the Secretariat of the United Nations (Office of the High Commissioner for Human

Rights) as well as the reply submitted by Israel the Occupying Power on 14 January

2019 relating to the interstate communication brought by the State of Palestine against

Israel under Article 11 of CERD

I Israelrsquos attempt to politicize the current proceedings

2 The State of Palestine has carefully analyzed Israelrsquos response and will subsequently

address the issues it raised in detail At the outset the State of Palestine cannot but note

with regret the political underpinnings of Israelrsquos reply that aim to obstruct any legal

discussion concerning its obligations as an Occupying Power in upholding the

provisions of CERD vis-agrave-vis the Palestinian people and the international community as

a whole Besides the State of Palestine also notes that Israel the Occupying Power

deliberately overlooked the Committeersquos explicit request to provide evidence for the

alleged exhaustion of local remedies in order to hinder the process of the complaint in

hand

3 In its reply Israel the Occupying Power did not address the core substance of the legal

argument at all Rather it argued in perpetuity that the mere assertion of bad faith on

the part of Israel the Occupying Power is anti-Semitic This extensive yet

unsubstantiated attack on the State of Palestine is legally misleading unwarranted and

outrageous There is absolutely nothing in the State of Palestinersquos legal argument to

provoke such a diatribe whose sole purpose is to deflect from legitimate legal arguments

by resorting to cynical political slander for the purpose of intimidation

4 The State of Palestine does not consider the current stage of proceedings to be meant to

deal with any unfounded and racist Israeli allegations of Palestinian violations of CERD

However it is important to note that there were no suggestions of anti-Semitism

whatsoever in the State of Palestinersquos submission Rather all legal arguments and facts

2

presented were solely directed at the discriminatory and illegal policies and practices of

the government of Israel the Occupying Power Notably the State of Palestinersquos

arguments as to the bad faith by Israel - on the substance of which the State of Palestine

will revert back later in more detail - constituted a purely legal argument rooted in legal

principles and expressed in legal language pertaining to Statehood and the ongoing

illegal occupation of the territory of the State of Palestine by Israel the Occupying Power

1

5 The State of Palestine has however noted with interest that as part of these unfounded

political allegations Israel has inter alia also accused the State of Palestine of a

rdquo(hellip) gross violation (hellip) of the norms embodied in the Convention on the

Elimination of all forms of Racial Discriminationrdquo2

This seems to imply that even in Israelrsquos own view the State of Palestine is in a position

to violate the Convention vis-agrave-vis Israel which in turn to state the obvious also

presupposes that even from Israelrsquos own perspective the State of Palestine must be a

contracting party thereof and in a treaty relationship with Israel and thus its actions can

be measured against the obligations of State parties

6 Within its obligations as a State Party of CERD the State of Palestine however stands

ready to fully engage with the substance of those unfounded allegations at any time

should Israel the Occupying Power exercise its right to bring an interstate complaint

against the State of Palestine under Article 11 CERD either by way of a counter-claim or

by way of a separate complaint

7 The State of Palestine also notes once again with regret Israelrsquos attempts to threaten the

Committee by considering the complaint lodged by the State of Palestine and the legal

arguments therein would in its view

ldquo(hellip) undermine [the Committeersquos] status as an independent and impartial

institution and ultimately harm efforts to enhance compliance with the

Conventionrdquo3

1 Comments on Israelrsquos Note relating to the State of Palestinersquos complaint under Article11 CERD (30 August 2018)

p 21 [hereinafter State of Palestinersquos comments] 2 Note of the Permanent Mission of Israel to the United Nations in Geneva to the Secretariat of the United Nations (14

January 2019) p18 [hereinafter Israelrsquos observations] 3 Israelrsquos observations p 3

3

8 The State of Palestine believes that this attempt by Israel the Occupying Power to

intimidate the Committee speaks for itself The aggressive language used against the

Committee must be condemned and addressed as it reflects an objectionable attitude of

disdain and disrespect for those mechanisms

9 However Israelrsquos attempt at intimidating the Committee was regrettably predictable Its

vicious practice against all international organizations andor mechanisms that recognize

the Palestinian peoplersquos human rights or censure the systematic violations of those rights

by Israel the Occupying Power is well documented In fact Israel the Occupying

Power has attacked the UN Human Rights Council United Nations Educational

Scientific and Cultural Organization (lsquoUNESCOrsquo) the International Court of Justice

(lsquoICJrsquo) the UN General Assembly and other international bodies for respecting and

upholding the rights of the Palestinian people Nothing more aggressive than Israeli

allegations against UNESCO when it described it as

ldquo(hellip) a body of lies biases (hellip) Israel will not be a member of an organization that

is trying to rewrite history and accept to be exploited by our enemiesrdquo4

The same holds true for its attacks against the ICJ following its 2004 Advisory Opinion on

the Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory5

ldquo() after all the rancor dies this resolution will find its place in the garbage can

of historyrdquo6

10 Israelrsquos refusal to engage in a legal discussion concerning the rights of the Palestinian

people to remedy and its denial of the applicability of human rights in the occupied

territory of the State of Palestine is inherently discriminatory It also further proves

Israelrsquos derelict efforts and bad faith in fulfilling its obligations as an Occupying Power

thus reflecting the endemic racist attitude against the Palestinian people which negates

4 Middle East Monito Israelrsquos Ambassador attacks UNESCO after adoption of resolutions in favour of Palestine (12

October 2018) available at httpswwwmiddleeastmonitorcom20181012-israels-ambassador-attacks-unesco-after-

adoption-of-resolutions-in-favour-of-palestine 5 ICJ Case Concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Advisory Opinion ICJ Rep 2004 6 Haaretz Israel Firmly Rejects ICJ Fence Ruling (11 July 2004) available at httpswwwhaaretzcom14754360

4

their natural political social and economic human rights which in turn have led to the

complaint at hand

11 The State of Palestine believes that the Committee should fulfill its duties in an unbiased

and independent manner as being the custodian of the substantive guarantees of CERD

and in light of the overall goal of the Convention to eliminate all forms of racial

discrimination around the world This goal extends to the Palestinian people who as

has already been confirmed by the Committee are victims of Israelrsquos systematic

discriminatory policies7

12 The State of Palestine also notes that the Committee is called upon to apply the

provisions of the CERD Accordingly the claim brought forward by Israel the

Occupying Power that any decision by the Committee confirming its jurisdiction would

necessarily have lsquobroad implicationsrsquo is further proof of Israelrsquos objectionable attempt at

intimidation Conversely the State of Palestine believes that the Committeersquos

examination and decision on this complaint will have far-reaching positive consequences

that reinforce the standing and relevance of the CERD 8

13 The State of Palestine reiterates that CERD reflects elementary principles of humanity

and believes that the present dispute must be resolved in line with international law

including in particular the rights and obligations stipulated in CERD

14 Finally it is worth noting that it takes Israel the Occupying Power 22 densely-written

pages to try to counter what at the same time Israel seems fit to qualify on several

occasions as being a non-complicated9 and non-controversial issue10 which does not

require much elaboration11 This contradiction itself is once more telling

7 United Nations Committee on the Elimination of Racial Discrimination Concluding Observations UN Doc

CERDCISRCO14-16 (3 April 2012) p 6 para 24 8 Israelrsquos observations p 2 fn 4 9 Ibid p 22 10 Ibid p 1 and 22 11Ibid p 1

5

B Scope of the current stage of the proceedings

15 In its decision during the Committeersquos 97th session communicated to the two State

Parties ie Israel and the State of Palestine on 14 December 2018 the CERD Committee

requested Israel the Occupying Power to

ldquo(hellip) supply any relevant information on issues of jurisdiction of the Committee

or admissibility of the communication including the exhaustion of all available

domestic remediesrdquo12

16 Instead Israel the Occupying Power misleadingly alleged its readiness to discuss the

issues raised in the complaint in its national report despite the fact that Israel has

repeatedly and consistently refused to discuss its violations and practices of CERD taking

place in the occupied territory of the State of Palestine alleging that CERD is not

applicable to that territory13

17 This further demonstrates the lengths to which Israel the Occupying Power is willing

to reach in order to distort the interpretation of CERD and the rights it affords in order

to falsely claim that the Palestinian people are excluded from the applicability of the

CERD

18 Nonetheless the State of Palestine will address the issues raised by Israel the Occupying

Power in its above-mentioned Note in addition to arguing the issue of local remedies It

should be understood however that the taking of position by the State of Palestine as

to the exhaustion of local remedies is done without prejudice as to the burden of proof

in this regard

19 The State of Palestine also understands and expects that subsequent to the oral

hearing and in line with its own decision during its 97th session the CERD Committee

will then take an all-embracing decision on its jurisdiction and on the admissibility of the

complaint brought by the State of Palestine including the issue of local remedies

12 Secretariat of the United Nations (Office of the High Commissioner for Human Rights) Note to the Permanent

Mission of the State of Palestine to the United Nations Office at Geneva ICERD-ISC 20183 (14 December 2018)

p 1 emphasis added 13 See inter alia United Nations Committee on the Elimination of Racial Discrimination Concluding Observations

UN Doc CERDCISRCO14-16 (3 April 2012) p 2 para 10

6

PART II TREATY RELATIONS BETWEEN THE STATE OF PALESTINE AND ISRAEL

A Issue of res judicata

20 Israel the Occupying Power has taken issue with the argument advanced by the

State of Palestine in its previous Note dated 30 August 2018 as to why the issue of the

Committeersquos jurisdiction has already been be it only implicitly positively decided by the

Committee in its decision of 4 May 2018 adopted during its 2634th meeting subject only

to the remaining issue of the necessary exhaustion of local remedies Israel the

Occupying Power has not however provided any substantive argument in that regard

Rather it limits itself to state that the position taken by the State of Palestine is

ldquo(hellip) founded on a misreading of the Convention and its Rules of Procedurerdquo14

without providing any reasoning as to this alleged lsquomisreadingrsquo

21 The Sate of Palestine therefore sees that there is no need to come back to the issue

and simply reiterates that its position is confirmed not only by the Committeersquos own

decision but also as previously shown and explained in detail by the very wording of

Article 11 para 3 of CERD15 and the Committeersquos own Rules of Procedure16

22 Adding to that in its reply Israel the Occupying Power challenges the State of

Palestinersquos reliance on the judgment of the ICJ in the Bosnian Genocide case which

confirmed as will be recalled that even judicial decisions on jurisdiction possess a res

judicata effect17 In particular Israel the Occupying Power claims that in the Bosnian

Genocide case before the ICJ the parties had allegedly in contrast to the current

proceedings been

ldquo(hellip) afforded ample opportunity to submit their position on the matterrdquo18

14 Israelrsquos observations p3 fn 5 15 State of Palestinersquos comments p 24 16 Ibid p3 17 Ibid p 6 18 Israelrsquos observations p 3 fn 5

7

That however misses the point for two reasons

First both parties have now had the chance to argue the question as to whether the

Committeersquos decision of May 4th 2018 did amount to res judicata or not and Israel

deliberately decided not to engage in the debate with the arguments presented by the

State of Palestine

Second the Court in the Bosnian Genocide case found that the parties

had not previously argued the relevant jurisdictional issue Despite this lack of exchange

of arguments by the parties on the issue it nevertheless confirmed that its 1996 decision

did possess a res judicata effect as to this specific issue Accordingly the Court found that

ldquo(hellip) even if the question has not been raised by the parties (hellip)rdquo19

such question must be considered to have been implicitly decided 20 Given that the

CERD Committee must be assumed to have considered the jurisdictional preconditions

for any further procedural step to be taken proprio motu before transferring the Palestinian

communication to Israel it thus finds itself in exactly the same situation as the ICJ had

found itself in the Bosnian Genocide case in 2007 Therefore just like in the case at hand

the relevant issue had in 1996 not been discussed by the parties but the Court

nevertheless found that it had already implicitly decided the matter Accordingly the

Court found that the jurisdictional issue had become res judicata The same principle

ought to apply in the case at hand

23 In this context the State of Palestine notes that Israelrsquos reference to the current case

before the ICJ recently brought by the State of Palestine against the United States of

America is misplaced and misleading21

24 Israel the Occupying Power makes the point that the ICJ in that case had

requested both Parties to address issues of jurisdiction first22It ought to be noted

however that the Court had proceeded in this very manner in several cases before

19Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina

v Serbia and Montenegro) Judgment ICJ Reports 2007 p 43 et seq paras 114 et seq emphasis added 20 Ibid 21 ICJ Case Concerning the Relocation of the United States Embassy to Jerusalem (State of Palestine v United States

of America) 2018 see Israelrsquos observations p 3 fn 4 22 Israelrsquos observations p 2-3 fn 4

8

including inter alia in the case brought by Nicaragua against the United States in 1984 In

that case the Court had accordingly decided ndash just like in the case presently brought by

the State of Palestine against the United States that

ldquo(hellip) the written proceedings shall first be addressed to the questions of the

jurisdiction of the Court to entertain the dispute and of the admissibility of the

Applicationrdquo23

In that regard it might be also worth recalling that in that former case the Court later

found that it had jurisdiction and that the case was admissible eventually ruling in favor

of Nicaragua 24

25 In the current case before the ICJ the United States attempted to make a claim

similar to that made by Israel the Occupying Power in the proceedings before the

Committee The United States claimed that

ldquo(hellip) no treaty relations exist between the United States and the Applicant [ie the

State of Palestine] (hellip)rdquo25

In its communication with the ICJ the United States then argued that in its view it is

therefore

rdquo(hellip) manifest that the Court has no jurisdiction in respect of the

Applicationrdquo26

The United States then further continued that in its view keeping the Application

submitted by the State of Palestine on the Courtrsquos General List

ldquo(hellip) would be permitting an abuse of process (hellip)rdquo27

23 ICJ Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States

of America) Provisional Measures Order ICJ Rep 1984 p 22 24 ICJ Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States

of America) Jurisdiction and Admissibility Judgment ICJ Reports 1984 p 14 25 Letter US Department of State to the Registrar of the ICJ dated 2 November 2018 p 2 26 Ibid emphasis added 27 Ibid

9

given that

ldquo(hellip) consent to the Courtrsquos jurisdiction is manifestly lackingrdquo28

26 Yet contrary to that request made by the United States the Court instead decided

to keep the case on its docket and continue with the proceedings The Court thereby by

the same token denied the existence of the alleged lsquoabuse of processrsquo and of a lsquomanifest

lack of jurisdictionrsquo thus refuting these unfounded claims

B Palestinian Statehood

27 Israel the Occupying Power devotes a significant part of its reply to the issue of

Palestinian statehood 29 Despite its manifold inaccuracies the State of Palestine finds it

not necessary to engage with this attempt Palestinian statehood has been settled and

reaffirmed repeatedly inter alia by the State of Palestinersquos membership in international

organizations including in UNESCO the International Criminal Court (lsquoICCrsquo) and

others As such the State of Palestine will not engage in debating this very point

28 In relation to CERD and in order to restate the obvious however the State of

Palestine points to the simple fact that the CERD Committee itself has settled the matter

for both the purpose of CERD generally but also for the purpose of the current

proceedings more specifically Further the State of Palestine reminds that Article 18 para

1 CERD provides that the Convention is open for accession by

ldquo(hellip) any State referred to in article 17 paragraph 1 of the Conventionrdquo30

Besides Article 9 CERD obliges States Parties to submit regular reports as to the

implementation of CERD 31 of which the State of Palestine is included

29 In line with these provisions the Committee has since the State of Palestine

submitted its instrument of accession consistently treated the State of Palestine as being

a lsquoState Partyrsquo of CERD It has not only requested the State of Palestine to submit a report

28 Ibid 29 Israelrsquos observations p13 14 and 15 30 Emphasis added 31 Emphasis added

10

under Article 9 CERD which the State of Palestine has submitted on 21 March 201832 but

it has by now also scheduled a date for its constructive dialogue with the State of

Palestine to take place under Article 9 CERD during the 99th session

30 In addition is that the Committee has consistently referred to the State of Palestine

as a lsquoState Partyrsquo of CERD for purposes of the State reporting procedure under Article 9

CERD33 as well as more specifically for purposes of the current proceedings Inter alia

in its latest decision taken during its 97th session with regard to the proceedings between

Israel the Occupying Power and the State of Palestine the Committee referred to

possible comments by ldquothe States concernedrdquo34invited ldquothe States parties concernedrdquo35 to

appoint a representative for the envisaged oral hearing and respectively invited such

representative to present the views ldquoof the State party concernedrdquo36

31 Given this abundant and consistent practice by the Committee itself the State of

Palestine considers Israelrsquos argument to be without any legal foundation whatsoever

C Israelrsquos alleged continued claim to be willing to address the matter in other fora

32 In its recent reply Israel the Occupying Power continues to argue that the dispute

could be addressed in other appropriate fora Now that the Committee has determined

in its recent decision adopted during its 97th session that

ldquo(hellip) the matter has not been adjusted to the satisfaction of both parties (hellip)rdquo37

33 The State of Palestine fails to see any legal relevance to this continued claim made

by Israel therefore it will be brief in that regard while at the same time reiterating its

prior comments on the matter

32 Initial and second periodic reports submitted by the State of Palestine under article 9 of the Convention (21 March

2018) CERDCPSE1-2 33 Office of the High Commissioner of Human Rights States Parties reports available at

httpstbinternetohchrorg_layoutstreatybodyexternalTBSearchaspxLang=enampTreatyID=6ampDocTypeID=29 34 Secretariat of the United Nations (Office of the High Commissioner for Human Rights) Note to the Permanent


p 2 para 4 emphasis added 35 Ibid para 5 emphasis added 36 Ibid para 7 emphasis added 37 Ibid p 1 preamble para 5

11

34 First contrary to the position taken by the Committee the ICJ and almost all State

Parties of CERD Israel the Occupying Power continues to deny the applicability of

CERD in the occupied territory of the State of Palestine and has proven that it is not

willing to engage in any meaningful dialogue with the State of Palestine as to its

observance of its CERD obligations vis-agrave-vis the Palestinian people

35 Israel the Occupying Power continues to take the

ldquo(hellip) position that the Convention does not apply beyond national bordersrdquo38

In fact Israelrsquos latest report to the Committee of March 201739 does not contain any

information whatsoever as to the implementation of CERD within the occupied territory

of the State of Palestine except as far as occupied East Jerusalem is concerned (which

Israel has purported to annex in violation of international law) Hence even for purposes

of the State reporting procedure under Article 9 CERD Israel is not acting bona fide As a

matter of fact it was the Committee that deplored time and again Israelrsquos unwillingness

to report to the Committee on the occupied territory of the State of Palestine40

36 Third while Palestine fully acknowledges the important role of the State reporting

procedure under Article 9 CERD it respectfully submits that even a most stringent and

careful analysis of Israelrsquos report under Article 9 CERD cannot replace the more elaborate

and adversarial procedure foreseen in Article 11-13 CERD Besides it is only the

interstate procedure under Articles 11-13 CERD that provides the State of Palestine as

the State most concerned by Israelrsquos violations of CERD taking place on Palestinian

territory with an opportunity to provide the Committee with its view and the available

evidence

37 Fourth The object and purpose of the complaint by the State of Palestine under

Article 11 CERD relates to a widespread and systematic system of racial discrimination

and segregation inherent in the Israeli settlement project which cannot be remedied by

minor or cosmetic changes as those referred to in the latest Israeli communication41

38 Israelrsquos observations p 19 39 Consideration of reports submitted by States parties under article 9 of the Convention (2 March 2017)

CERDCISR17-19 40 See inter alia United Nations Committee on the Elimination of Racial Discrimination Concluding Observations

UN Doc CERDCISRCO14-16 (3 April 2012) p2 para 10 41 Israelrsquos observations p 20

12

Rather those systematic violations of CERD require the Committee and eventually the

ad hoc Commission to undertake a holistic review of the situation in the occupied

territory of the State of Palestine and then recommend far-reaching remedies

38 On the whole therefore the State of Palestine respectfully submits that while

Israelrsquos claim that it is willing to address the matter in other fora is legally irrelevant it is

also divorced from the prevailing legal and factual situation

D Israelrsquos continuous claim that it could exclude a treaty relationship with the State of

Palestine concerning CERD

I General remarks

39 Israel the Occupying Power is trying to undercut the character of the CERD and reduce

the obligations arising under CERD to a mere network of bilateral obligations whereby

a State party such as Israel could freely decide to abide by the obligations contained in

CERD vis-agrave-vis some contracting parties but not vis-agrave-vis one specific State party the

population of which is subject to its belligerent occupation Such an approach is

incompatible with the jus cogens and erga omnes character of CERD

40 At the outset it is worth noting that the provisions of the CERD are jus cogens

norms from which no derogation is allowed Further it is important to remind the

Committee that the applicability of the CERD provisions does not depend on formal

bonds or legal relations but its primary purpose is to ensure individual rights 42As such

Israelrsquos refusal to recognize the applicability of CERD to the occupied territory of the

State of Palestine as well as its claim of a lack of a contractual bond with Palestine are

legally and practically inconsequential

41 Further in considering the issue as to whether or not Israel the Occupying Power

could exclude a treaty relationship with the State of Palestine once the State of Palestine

validly acceded to CERD it is important to also take into account that obligations

contained in CERD are of an erga omnes partes character ie are obligations towards all

other contracting parties As such and irrespective of Israelrsquos arguments the Committee

42 International Criminal Tribunal for Former Yugoslavia Prosecutor v Tadic Judgment IT-94-1-A (15 July 1999)

para 168

13

has a responsibility to ensure universal respect for the erga omnes rights enshrined in the

CERD

42 Put otherwise Israel the Occupying Power accepts that it is obliged to abide by

CERD vis-agrave-vis all other State parties of CERD except for its relation with the State of

Palestine Even with regard to those other States it continues to argue however that it

is not bound by CERD when it comes to violations of CERD committed on the territory

of the State of Palestine given that contrary to the position of the Committee in its view

CERD does not possess an extraterritorial effect

43 The aim of Israelrsquos argument therefore is to free itself of any human rights

obligations arising under CERD in relation to the population of the State of Palestine It

is this overarching aim of Israelrsquos arguments that the Committee should keep in mind

when interpreting CERD in line with its object and purpose

II Israelrsquos line of argument

44 Israelrsquos argument continues to be that there exists a rule of customary law that

entitles State Parties to a multilateral treaty to by way of a unilateral declaration exclude

entering into a treaty relationship with another State that has validly become a State party

of the same multilateral treaty even where the other State party [ie in the case at hand

the State of Palestine] objects to this attempt

45 Israel further argues that this alleged rule of customary law also applies in the case

of multilateral treaties such as CERD that are of an erga omnes and jus cogens character

This is despite the fact that CERD contains the so-called Vienna formula explicitly

providing for the right of any member of a specialized agency of the United Nations to

accede to the treaty

46 Accordingly given this line of argument it is not sufficient for Israel to prove that

a general rule of customary law exists enabling States to object to other States acceding

to a multilateral treaty and thereby excluding a bilateral treaty relationship even where

the other State [ie in the case at hand the State of Palestine] has rejected such purported

objection

14

47 Rather Israel the Occupying Power has to prove that there exists sufficient State

practice that specifically addresses the very scenario at hand ie that relates to

multilateral treaties possessing the same specific characteristics as CERD Further Israel

also has to prove that such State practice is fully supported by the necessary respective

opinio juris As will subsequently be shown Israel also fails to do so

48 Even if Israelrsquos general line of argument were to be accepted in relation to human

rights treaties such as CERD containing norms of an erga omnes and jus cogens character

Israel is for several additional reasons barred from making this argument in light of the

specific situation existing between Israel the Occupying Power and the State of

Palestine

III Israelrsquos lack of new arguments

49 The State of Palestine notes at the outset that Israel the Occupying Power has not

adduced any further evidence confirming the above-described alleged rule of customary

law it relies on

50 Even within the group of State parties of CERD that has not yet recognized the

State of Palestine the vast majority did not enter the same kind of lsquoobjectionrsquo Israel has

submitted to the depositary As a matter of fact apart from Israel only two out of the

other 177 State parties of CERD have lodged identical objections to the one lodged by

Israel 43 Again mutatis mutandis the same situation prevails as far as the other universal

human treaties concluded under the auspices of the UN are concerned Yet if Israelrsquos

position was reflective of customary law and would apply to treaties such as CERD

being of an erga omnes and jus cogens character one would expect many more such

declarations to have been made by those States that have not yet recognized the State of

Palestine

51 This lack of relevant State practice therefore puts into question Israelrsquos claim as to

the existence of the alleged rule of customary international law Further Israel is

43 United Nations Depositary Notifications CN2582014TREATIES-IV2 (13 May 2014) available at

httptreatiesunorgdocPublicationCN2014CN2582014-Engpdf) CN2652014TREATIES-IV2 (14 May

2014) available at httptreatiesunorgdocPublicationCN2014CN2652014-Engpdf

CN2932014TREATIES-IV2 (16 May 2014) available at

httptreatiesunorgdocPublicationCN2014CN2932014-Engpdf

15

inconsistent as is evident from its own behavior in a situation that was strikingly similar

to the case at hand

52 As the Committee will recall in 1982 Namibia which at that time was still subject

to illegal occupation by South Africa acceded to CERD44 It did so represented by the

UN Council for Namibia created by the General Assembly as the de jure representation

of Namibia Notwithstanding the lack of effective control and despite the lack of official

recognition by Israel the UN Council for Namibia as representative of Namibia was

able to accede to CERD on its behalf while Israel did not object to Namibia becoming a

contracting party of CERD and as such entering into treaty relations with Israel

53 Israel the Occupying Power also once again tried to rely on the work of the

International Law Commission (lsquoILCrsquo) on the law of reservations claiming that the ILC

in its project on reservations had accepted the legal effect of such rsquoobjectionsrsquo 45 On a

different occasion in the same text however Israel takes the position that unilateral

declarations related to issues of recognition made in the context of a multilateral treaty

are not covered by the ILCrsquos work on reservation and that hence no conclusion may be

drawn from the ILCrsquos work on reservation as to such lsquoobjectionsrsquo46 The State of Palestine

respectfully submits that Israel cannot have it both ways In this regard the State of

Palestine notes that the ILC did not to include any references to this issue which was

controversial within the ILC in its Guidelines on Reservations which confirms that the

ILC did not want to address the matter as part of its overall project

54 On the whole therefore Israel has not shouldered the burden of proof as to the

existence of the aforementioned rule of customary law This is further confirmed by

Israelrsquos misplaced interpretation of the Vienna formula

IV Interpretation and relevance of the Vienna formula

55 Israel attempts to discredit the legal relevance of the Vienna formula as contained

in Article 17 para 1 CERD which as the Committee will recall enables all members of

44 United Nations Treaty Collection International Convention on the Elimination of All Forms of Racial

Discrimination Namibia accession to ICERD on 11 November 1982 available at

httpstreatiesunorgpagesViewDetailsaspxsrc=INDampmtdsg_no=IV-2ampchapter=4amplang=en13 45 Israelrsquos observations p 5 46 Israelrsquos observations p 12 fn 36

16

specialized agencies of the United Nations to become full-fledged members of

multilateral treaties containing this lsquoVienna formularsquo Israel states that in order for

Article 17 para 1 CERD to apply an lsquoentityrsquo must not only be a member of a specialized

agency but that it must be a State member of such an agency47

56 There is no need for the State of Palestine to enter into this debate as to the

interpretation of Article 17 para 1 CERD This is due to the fact that the State of Palestine

is a lsquoState memberrsquo of a UN specialized agency namely of UNESCO This is confirmed

by the fact that under Article II para 2 of the UNESCO Constitution

ldquo(hellip) States not Members of the United Nations Organization may be admitted to

membership of the Organization [ie UNESCO] upon recommendation of the

Executive Board by a two thirds majority vote of the General Conference [of

UNESCO]rdquo48

57 Accordingly when Palestine was admitted to UNESCO in 2011 ie at a time when

Israel the Occupying Power was still a member of UNESCO and had thus still accepted

the competence of UNESCOrsquos General Conference to determine by a 23 majority vote

who is a State and can thus in that capacity be admitted to the organization UNESCO

made a determination that Palestine is a State member of a specialized agency of the

United Nations a determination that was legally binding upon Israel as a member

58 In turn Article 17 para 1 in conjunction with Article 18 para 1 CERD provide

that any such State member of a UN specialized agency may then accede to CERD

without limiting the legal effects of any such accession in any manner to certain

contracting parties of CERD This is confirmed as previously shown by the State of

Palestine 49 by the drafting history of Article 17 CERD

59 Israel the Occupying Power further attempts to downplay the relevance of the

lsquoVienna formularsquo by referring to the practice of the UN Secretary General in his function

as depositary 50 It ought to be noted however that while such depositary practice is not

legally binding upon State Parties to a given treaty it is indicative of the considered

position of the Secretary General which lsquoentitiesrsquo are in his view to be considered States

47 Israelrsquos observations p 9 - 10 fn 29 48 Emphasis added 49 State of Palestinersquos comments p 13 50 Israelrsquos observations p 6

17

members of a specialized agency of the United Nations What Israel further omits to

mention is the authoritative lsquoFinal Clauses of Multilateral Treaties Handbookrsquo of the UN

published by the Secretary General in his role of advising States as to issue of multilateral

treaty-making In the said publication he confirmed that the whole purpose of the

Vienna Formula is

ldquo(hellip) to identify in detail the entities eligible to participate in a treatyrdquo

and that accordingly the lsquoVienna formularsquo

ldquo(hellip) permits participation in a treaty by (hellip) States Members of specialized

agencies (hellip)rdquo51

60 Again there is no reference in this statement that any such participation would be

limited to specific bilateral treaty relationships Put otherwise Israel attempts to empty

the Vienna formula of most if not all of its relevance in a situation where the protection

provided by a given treaty ie in the case at hand CERD is most needed Such

interpretation runs foul however of the very object and purpose of CERD

61 If the argument advanced by Israel were solid State parties to a multilateral

treaty even ones containing the Vienna formula could unilaterally lsquoexcludersquo a given

State explicitly entitled to accede to such treaty as being a number of a UN specialized

agency from exercising rights arising thereunder Such exclusionary effect is

incompatible with the very object and purpose of the Vienna Formula

V Relevance of the practice under the 1961 Convention abolishing the Requirement

of Legalization for Foreign Public Documents (lsquoApostille Conventionrsquo)

62 In its first round of comments the State of Palestine had highlighted the fact that

a significant part of the State practice Israel had referred to as alleged proof of its thesis

was related to the 1961 Hague Apostille Convention Apart from being of a significantly

different character than CERD this treaty contains in its Article 12 a specific treaty-based

provision which enables State Parties thereof to exclude treaty relations with another

contracting party

51 United Nations Final Clauses of Multilateral Treaties Handbook (2003) p 15 available at

httpstreatiesunorgdocsourcepublicationsFCEnglishpdf

18

63 More than a dozen State Parties have made specific reference to Article 12

Apostille Convention when objecting to Kosovorsquos purported accession to the said treaty

including Argentina Belarus Cyprus Georgia Greece India Mexico Moldova

Nicaragua Peru Romania Slovakia and Venezuela Obviously such references to

Article 12 Apostille Convention would have been redundant if Israelrsquos interpretation of

the Apostille Convention were correct ie if Article 12 was indeed limited to refer to

other not recognition-related reasons for objecting to another State joining the Apostille

Convention

64 In that regard it is particularly telling how the Dutch Government in its Note

Verbale no 2015660990 of 2 December 2015 addressed to the Republic of Serbia had

treated a Note Verbale of 6 November 2015 emanating from Serbia In said note Serbia

had raised an objection to the accession of Kosovo to the Apostille Convention without

specifically mentioning Article 12 Apostille Convention The Dutch government

nevertheless treated the said objection as an objection made in accordance with Article

12 para 2 of the Apostille Convention This confirms that it was the position of the

Netherlands that even where a State party of the Apostille Convention does not

recognize another State as such (which is the case as far as Serbia vis-agrave-vis Kosovo is

concerned) and where the former State wants to exclude treaty relations for this very

reason it has to rely either explicitly or implicitly on the specific provision of said treaty

ie in the case at hand on Article 12 para 2 Apostille Convention Contrary to the claim

made by Israel 52 the fact that a certain number of States in objecting to Kosovorsquos

accession to the 1961 Apostille Convention have not expressis verbis referred to Article 12

thereof is therefore irrelevant

65 Israel also tried to rely on an online lsquoPractical Guidersquo on the Apostille Convention

to support its interpretation of the Apostille Convention53 Apart from this document

lacking any official status it does not support the claim presented by Israel the

Occupying Power In particular para 63 of this document does not limit the scope of

application contrary to what Israel argues of Article 12 of the treaty to

ldquo(hellip)concerns about a lack of national competence with regard to authentication

of public documentsrdquo54

52 Israelrsquos observations p 7 53 Ibid p 7 54 Ibid

19

66 Rather the relevant para 63 of the document states that Article 12 Apostille

Convention is an all-encompassing clause since under the provisionldquo(hellip) [a] State does

not need to provide reasons to support an objection [to accession by another State]rdquo55

67 The same holds true for the official Explanatory Report56 which unlike the

lsquoPractical Guidersquo mentioned by Israel forms part of the official travaux preacuteparatoires of the

Apostille Convention and which again generally refers to objections to accession by

other States on the basis of Article 12 para 2 Apostille Convention rather than on the

basis of an alleged generalized norm of customary international law

68 On the whole therefore both the text as well as the practice under the Apostille

Convention clearly confirm that in order for a State Party to unilaterally exclude treaty

relations with another State a specific authorization contained in the treaty concerned is

required Accordingly any practice listed by Israel the Occupying Power and referring

to the Apostille Convention cannot serve as evidence for the alleged norm of customary

international law In fact these examples prove the contrary

VI Lack of opinio juris as to objections to accession by other States

69 Israelrsquos reply is also unconvincing due to the absence of any persuasive argument

in relation to the lack of opinio juris which must accompany the creation of any rule of

customary law57 The State of Palestine had shown that Israel the Occupying Power had

in the past referred to unilateral objections aiming at excluding bilateral treaty relations

in a multilateral treaty system as merely being of a lsquopolitical characterrsquo and thus not

being able to provide for the effect Israel now claims its own objection to the Palestinian

accession to CERD purportedly has58

70 Israel the Occupying Power has thereby denied that any such statements even if

one were to accept arguendo that those were instances of relevant State practice were

55 Ibid p 7 fn 20 56 HCCH Explanatory Report on the Hague Convention of 5 October 1961 Abolishing the Requirement of

Legalisation for Foreign Public Documents(1961) available at httpswwwhcchnetenpublications-and-

studiesdetails4pid=52 57 State of Palestinersquos comments p7 58 State of Palestinersquos comments p9

20

accompanied by the necessary second element to form a rule of customary law namely

opinio juris Instead it simply now postulates without providing any further argument

that ldquothere is no reason to presumerdquo that such practice is ldquonot supported by opinio jurisrdquo59

71 Yet this is not a matter of lsquopresumptionrsquo Rather the burden to prove the existence

of both elements of customary law and thus also to prove the existence of relevant opinio

juris is on the State invoking the customary rule in question Israel the Occupying

Power has however failed to shoulder that burden

72 Rather as shown Israelrsquos own practice contradicts this position Israel has in the

past consistently portrayed unilateral declarations purporting to exclude bilateral treaty

relations as being only political in nature (and thus as not being accompanied by the

necessary opinio juris) Israel now attempts to avoid this obvious interpretation of its own

behavior It argues that by way of reaction to such claims of a lack of treaty relations it

had indicated that it would apply a principle of reciprocity Israel thereby claims that in

so doing it had accepted the legal effect of communications as to the exclusion of treaty

relations60

73 This however clearly misses the point Two States can agree that a given

multilateral treaty does not apply to their bilateral relations In this case State A party

to a multilateral treaty would demonstrate that in its understanding the said treaty does

not apply in its relations with State B and State B would then react by stating that it will

act in the very same manner vis-agrave-vis State A This is the situation Israel had referred to

in its observations when it stated that in such a situation Israel had indicated that it

would apply a principle of reciprocity61 Put otherwise in that scenario it was the mutual

agreement to not apply the treaty that brought about its non-applicability rather than

the unilateral political declaration devoid in Israelrsquos own view then taken of opinio juris

At the same time the situation at hand between Israel the Occupying Power and the

State of Palestine is fundamentally different since as previously shown the State of

Palestine had unequivocally objected to the Israeli declaration purporting to preclude

treaty relations between the two States62

59 Israelrsquos observations p 4 fn 8 60 Israelrsquos observations p 8 61 Ibid 62United Nations Depositary Notification CN3542014TREATIES-IV2 (12 June 2014) available at

httptreatiesunorgdocPublicationCN2014CN3542014-Engpdf))

21

74 Finally Israelrsquos lsquoobjectionrsquo is also invalid and thus irrelevant to the functioning of

the Committee

VII Impermissible character of Israelrsquos lsquoobjectionrsquo

75 In its original communication the State of Palestine pointed to the undisputed fact

that Israel has not entered a reservation to the Article 11 CERD procedure63 However in

its Note of 3 August 2018 Israel the Occupying Power stated that

ldquo(hellip) the absence of treaty relations between Israel and the Palestinian entity is

legally indistinguishable in its effect from a reservation to Article 11 in as much as

both would exclude the applicability of the Article 11 mechanism in relations

between Israel and the Palestinian entityrdquo64

76 In its latest Note of January 14 2019 Israel the Occupying Power seems to retract

from that statement by claiming that Palestine has misrepresented Israelrsquos statement 65

and that in any event even if Israelrsquos lsquoobjectionrsquo were to be considered as being subject

mutatis mutandis to the same legal regime as a reservation it would nevertheless be valid

66 This once again warrants several remarks

77 Israel had unequivocally stated that the lsquolegal effectsrsquo of its objection are

indistinguishable from a reservation to Article 11 [CERD]67Yet any such legal effects are

subject to certain conditions namely the compatibility of any such reservation with

CERD Thus the legal effects of Israelrsquos objection are as per Israelrsquos expressed view also

subject to the same limitations

78 Moreover Israel claims that even if one were to apply mutatis mutandis the same

legal regime to its objection as it applies to reservations it would still be valid in light of

Article 20 CERD given that the lack of reactions by more than two thirds of the CERD

63 State of Palestinersquos comments p 17 64Note of the Permanent Mission of Israel to the United Nations in Geneva to Secretary-General of the United Nations

regarding the decision adopted by the Committee on the Elimination of Racial Discrimination of 04 May 2018(03

August 2018) p 6 emphasis added 65 Israelrsquos observations p 12 66 Ibid 67 Ibidp 12

22

contracting parties to its objection Further Israel has not taken into account the

jurisprudence of the ICJ namely the Courtrsquos 2006 Judgment in the Case concerning

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v

Rwanda)68

79 In the said case the Court first considered a reservation concerning the Genocide

Convention and had found in paras 66 - 68 of its judgment that the Court was in a

position to decide whether or not a given reservation was compatible with the object and

purpose of the Genocide Convention When then turning to CERD after noting that the

general requirement of objections by more than two thirds of the State Parties to

Rwandarsquos reservation was not fulfilled the Court nevertheless continued that this

finding is

ldquo(hellip) [w]ithout prejudice to the applicability mutatis mutandis to Rwandarsquos

reservation to Article 22 of the Convention on Racial Discrimination of the Courtrsquos

reasoning and conclusions in respect of Rwandarsquos reservation to Article IX of the

Genocide Convention (see paragraphs 66-68 above) (hellip)rdquo69

80 Put otherwise the ICJ reserved for itself notwithstanding Article 20 CERD the

competence to decide whether a given reservation to CERD is compatible with its object

and purpose or respectively in the case at hand whether it inhibits the operation of the

CERD The Court thereby reserved for itself the right to decide upon the legality of any

such reservation regardless of whether two thirds of the contracting parties of CERD had

objected to such reservation or not The same considerations must then also apply to the

Committee as the primary custodian of the Convention

81 It is also worth noting that the ICJ in reaching its conclusion had also found it

relevant and noteworthy that the said reservation had not been met by an objection by

the other State concerned As the ICJ put it

ldquoThe Court observes moreover that the DRC itself raised no objection to the

reservation when it acceded to the [CERD] Conventionrdquo70

68 ICJ Case Concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic

Republic of the Congo v Rwanda) Jurisdiction and Admissibility Judgment ICJ Reports 2006 p6 et seq 69 Ibid p 35 para 77 70 Ibid emphasis added

23

82 In contrast thereto the State of Palestine had indeed lodged a protest against

Israelrsquos purported lsquoobjectionrsquo 71 In line with the ICJrsquos jurisprudence referred to above

such reaction by the State of Palestine must be taken into account as an additional

relevant factor

83 Furthermore requiring the necessity of two thirds of the contracting parties

objecting to Israelrsquos declaration which purports to exclude a treaty relationship with one

contracting State namely the State of Palestine would be nonsensical since all other

contracting parties are not concerned by such objection

84 In this regard the State of Palestine notes that not a single State party of CERD has

ever attempted to exclude the applicability of Article 11 CERD by way of a reservation

which stands in contrast to the relatively high number of reservations as to Article 22

CERD This practice is indicative of the opinio juris of State parties that unilateral

declarations purporting to render the interstate communication procedure under

Articles 11-13 CERD obsolete be they reservations in the technical sense or be they

lsquoobjectionsrsquo to a treaty relationship are not permissible

85 This result that the 23-requirement contained in Article 20 CERD does not exclude

the Committee to make findings as to the permissibility of declarations aiming at

excluding Arts 11- 13 is further confirmed by the Committeersquos own practice on the

matter Inter alia the 9th meeting of persons chairing the various human rights treaty

bodies and thus including the chairperson of the CERD Committee had in 1998

ldquo(hellip) expressed their firm support for the approach reflected in General Comment

No 24 adopted by the Human Rights Committeerdquo72

86 As is well-known General Comment 24 of the Human Rights Committee has

taken the position that it is for the respective treaty body to decide upon the permissibility

of declarations made by State Parties and purporting to modify the treaty relationship

between State parties The statement mentioned did not however draw any difference

between CERD on the one hand and the ICCPR (as well as other human rights treaties)

on the other This obviously implies that it was simply taken for granted that the CERD

Committee would be placed at the very same position vis-agrave-vis such declarations as other

71 United Nations Depositary Notification CN3542014TREATIES-IV2 (12 June 2014) available at

httptreatiesunorgdocPublicationCN2014CN3542014-Engpdf) 72 Report of the 9th meeting of persons chairing the human rights treaty bodies UN Doc A53125 (14 May 1998)

p4 para 18 available at

httpstbinternetohchrorg_layoutstreatybodyexternalDownloadaspxsymbolno=A2f532f125ampLang=en

24

treaty bodies and that it follows the approach reflected in General Comment 24 of the

Human Rights Committee

87 What is more is that inter alia in its 2001 concluding observations on Japanrsquos initial

report the Committee determined that Japanrsquos reservation as to Article 4 CERD was

ldquo(hellip) in conflict with the State partyrsquos obligations (hellip)rdquo73

88 The Committee did so despite the fact that the said reservation had not been met

with any objection by any other State parties of CERD It is noteworthy that in Israelrsquos

reading of Article 20 CERD this approach by the Committee was ultra vires since in

Israelrsquos view absent objections by more than two thirds of State Parties of CERD any

reservation and accordingly also any declaration purporting to exclude the applicability

of Articles 11 - 13 CERD (the legal effects of which are in Israelrsquos own view identical to

a reservation) has to be ipso facto considered valid and effective

89 On the whole therefore and in line with Israelrsquos own assumption that the legal

effects of its objection are identical to the ones of a reservation it follows that Israelrsquos

objection meant to exclude the ability of the State of Palestine to trigger the procedure

under Article 11 CERD must accordingly be considered impermissible given that Article

20 CERD prohibits any unilateral declarations which purport to inhibit the operation of

the Committee

VIII Israelrsquos own position as to Bahrainrsquos objection concerning the Genocide

Convention

90 The State of Palestine further recalls Israelrsquos reaction to the mutatis mutandis

identical Bahraini objection concerning its treaty relations with Israel under the Genocide

Convention where Israel itself had stated that such objection by Bahrain

ldquo(hellip) cannot in any way affect whatever obligations are binding upon Bahrain (hellip)rdquo74


CERDC304Add114 (27 April 2001) 74 United Nations Treaty Collection Convention on the Prevention and Punishment of the Crime of Genocide

available at

httpstreatiesunorgPagesShowMTDSGDetailsaspxsrc=UNTSONLINEamptabid=2ampmtdsg_no=IV1ampchapter=4

amplang=en21 emphasis added

25

91 Put otherwise Israel the Occupying Power accepts that any such objection like

the one at hand by Bahrain cannot preclude the applicability of a treaty such as the

Genocide Convention as between two contracting parties Yet given that CERD and the

Genocide Convention share the very same characteristics ie that both possess a jus

cogens and erga omnes character the very same considerations must then apply to CERD

As such Israelrsquos argument once again is invalidated by its own previous positions and

interpretations

92 Yet Israel the Occupying Power attempts to avoid this obvious conclusion by

drawing an artificial distinction between substantive obligations which Israel seems to

no longer claim require treaty relations and specific enforcement mechanisms which in

Israelrsquos view would 75 This attempt is however unconvincing and without merit

Notably Israel in its own words referred to lsquowhatever obligationsrsquo that are not to be

affected by any such objection which obviously also include procedural obligations

93 Besides in order for Bahrain to eventually commit a violation of the Genocide

Convention vis-agrave-vis Israel and in order for Israel to thus be able to eventually invoke

the State responsibility of Bahrain under the Genocide Convention all obligations arising

under such treaty must to use the terminology of the ILC be lsquoowed torsquo that State ie

Israel That in turn as was confirmed by the ICJ in its judgment in the Belgium versus

Senegal case presupposes that both States are linked with each other by a contractual

bond 76 If however such a contractual bond exists as between Bahrain and Israel under

the Genocide Convention (as Israel seems to accept) despite Bahrainrsquos objection and

Israelrsquos reaction thereto this must also hold true for CERD generally and for the

relationship between Israel and the State of Palestine specifically

94 If however Israel the Occupying Power is under an obligation vis-agrave-vis the State

of Palestine to fulfil its obligations arising under CERD (as confirmed by Israelrsquos own

position vis-agrave-vis the Bahraini objection in relation to the Genocide Convention) and

even if Israel had purported to exclude such treaty relationship this must include the

means to enforce those rights which otherwise would be rather theoretical and abstract

in nature and devoid of any real substance

75 Ibid 76 ICJ Case Concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)

Judgment ICJ Reports 2012 p 422

26

95 Overall Israel and the State of Palestine are in a treaty-based relationship under

CERD The State of Palestine was thus fully entitled to trigger the interstate

communication procedure contained in Articles 11-13 CERD Even if it were otherwise

quod non Israel the Occupying Power would be barred from claiming that it is not in a

treaty relationship with the State of Palestine under CERD

E Israel is precluded from claiming that it is not in a treaty relationship with the State of

Palestine under CERD

I Preliminary remarks

96 By way of two subsidiary arguments the State of Palestine had provided two

further interlinked yet separate arguments as to why the Committee ought to entertain

the intestate communication submitted by the State of Palestine even in the unlikely

event it were to find that no treaty exists between the two State Parties of CERD now

before the Committee ie Israel and the State of Palestine

97 On the one hand the State of Palestine submitted that Israel the Occupying

Power is legally precluded from arguing that it is not in a treaty relationship with the

State of Palestine On the other hand the State of Palestine had further argued that Israel

is barred from denying Palestinersquos statehood since it acts in bad faith77

98 While Israel tried to argue the second prong of this argument albeit in an

extremely politicized manner it has deliberately shied away from bringing forward any

legal argument whatsoever as to the first prong which should alone invite the

Committee to pause and reflect upon the matter

99 The State of Palestine will now address the first of the two prongs namely that

Israel is precluded from claiming that it is not in a treaty relationship with the State of


II Substance of Palestinersquos argument

77 State of Palestinersquos comments p 22

27

100 The State of Palestine had highlighted in that regard the fact that the whole

purpose of Israelrsquos arguments is to create a legal vacuum where its actions in the

occupied territory of the State of Palestine would not be subject to any scrutiny under

CERD namely first by denying any extraterritorial applicability of CERD second by

entering a reservation to Article 22 CERD and finally third by purporting to exclude the

ability of the injured State namely the State of Palestine to trigger the interstate

communication procedure under Articles 11-13 CERD

101 It suffices to imagine that South Africa prior to its democratization had become a

contracting party of CERD but at the same time would have attempted to act mutatis

mutandis in the same manner as far as its acts in Namibia were concerned as Israel now

attempts vis-agrave-vis the State of Palestine Accordingly South Africa would have first

denied any extraterritorial effect of CERD It would have also entered a reservation to

Article 22 CERD Finally South Africa would have also purported to exclude the

applicability of the interstate communication procedure vis-agrave-vis Namibia due to an

alleged lack of Namibian statehood then still occupied by South Africa despite the fact

that as already mentioned Namibia represented by the UN Council for Namibia had

already become a contracting party of CERD as of 1982 and had been accepted as such

102 Is it really imaginable that in such a scenario the Committee would have accepted

the attempt by South Africa to shield itself from any form of accountability mechanism

under CERD Is it really imaginable that the Committee would have accepted South

Africarsquos claim that occupied Namibia lacked statehood and hence could not be a

contracting party of CERD nor that it could trigger the Article 11 CERD procedure

despite the recognition by UN organs of the ability of Namibia to become a contracting

party of CERD and despite the fact that the Committee had already requested Namibia

to submit State reports under Article 9 CERD from 1982 onwards In particular is it

really imaginable that the Committee would have accepted such attempt by South

Africa to shield its egregious policy of racial segregation (which the Committee also

already found to exist in the occupied territory of the State of Palestine78) from scrutiny

in proceedings under Article 11 CERD triggered by Namibia

103 Instead of providing an answer to those questions it suffices to remind the

Committee of what the European Court of Human Rights had to say in a strikingly


CERDCISRCO14-16 (3 April 2012)

28

similar context in the Louzidou case namely that a contracting party of the ECHR may

not by unilateral declaration create

ldquo(hellip) separate regimes of enforcement of Convention obligations depending on the

scope of their acceptancesrdquo79

and that the existence of a restrictive clause governing reservations such as in the case at

hand Article 20 CERD

ldquo(hellip) suggests that States could not qualify their acceptance (hellip) thereby effectively

excluding areas of their law and practice within their lsquojurisdictionrsquo from

supervision by the Convention institutionsrdquo80

Again it is worth reiterating that Israel the Occupying Power had nothing to say at all on

that

F Israel is barred from denying Palestinersquos statehood under the principle of good faith

104 In its comments to Israelrsquos Note the State of Palestine had further submitted that

ldquoIsrael is barred from denying Palestinian statehood under the principles of good faithrdquo

In that regard Palestine had submitted that Israelrsquos claim that it did not consider

Palestine to be a party to CERD because it fails to meet the criteria of statehood was made

in bad faith This led Palestine to conclude that there was an ulterior motive for Israelrsquos

decision not to recognize Palestinian statehood namely ldquoto annex either de jure or de

facto a substantial part of Palestinian territoryrdquo81 and that it ldquodoes not wish to be

obstructed in this endeavor by the recognition of Palestine as a Staterdquo82 While the State

of Palestine stressed that it did not make this allegation lightly it was able to refer to

manifold evidence confirming its position

105 On substance Israel the Occupying Power had nothing to answer as far as the

accusation of bad faith is concerned because at no stage did it address the argument that

79 European Court of Human Rights Loizidou v Turkey (Preliminary Objection) Application no 1531889 (23 March

1995) para 72 80 Ibid para 75 81 State of Palestinersquos comments p 23 82 Ibid

29

its ulterior motive in opposing Palestinian statehood is its intention to illegally annex the

occupied territory of the State of Palestine There was no denial whatsoever on the part

of Israel of this assertion In the absence of such a denial the Committee can only

conclude that this is the reason ndash or at least one of the reasons ndash for Israelrsquos refusal to

recognize Palestinian statehood and its refusal to accept having entered into a treaty

relationship with the State of Palestine under CERD

106 The State of Palestinersquos bad faith argument was further proven by the actions of

Israel the Occupying Power which shortly after writing the Note mentioned above

enacted the so-called ldquoBasic Law Israel as the Nation-State of the Jewish Peoplerdquo law

which legislated the de facto annexation of the occupied territory of the State of Palestine

107 This in turn therefore means that under the principle of bad faith Israel the

Occupying Power may not rely on an alleged lack of a treaty relationship as between

Israel and Palestine since the aim of any denial of a treaty relationship is not only to

frustrate the proper application and implementation of CERD but also to further its

territorial ambitions in the Palestinian territory in violation of the jus cogens right of the

Palestinian people to exercise its right of self-determination

108 As a matter of fact it was the ICJ that found in its 2004 Advisory Opinion on the

lsquoLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territoryrsquo that

the Palestinian people is bearer of the right of self-determination 83 which as one of the

essential principles of international law possesses an erga omnes and jus cogens

character84 Given this character Israel the Occupying Power and the international

community as a whole are legally obliged to uphold the right of the Palestinian people

to self-determination Yet by trying to implement its territorial aspirations as outlined

above Israel the Occupying Power is trying to prevent the State of Palestine from

exercising all the prerogatives of statehood including the purported attempt to inhibit

the State of Palestine from exercising its rights under Article 11 CERD

109 Accordingly in the current proceedings Israel the Occupying Power is legally

barred from denying that the State of Palestine is a State party of CERD and that it is in

a treaty relationship with Israel the Occupying Power

83 ICJ Case Concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Advisory Opinion ICJ Rep 2004 p 183 84 ICJ Case Concerning East Timor (Portugal v Australia) Judgment I CJ Reports 1995 p 102 para 29

30

G In any case Article 11 CERD does not require a treaty relationship as between the State

parties concerned

110 The State of Palestine has thus shown once again that a contractual bond under

CERD exists as between Israel and the State of Palestine or at the very least that Israel

is barred for two mutually reinforcing reasons from relying on such alleged lack of a

treaty relationship

111 In the alternative and in the unlikely event that the Committee were to reach a

different result the State of Palestine recalls its argument that any such treaty

relationship is not required anyhow in order for the Committee to deal with the

communication submitted by the State of Palestine In doing so Palestine recalls the erga

omnes and jus cogens character of CERD 85 whose characterization Israel has not denied

in its recent note and must thus be taken as having been accepted by Israel

112 It is then essential to recall that any violation of CERD by Israel the Occupying

Power constitutes a violation of the Convention vis-agrave-vis all other contracting parties of

CERD even if one were to assume be it only arguendo that Israel is not thereby at the

same time committing a violation of CERD vis-agrave-vis the State of Palestine due to an

assumed lack of a treaty relationship

113 Accordingly all contracting parties of CERD have a legally protected interest

within the meaning of Article 48 ILC Articles on State Responsibility (as having codified

customary international law) that Israel abides by its obligations under CERD A

communication brought under Article 11 CERD therefore is not meant to enforce the

specific rights of just one contracting party ie in the case at hand those of the State of

Palestine Rather it is meant to serve the interests of the overall community of contracting

parties of CERD with which Israel the Occupying Power undoubtedly is in treaty

relations even from its own viewpoint as demonstrated in its Note and above

114 The procedure under Article 11 CERD is thus of an objective rather than of an

exclusively bilateral character or to paraphrase the words of the European Commission


31

on Human Rights in the Pfunders case the purpose of such a communication is to bring

before the Committee violations of the universal public order enshrined in CERD86

115 This objective character of the Article 11 CERD procedure as was already shown

in Palestinersquos previous comments is confirmed by both the very wording as well as the

drafting history of Article 11 CERD It is worth recalling that Israel the Occupying

Power had nothing to say on substance Instead Israel merely stated that such an

understanding which is fully in line with the specific character of CERD is

lsquounthinkablersquo87 without providing any further explanation for such proposition

116 At most Israel the Occupying Power engages albeit only very briefly with the

longstanding position of the ECHR supporting such objective understanding of the

procedure under Article 11 CERD Israel states that

ldquo[i]t is doubtful whether the [European] Commission [on Human Rights] would

have come to the same conclusion [in the Pfunders case] had Austriarsquos standing as

a State party been questionable and had treaty relations been formally objected to

by Italyrdquo88

117 It also mentioned references (without specifying them however) in the Pfunders

decision of the European Commission on Human Rights to the fact that Austria was

entitled to submit its complaint only once it had become a High Contracting party of the

ECHR89 These comments by Israel warrant three remarks

118 First Palestinersquos status as a state party of CERD is not lsquoquestionablersquo as is alleged

by Israel As has already been shown above the CERD Committee itself has time and

again treated the State of Palestine as a contracting party of CERD and has thereby

unequivocally confirmed its status as a State party of CERD

119 Second in the Pfunders case Austria and Italy were in agreement that Austria had

not been a contracting party of the ECHR at the relevant time Even in such

86 See European Commission of Human Rights Austria v Italy in particular Application no 78860 (11 January

1961) pp 13 et seq available at httpshudocechrcoeintengi=001-

11559822fulltext22[227886022]22sort22[22appnoyear20Ascendingappnocode20Ascendin

g22] 87 Israelrsquos observation p 11 88 Israelrsquos observations p11 fn 33Ibidp11 89 Ibid

32

circumstances where the lack of a treaty relationship was thus undisputed the European

Commission on Human Rights nevertheless found that Austria could still bring a case

relating to a situation where no treaty relationship did exist A fortiori this must also hold

true where one of the States denies such lack of a treaty relationship for good reasons

120 Third the State of Palestine (just like Austria in the Pfunders case) is as confirmed

by the Committee itself a contracting party of CERD

121 On the whole therefore the approach underlying the Pfunders line of

jurisprudence by the European Commission on Human Rights ought also to inform the

approach to be taken for purposes of CERD since otherwise CERD would contrary to

its erga omnes character (as confirmed by the ICJ ever since its Barcelona Traction

judgment90) be reduced to a mere bundle of bilateral treaty relationships

122 Finally the State of Palestine will address the reference by Israel to the practice of

the Committee concerning the occupied Syrian Golan 91 which reference by Israel one

might say is not only somewhat ironical in nature but also misleading In that regard it

must be noted first that as then expressly noted by the Committee Syria itself had not

even invoked Article 11 CERD 92 At best any comment by the Committee on the matter

thus constitutes a mere obiter dictum Besides the Committee had considered it

particularly relevant that no objection to the Syrian declaration purporting to exclude a

treaty relationship with Israel had been raised 93 This obviously stands in clear contrast

to the situation at hand where the State of Palestine has from the very beginning

challenged the attempt by Israel to by way of its objection exclude a treaty relationship

with the State of Palestine as far as CERD is concerned Notably Palestine had stated in

a formal note to the depositary the following

ldquoThe Government of the State of Palestine regrets the position of Israel the

occupying Power and wishes to recall United Nations General Assembly

resolution 6719 of 29 November 2012 according Palestine lsquonon-member observer

State status in the United Nationsrsquo In this regard Palestine is a State recognized

90 ICJ Case Concerning Barcelona Traction Light and Power Company Limited Judgment ICJ Reports 1970 p

3 et seq paras 3334 91 Israelrsquos observations p11 fn 34 92 Report of the Committee on the Elimination of Racial Discrimination UN GAOR 36th Sess (1981) Supp No18

at 54 par 173 A3618(SUPP) p 54 93 Ibid

33

by the United Nations General Assembly on behalf of the international

community As a State Party to the International Convention on the Elimination of

all forms of Racial Discrimination which entered into force on 2 May 2014 the State

of Palestine will exercise its rights and honour its obligations with respect to all States

Parties The State of Palestine trusts that its rights and obligations will be equally

respected by its fellow States Partiesrdquo94

123 Accordingly the reliance by Israel on that practice of the Committee is misplaced

What is more is that even assuming arguendo that no treaty relationship were to exist as

between Israel and the State of Palestine Palestine could nevertheless trigger the

interstate communication procedure in line with Article 11 CERD

124 Before now turning to the issue of exhaustion of local remedies the State of

Palestine therefore respectfully submits that on the basis of the arguments extensively

developed above there is ample reason to find that the Committee has jurisdiction to

entertain the complaint submitted under Article 11 CERD and that Israelrsquos attempt to

escape from scrutiny by the Committee in line with the procedure specifically designed

to examine widespread and systematic violations of CERD should not stand

PART III EXHAUSTION OF LOCAL REMEDIES

A Introduction

125 The Committee shall deal with the State of Palestinersquos complaint in accordance

with

ldquoparagraph 2 of this article [Article 11] after it has ascertained that all

available domestic remedies have been invoked and exhausted in the case in

conformity with the generally recognized principles of international law

This shall not be the rule where the application of the remedies is

unreasonably prolongedrdquo

126 In the following the State of Palestine will demonstrate first that the burden of

proof as to the exhaustion of local remedies lies with Israel the Occupying Power as


httptreatiesunorgdocPublicationCN2014CN3542014-Engpdf) emphasis added

34

being the respondent State second that given the specific circumstances prevailing on the

ground as well as the scope and character of Israeli violations of CERD no exhaustion

of remedies may be required and third and in any case if any available local remedies

have been exhausted they are ineffective and futile

B Under general rules the burden of proof with regard to the exhaustion of local remedies

lies with Israel

127 Under generally recognized principles of international law as confirmed by the

extensive practice of international courts and tribunals as well as that of human rights

treaty bodies it is for the Party claiming the non-exhaustion of local remedies to prove

that in a given situation effective local remedies did exist and that they have not been

previously exhausted This was confirmed as early as 1959 by the arbitral tribunal in the

Ambatielos case when it stated that

ldquo(hellip) [i]n order to contend successfully that international proceedings are

inadmissible the defendant State [ie in the case at hand Israel] must prove the

existence in its system of internal law of remedies which have not been usedrdquo95

128 Hence under general international law the burden of proof as to the exhaustion

of local remedies rests upon the party who asserts that those have not been exhausted to

prove this very assertion This has also been confirmed by various human rights treaty

bodies in particular when it comes to interstate complaints Thus already in its very first

interstate case brought by Greece against the United Kingdom the then European

Commission of Human Rights not only held that it

ldquo(hellip) may only deal with a matter after all domestic remedies have been exhausted

according to the generally recognized rule of international law (hellip)96

but that besides

95 The Ambatielos Claim (Greece United Kingdom of Great Britain and Northern Ireland) Award of 6 March 1956

UNRIAA vol XII p 83 et seq (119) emphasis added 96 European Commission on Human Rights Greece v UK (II) Decision on Admissibility of 12 October 1957 p 3

35

ldquo() in accordance with the said generally recognized rules of international law it

is the duty of the government claiming that domestic remedies have not been

exhausted to demonstrate the existence of such remediesrdquo97

129 This approach is further confirmed by the practice under the UN Convention on

the Elimination of All Forms of Discrimination Against Women (lsquoCEDAWrsquo) Just like

Article 11 CERD it is Article 4 para 1 Optional Protocol to the UN Convention on the

Elimination of All Forms of Discrimination Against Women which requires that the

CEDAW Committee shall not consider a communication unless ldquo() all available

domestic remedies have been exhaustedrdquo

130 Article 69 para 6 of the CEDAW Committeersquos Rules of Procedure then explicitly

provides that it is the defendant State that carries the burden of proof in that regard It

accordingly states

ldquoIf the State party concerned disputes the contention of the author or authors in

accordance with article 4 paragraph 1 of the Optional Protocol that all available

domestic remedies have been exhausted the State party shall give details of the

remedies available to the alleged victim or victims in the particular circumstances

of the caserdquo

131 In the very same terms Article 92 para 7 Rules of Procedure of the CERD

Committee itself also provides that

ldquo(hellip) [i]f the State party concerned disputes the contention of the author of a

communication that all available domestic remedies have been exhausted the

State party is required to give details of the effective remedies available to the

alleged victim in the particular circumstances of the caserdquo98

132 While the provision as such only applies to individual complaints under Article

14 CERD and while any provision as to the exhaustion of local remedies is lacking in

Part XVI of the CERD Committeersquos Rules of Procedure dealing with interstate complaints

submitted under Article 11 CERD its underlying idea must e fortorio apply in a situation

97 Ibid emphasis added 98 Rules of Procedure of the Committee on the Elimination of Racial Discrimination CERDC35Rev3 (1989) art

92

36

where an overall situation involving a pattern of widespread and systematic violations

of CERD is brought to the attention of the CERD Committee

133 This understanding of the local remedies rule as far as the burden of proof is

concerned stands in line with the case law of the African Commission on Human and

Peoplesrsquo Rights which held in a case involving Zambia that

ldquo(hellip) [w]hen the Zambian government argues that the communication must be

declared inadmissible because the local remedies have not been exhausted the

government then has the burden of demonstrating the existence of such

remediesrdquo99

134 In the very same vein it was the Inter-American Court of Human Rights which

in the Velasquez Rodriguez case not only confirmed that the burden of proof as to the

availability of local remedies lies with the respondent State but that besides the

respondent State also has to demonstrate that such local remedies are more than nominal

in nature The Inter-American Court of Human Rights accordingly stated that

ldquo(hellip) the State claiming non-exhaustion [of local remedies] has an obligation to

prove that domestic remedies remain to be exhausted and that they are

effectiverdquo100

135 What is more is that in its 1990 advisory opinion on domestic remedies the Inter-

American Court of Human Rights equivocally confirmed that this result as to the burden

of proof is not only derived from the specific provision of the Inter-American Convention

on Human Rights dealing with the exhaustion of local remedies but that it is rooted in

general international law It accordingly stated that

ldquo(hellip) in accordance with general principles of international law it is for the State

asserting non-exhaustion of domestic remedies to prove that such remedies in fact

exist and that they have not been exhaustedrdquo101

99 African Commission of Human and Peoplesrsquo Rights Communication 7192 Rencontre africaine pour la deacutefense

des droits de lHomme (RADDHO) Zambia Decision on merits para 12 ndash (31 October 1997) 100 Inter-American Court of Human Rights Velasquez Rodriguez Case Judgment (26 June 1987) (Preliminary

Objections) para 88 101 Inter-American Court of Human Rights Exceptions to the Exhaustion of Domestic Remedies (Arts 46(1) 46(2)(a)

and 46 (2)(b) of the American Convention on Human Rights) Advisory Opinion OC-1190 August 10 1990 Inter-

Am Ct HR (Ser A) No 11 (1990) para 40 (emphasis added)

37

136 This line of jurisprudence was then reconfirmed if ever there was need and

further elaborated by the Inter-American Court on Human Rights in 2009 It accordingly

specified

ldquo(hellip) Regarding the material presumptions the Court will examine whether

domestic remedies were filed and exhausted in keeping with generally recognized

principles of international law particularly whether the State filing the objection

specified the domestic remedies that were not exhausted and the State must

demonstrate that those remedies were available and were adequate appropriate

and effectiverdquo102

137 On the whole therefore it stands to reason that human rights bodies be they

universal in nature or be they of a more regional character have accepted that under

general rules of international law it is for the State claiming a non-exhaustion of local

remedies to provide substantial evidence in that regard At the same time it is telling that

while Israel the Occupying Power has generally referred to the role and availability of

its court system in protecting individual rights it has failed to specifically refer to case

law that would demonstrate the possibility for nationals of the State of Palestine to even

in theory seek effective legal protection from acts of the Occupying Power This holds

true in particular when it comes to the systematic set up of illegal settlements

throughout the occupied territory of the State of Palestine

138 The settlement enterprise which is exclusively reserved for people of Jewish

origin lie at the very heart of the State of Palestinersquos complaint brought under Art 11

CERD and which such illegal system and its ensuing consequences constitute a deeply

entrenched scheme of racial discrimination as has been confirmed by the Committee for

which Israel the Occupying Power bears international responsibility103

139 Accordingly Israel the Occupying Power has not been able to show indeed not

even demonstrate prima facie that Palestinians who are subjected to violations of CERD

by Israel have access to effective local remedies It is already for this reason alone that the

argument by Israel that the interstate complaint lodged by the State of Palestine is

inadmissible should be rejected

102 Inter-American Court of Human Rights Case of Escher et al v Brazil Judgment of July 6 2009 (Preliminary

Objections Merits Reparations and Costs) para 28 emphasis added 103 United Nations Committee on the Elimination of Racial Discrimination Concluding Observations UN Doc

CERDCISRCO14-16 (3 April 2012) para 10

38

140 It is thus only in the alternative that the State of Palestine will now show that in

any case no exhaustion of local remedies is required given the widespread and

systematic character of the underlying violations of CERD and that besides even if it

were otherwise there are no effective domestic remedies available for Palestinian

nationals

C Under the given circumstances of widespread violations of CERD taking place on the

territory of the applicant State its territory being subject to belligerent occupation no

exhaustion of local remedies is required

141 CERD just like other human rights instruments should be interpreted in a manner

so that its guarantees are effective rather than merely theoretical in nature104

Accordingly one has to take into account the specific situation on the ground when

evaluating whether the exhaustion of local remedies is to be required

142 In the case at hand the violations of CERD occur on the territory of the applicant

State by the defendant State Israel as being the Occupying Power Besides the

defendant State continues to argue contrary to the position of Committee105 that it is not

bound by CERD when it comes to its actions taking place on the occupied territory of the

State of Palestine106

143 In addition Palestinian nationals do not have access to the territory of the

defendant State and are thereby de facto barred from bringing claims before Israeli courts

unless exceptionally they may be supported by Israeli non-governmental organizations

or unless they are willing to subject themselves to a cumbersome and restrictive

procedure for being granted a permit to enter Israel which as a matter of routine are

however denied by the organs of the Occupying Power It is for this reason alone that

104 See the European Court of Human Rightrsquos constant jurisprudence on the importance of the application an

interpretation of the Convention which renders its rights practical and effective not theoretical and illusory for

example Airey v Ireland application no 628973 judgment of 09 October 1979 para 24 Christine Goodwin v

The United Kingdom Application no 2895795 Judgment of 11 July 2002 para 74 Leyla Şahin v Turkey

Application no 4477498 judgment of 10 November 2005 para 13 105United Nations Committee on the Elimination of Racial Discrimination UN Docs CERDCSR1250 1251 and

1272 see also on the extraterritorial applicability of human rights treaties ICJ Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports 2004 p 46 para 106 106 See for example United Nations Committee on the Elimination of Racial Discrimination Concluding

Observations UN Docs CERDCISRCO13 para 32 and CERDCISRCO14-16 para 10

39

Palestinian nationals cannot be expected to exhaust lsquolocalrsquo remedies even assuming they

would otherwise be available quod non

144 This approach is confirmed by the jurisprudence of the African Commission of

Human and Peoplersquos Rights which in 2003 dealt with a comparable situation of

belligerent occupation ie the occupation of Eastern border provinces of the Democratic

Republic of the Congo by armed forces from Burundi Uganda and Rwanda In its

decision on Communication 22799 (Democratic Republic of Congo v Burundi Rwanda

and Uganda)107 the African Commission of Human and Peoplersquos Rights first

acknowledged that

ldquo(hellip) it can consider or deal with a matter brought before it if the provisions of

Article 50 of the [African] Charter [on Human and Peoplersquos Rights] and 97(c) of the

Rules of Procedure are met that is if all local remedies if they exist have been

exhausted (hellip)rdquo108

It then however took

ldquo(hellip) note that the violations complained of are allegedly being perpetrated by the

Respondent States in the territory of the Complainant Staterdquo109

This led the African Commission of Human and Peoplersquos Rights to then find that under

such circumstances

ldquo(hellip) local remedies do not exist and the question of their exhaustion does not

therefore ariserdquo110

145 The same must then apply mutatis mutandis in the situation now before the

Committee where the nationals of the State of Palestine find themselves in the very same

107 African Commission of Human and Peoplesrsquo Rights Communication 22799 (Democratic Republic of Congo v

Burundi Rwanda and Uganda) 33rd Ordinary Session May 2003 108 Ibid para 62 109 Ibid para 63 110 Ibid

40

situation via-agrave-vis an Occupying Power as the then nationals of the Democratic Republic

of the Congo found themselves vis-agrave-vis Burundi Rwanda and Uganda

146 In any event and even if the CERD Committee were to find otherwise quod non

no exhaustion of local remedies is required since Israelrsquos violations of CERD amount to

an lsquoadministrative practicersquo rendering the issue of local remedies moot

D No exhaustion of local remedies is required due to the fact that Israelrsquos violations of

CERD amount to an lsquoadministrative practicersquo

147 As extensively shown in the State of Palestinersquos complaint111 and as confirmed by

the practice of the CERD Committee itself in its concluding observations on Israelrsquos last

state report submitted under Article 9 CERD the whole Palestinian population living in

the occupied territory of the State of Palestine faces a systematic practice of violations of

CERD which violations extent far beyond individualized cases 112

148 Those violations do not only cover ratione loci the whole territory of the State of

Palestine including occupied East Jerusalem but include ratione materiae violations of all

rights guaranteed by CERD These violations are the result of a systematic and

entrenched policy of belligerent occupation and the ever-increasing set-up of Israeli

illegal settlements with the ensuing consequence of discriminatory treatment of the

indigenous Palestinian population

149 Under those circumstances and in line with the practice of other human rights

bodies it cannot be expected that in particular as part of an interstate complaint

procedure focusing on widespread and systematic violations of the underlying human

rights treaty it has to be shown that each and every violation of the said treaty has been

raised in individual proceedings before local courts of the occupying power

150 This is confirmed inter alia by the jurisprudence under the European Convention

on Human Rights where the European Commission on Human Rights found on several

111 Interstate Complaint under Articles 11-13 of the International Convention for the Elimination of All Forms of

Racial Discrimination State of Palestine versus Israel (23 April 2018) p330 - 337 and passim 112 United Nations Committee on the Elimination of Racial Discrimination Concluding Observations UN Doc

CERDCISRCO14-16 (3 April 2012) in particular para 24

41

occasions that in interstate cases the requirement of exhaustion of local remedies does

not apply if it is a legislative or administrative practice that is being challenged by the

applicant State which in any case cannot be expected to undertake its own litigation

before the national courts of the respondent State113 As already the European

Commission on Human Rights put it

ldquoWhereas the provision of Article 26 concerning the exhaustion of domestic

remedies according to the generally recognized rules of international law does not

apply to the present application the scope of which is to determine the

compatibility with the Convention of legislative measures and administrative

practices in Cyprus (hellip)rdquo114

151 This position was confirmed by the European Court for Human Rights in the

Georgia v Russia case The Court after reiterating that while as a matter of principle

ldquo(hellip) the rule of exhaustion of domestic remedies as embodied in Article 35 sect 1 of

the [European] Convention [on Human Rights] applies to State applications (hellip)

in the same way as it does to lsquoindividualrsquo applications (hellip) when the applicant

State does no more than denounce a violation or violations allegedly suffered by

lsquoindividualsrsquo whose place as it were is taken by the State (hellip)rdquo115

the local remedies rule

ldquo(hellip) does not apply where the applicant State complains of a practice as such with

the aim of preventing its continuation or recurrence but does not ask the Court to

give a decision on each of the cases put forward as proof or illustrations of that

practice (see Ireland v the United Kingdom 18 January 1978 sect 159 Series A no

25 Cyprus v Turkey no 2578194 Commission decision of 28 June 1996

Decisions and Reports (DR) 86 and Denmark v Turkey (dec) no 3438297 8 June

1999)rdquo116

113 William Schabas The European Convention on Human Rights (2015) p 766 114 European Commission on Human Rights Greece v UK Complaint no 17656 Decision of 2 June 1956 Yearbook

of the European Convention on Human Rights 2 p 182 et seq (184) emphasis added see also European Commission

on Human Rights Denmark Norway Sweden and the Netherlands v Greece (lsquoFirst Greek Casersquo) Yearbook of the

European Convention on Human Rights 11 p 690 et seq (726) European Commission on Human Rights Denmark

Norway Sweden and the Netherlands v Greece (lsquoSecond Greek Casersquo) Collection of Decisions 34 p 70 et seq (73) 115 ECHR Georgia v Russia Application no 1325507 Decision on admissibility of 30 June 2009 para 40 116 Ibid emphasis added

42

152 This approach is shared by the African Commission on Human Rights with regard

to Article 56 of the African Charter on Human and Peoples Rights which accordingly

found that where a whole population or significant part thereof is victim of violations of

the respective human rights instrument the exhaustion of local remedies is not

required117

153 As to the proof of such an administrative practice the European Court of Human

Rights found that the question whether

ldquo(hellip) the existence of an administrative practice is established or not can only be

determined after an examination of the merits118

while

ldquo[a]t the stage of admissibility prima facie evidence (hellip) must (hellip) be considered

as sufficientrdquo119

154 In view of the European Court of Human Rights such prima facie evidence of an

alleged administrative practice already exists

ldquo(hellip) where the allegations concerning individual cases are sufficiently

substantiated considered as a whole and in the light of the submissions of both

the applicant and the respondent Party (hellip)rdquo120

155 The Court then further continued that such required prima facie evidence of an

administrative practice is only lacking provided

117 African Commission on Human Rights Open Society Justice Initiative v Cocircte drsquoIvoire Communication 31806

adopted during the 17th Extraordinary Session of the African Commission on Human and Peoplesrsquo Rights held from

18 to 28 February 2015 paras 45 et seq see also Malawi African Association et al v Mauritania Communications

5491 6191 9893 16497 21098 (2000) AHRLR 149 (ACHPR 2000) para 85 Sudan Human Rights Organisation

and Another Person v Sudan Communications 27903 et 29605 (2009) AHRLR 153 (ACHPR 2009) paras 100-101

as well as Zimbabwean Human Rights NGO Forum v Zimbabwe Communication 24502 (2006) AHRLR 128

(ACHPR 2006) para 69-72 118 Ibid para 41 see also European Commission on Human Rights France Norway Denmark Sweden and the

Netherlands v Turkey nos 9940-994482 Commission decision of 6 December 1983 DR 35 paras 21-22 119 Ibid 120 Ibid

43

ldquo(hellip) the allegations of the applicant Government are lsquowholly unsubstantiatedrsquo (lsquopas

du tout eacutetayeacuteesrsquo) or are lsquolacking the requirements of a genuine allegation (hellip)rsquo (lsquoferaient

deacutefaut les eacuteleacutements constitutifs drsquoune veacuteritable alleacutegation (hellip)rsquo)rdquo121

156 In the case at hand the State of Palestine has in its complaint submitted abundant

references to available evidence of Israelrsquos systematic violations of CERD which easily

fulfil the requirement of a genuine allegation of such violations and hence fulfil the

criteria of a not lsquowholly unsubstantiatedrsquo claim within the meaning of the jurisprudence

of the European Court of Human Rights

157 What is more and even more important the CERD Committee itself has

previously found when dealing with Israelrsquos latest State report under Article 9 CERD

that Israelrsquos settlement policy affects the whole Palestinian population The Committee

accordingly stated that

ldquo(hellip) the Israeli settlements in the Occupied Palestinian Territory in particular the

West Bank including East Jerusalem are not only illegal under international law

but are an obstacle to the enjoyment of human rights by the whole population

without distinction as to national or ethnic originrdquo122

158 In its concluding observations the CERD Committee also found Israel to be

responsible for a general policy and practice of racial segregation It accordingly stated

ldquoThe Committee draws the State partyrsquos [ie Israelrsquos] 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 Conventionrdquo123

121 Ibid para 44 emphasis added see also France Norway Denmark Sweden and the Netherlands v Turkey cited

above para 12 122 United Nations Committee on the Elimination of Racial Discrimination 18th session (13 February ndash 9 March

2012) Concluding observations of the Committee on the Elimination of Racial Discrimination CERDCISRCO14-

16 para 4 123 Ibid para 24

44

159 Finally the Committee was also

ldquoincreasingly concerned at the State partyrsquos [ie Israelrsquos] discriminatory planning

policyrdquo124

160 Accordingly it was the Committeersquos own considered position that Israel the

Occupying Power is responsible for general policies and practices violating CERD A

fortiori there can be no doubt that there exists much more than the required

lsquosubstantiated claimrsquo of an administrative practice amounting to violations of CERD

161 It follows that in line with general principles of international law this constitutes

an additional reason why there was no need to exhaust local remedies before triggering

the interstate complaint procedure under Articles 11 - 13 CERD

162 It is thus only in the alternative and should the Committee nevertheless take the

view that local remedies had to be exhausted as a matter of principle no such effective

local remedies did exist respectively that to the extent they exist as a matter of principle

they were ineffective

E Lack of efficient local remedies

I Required standard of efficiency

163 In principle for a case to be admissible before the Committee domestic remedies

must be invoked and exhausted in conformity with the generally recognized principles

of international law which are availability efficiency sufficiency and adequacy125

124 Ibid para 25 125 International Justice Resource Center Exhaustion of Domestic Remedies in the United Nations System (Aug 2017)

(IJRC) see for the respective provision under the ICCPR M Nowak UN Covenant on Civil and Political Rights

CCPR commentary (2nd ed 2005) p 769 et seq see also Art 41 para 1 lit c ICCPR Art 5 para 2 lit b Optional

Protocol to the ICCPR Arts 21 para 1 lit c 22 para 4 lit B CAT Arts 76 para 1 lit c 77 para 3 lit b International

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) Arts 3

para 1 10 para 1 lit c Optional Protocol to the ICESCR Art 7 lit e Optional Protocol to the CRC Art 31 para 2

lit d CED Art 46 para 2 American Convention on Human Rights (ACHR) Arts 50 56 para 5 African Charter on

Human and Peoplersquos Rights (ACHPR)

45

164 A remedy is lsquoavailablersquo if the petitioner can pursue it without impediment in

practice It is lsquoeffectiversquo if it offers a reasonable prospect of success to relieve the harm

suffered It is lsquosufficientrsquo if it is capable of producing the redress sought by the

complainant

165 When dealing with admissibility the UN treaty bodies shall examine numerous

criteria including

a The nature of the right violated and in particular the gravity of the alleged

violation

b Purely administrative and disciplinary remedies cannot be considered adequate

and effective domestic remedies126

c Local remedies must be available and effective in order for the rule of domestic

exhaustion to apply 127

d Domestic remedies are also considered unavailable and ineffective if the

national laws legitimize the human rights violation being complained of 128

if the State systematically impedes the access of the individuals to the Courts129

and if the judicial remedies are not legitimate and appropriate for addressing

violations further fostering impunity 130

e The enforcement and sufficiency of the remedy must have a binding effect and

ought not be merely recommendatory in nature which the State would be free to

disregard131

126 Human Rights Committee Basnet v Nepal Communication No 20512011 Views adopted on 26 November

2014 UN Doc CCPRC112D20512011 para 74 Giri v Nepal Communication No 17612008 Views adopted

on 24 March 2011 para 63 127 Human Rights Committee Vicenter et al v Colombia para 53 IJRC p8 AZ What is this 128 Manfred Nowak A Handbook on the individual complaints procedures of the UN Treaty Bodies (Boris Wijkstrom

2006) p 64 - 65 129 Human Rights Committee Grioua v Algeria Communication No 13272004 Views adopted on 10 July 2007

para 78 130 Human Rights Committee El Abani v Libyan Arab Jamahiriya Communication No 16402007 views adopted

on 26 July 2010 para 710 131 Committee on the Elimination of Racial Discrimination DR v Australia Communication No 422008 UN

Doc CERDC75D422008 para 6 4 available at httpundocsorgCERDC75D422008

46

f The Human Rights Committee further noted that remedies must ensure

procedural guarantees for ldquoa fair and public hearing by a competent

independent and impartial [court]rdquo132 This requires the court to be independent

from the authority being complained against133 The Committee in its response

to a State partyrsquos argument that the complainant had to re-present the grievance

to the same body that had originally decided on it observed that independence

ldquois fundamental to the effectiveness of a remedyrdquo134 As such an applicant need

not to exhaust futile or unhelpful remedies

g For the remedy to be adequate and sufficient minimum standards of

international law must be applied in order to provide redress to the applicant in

relation to the violations committed

h A remedy is futile if it objectively has no chance of success and is inevitably

dismissed by the Court As recognized by the Human Rights () Committee the

remedy is also futile when a positive result is impossible due to past court

rulings state inaction or danger in seeking out the remedy The Human Rights

Committee further stated that ldquothe local remedies rule does not require resort to

appeals that objectively have no prospect of successrdquo135 It further noted that if

based on previous court rulings an appeal ldquowould be bound to fail and that there

thus was no effective local remedy still to exhaustrdquo136

i This approach is further confirmed by the CERD Committee itself which stated

that remedies do not need to be exhausted if

132 Human Rights Committee Arzuaga Gilboa v Uruguay Communication No 1471983 views adopted on 1

November 1985 UN Doc CCPRCOP2 at 176 para 72 133 Committee on the Elimination of Racial Discrimination L R et al v Slovak Republic Communication No

312003 views adopted on 3 October 2005 UN Doc CERDC66D312003 para 92 available at

httpundocsorgCERDC66D312003 134 Committee on the Elimination of Racial Discrimination L R et al v Slovak Republic Communication No


httpundocsorgCERDC66D312003 135 Human Rights Committee Earl Pratt and Ivan Morgan v Jamaica Communication No 2101986 and 2251987

UN Doc Supp No 40 (A4440) at 222 para 123 136 Human Rights Committee Earl Pratt and Ivan Morgan v Jamaica Communication No 2101986 and 2251987

UN Doc Supp No 40 (A4440) at 222 para 125

47

ldquo(hellip) under applicable domestic law the claim would inevitably be

dismissed or where established jurisprudence of the highest domestic

tribunals would preclude a positive resultrdquo137

In another case the CERD Committee argued that if the application of remedies

lasts more than two years and requires unlawful and complex litigation the

remedy is ldquounreasonably prolongedrdquo138

j The Human Rights Committee also determined that it shall consider the

circumstances and the danger of local remedies as many fear ldquoreprisal from the

warders and claims to be living in complete fear for his liferdquo139

166 In principle nationals of the State of Palestine seeking remedies have no choice

but to resort to the Occupying Powerrsquos judicial avenues Therefore the Israeli judicial

system must consider cases raised by Palestinian nationals in this context

167 Conversely the Israeli judicial system is illegitimate futile unavailable

ineffective and insufficient It is unable to adjudicate over matters involving the rights

of nationals of the State of Palestine Instead the Israeli judicial system is used as an

instrument of oppression and discrimination including most especially by serving as a

rubber stamp to Israelrsquos discriminatory policies that violate the basic tenets of

international law including the CERD

II Israeli Judicial System

168 The Israeli judicial system in the occupied territory of the State of Palestine as it

legitimizes illegal acts and provides incorrect authoritative framework for future

conducts such as illegal annexation of the occupied territory and denial of the right of

self-determination of the Palestinian people an erga omnes right in international law

137 Committee on the Elimination of Racial Discrimination DR v Australia para 65 See also Committee on the

Rights of Persons with Disabilities Noble v Australia Views of 23 August 2016 UN Doc CRPDC16D72012

para 77 available at httpundocsorgCRPDC16D72012 138 Committee on the Elimination of Racial Discrimination Quereshi v Denmark Views adopted on 9 March 2005

Communication 332003 UN Doc CERDC66D332003 para64 139 Human Rights Committee Phillip v Trinidad and Tobago Communication 5941992 UN Doc

CCPRC64D5941992 para 64 available at httpundocsorgCCPRC64D5941992

48

169 Israeli occupation is not temporary by nature and purpose and is entrenching its

sovereignty in the occupied territory of the State of Palestine by the illegal use of force

Israel the Occupying Power and sanctioned by the Israeli High Court of Justice (lsquoHCJrsquo)

systematically expands its settlement regime and tampers with the demographic

territorial integrity and legal composition of the territory it occupies In doing so it

overlooks the best interest of the Palestinian protected persons under its occupation

while protecting the interests of the illegal settlers

170 This is evident in the HCJrsquos rulings and approval of human rights violations

including for example in the Abu Safyeh v Minister of Defense (the very same case referred

by Israel the occupying power in its response to the complaint) 140 where the HCJ denied

the applicability of the Fourth Geneva Convention to the occupied territory and

maintained a selective position regarding the applicability of international humanitarian

law thereby undermining the collective and individual rights of the Palestinian people

In this case the HCJ stated that

ldquoThe military commanderrsquos obligation to ensure the lives and safety of Israelis

living in the area under belligerent occupation stems not only from his duty

pursuant to Article 43 of the Hague Regulations but also as stated from

domestic Israeli law As has been ruled (in that case with respect to the legality

of constructing a section of the security fence) The military commanderrsquos

power to construct a separation fence includes the power to construct a fence

for the protection of the lives and safety of Israelis living in Israeli communities

[settlements] despite the fact that the Israelis living in the

Area do not constitute protected persons in the meaning of the term in

Article 4 of the 4th Geneva Convention This power originates in two sources

One is the military commanderrsquos power under Article 43 of the Hague

Regulations to ensure public order and safety hellip The second is Israelrsquos

obligation to protect the lives and safety of the Israeli civilians who reside

in the Area as enshrined in domestic Israeli lawrdquo 141

140 Note of the Permanent Mission of Israel to the United Nations in Geneva to Secretary-General of the United

Nations regarding the decision adopted by the Committee on the Elimination of Racial Discrimination of 04 May

2018 (03 August 2018) pp7-8

141 HCJ 215007 Ali Hussein Mahmoud Abu Safiya Beit Sira Village Council Head et 24 al v Minister of Defense

IDF Commander in the West Bank Binyamin Brigade Commander Shurat HaDin Israel Law Center et 119 al and

Fence for life (December 29 2009) para (21) available at httpwwwhamokedorgfiles20118865_engpdf

emphasis added

49

171 The ruling further gave the green light by describing Israeli measures taken

exclusively to protect the illegal settlerrsquos existences on the occupied territory of the State

of Palestine as a ldquolegal dutyrdquo

ldquoEven if the military commander acted against the laws of belligerent occupation

at the time he consented to the establishment of this or that settlement ndash and this

matter is not before us nor shall we express any opinion on it ndash this does not release him

from his duty under the laws of belligerent occupation themselves to protect the

life and dignity of every single Israeli settler Ensuring the safety of Israelis present in

the Area is cast upon the shoulders of the military commanderrdquo142

172 In other words the HCJ ruled that the protection of Israeli settlers overrides the

obligation including under CERD to respect and protect the rights of Palestinians

including those specified in the Fourth Geneva Convention

173 The same holds true when it comes to petitions challenging the illegal settlement

activity As early as 1977 the HCJ held that the general question of settlements is a

political question that is best left to the other branches of government to resolve and that

the Court should not intervene in the matter The HCJ subsequently confirmed its

position by declaring the illegal settlement activity to be a non-justiciable issue143 under

the pretext of it being a political question This position was reaffirmed clearly in its

ruling on the Bargil case where the HCJ stated

ldquoThe overriding nature of the issue raised [settlements] in the petition is blatantly

political The unsuitability of the questions raised in the petition for a judicial

determination by the High Court of Justice derives in the present case from a

combination of three aspects that make the issue unjusticiable intervention in

questions of policy that are in the jurisdiction of another branch of Government

142 Ibid para 38 143 HCJ Mararsquoabe v The Prime Minister of Israel (2005) 45 International Legal Materials 202 at para 19 D Kretzmer

The Occupation of Justice The Supreme Court of Israel and the Occupied Territories State University of New York

Press 202 pp22-24 43-44 78 YRonen ldquo Israel Palestine and the ICC - Territory Uncharted but Not Unknownrdquo

(2014) 12 Journal of International Criminal Justice 7 at pp24-25 D Kretzmer Symposium on revisiting Israelrsquos

settlements settlements in the supreme court of Israel

50

the absence of a concrete dispute and the predominantly political nature of the

issuerdquo144

The Court was also petitioned on the use of public land for settlements and it refused to

rule on grounds of lack of standing145 In other attempts the Peace Now movement

challenged in 1993 the legality of the actions of the Occupying Power with regard to

building settlements

174 The Court however once again dismissed the petition because it was based on a

non-justiciable issue and that it was

ldquo(hellip) absolutely clear that the predominant nature of the issue is political and it

has continued to be so from its inception until the presentrdquo146

The Court in yet another case ruled that only a political decision to withdraw from

territory would justify dismantling the settlements and requiring the settlers to relocate to

Israel147

175 Thus the HCJ facilitates the settlement enterprise that is discriminatory in nature

by providing Israel the Occupying Power with the legal tools to administer the settlersrsquo

illegal presence in the occupied territory The HCJ also ruled that the

ldquo(hellip) the military commander is authorized to construct a separation fence in the

area for the purpose of defending the lives and safety of the Israeli settlers in the

areardquo148

176 It thus allowed and still allow for the existence of two separate legal regimes

further undermining the CERD Committeersquos concluding observation which stated that

ldquoThe Committee is extremely concerned at the consequences of policies and

practices which amount to de facto segregation such as the implementation by the

144 HCJ 448191 Bargil v the Government of Israel (1993) See Justice Shamgar opinion para 3 145 HCJ 27784 Ayreib v Appeals Committee et al 40(2) PD 57 (1986) 146 HCJ 448191 Bargil et al v Government of Israel et al 47(4) PD 210 (1993) 147 HCJ 440092 Kiryat Arba Local Council v Government of Israel 48 (5) PD 587 (1992) HCJ 60678 Ayyub v

Minister of Defense 33 PD (2) 113 (Beth El case) (1978) HCJ 166105 Gaza Beach Regional Council et al v Knesset

of Israel et al 59 (2) PD 481 (2005) 148 HCJ 795704 Mararsquoabe v The Prime Minister of Israel (2005) para 19

51

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 populationrdquo149

177 If any judgment appears to be ruled in favour of international law and Palestinian

rights the ruling remains to be ineffective and not enforced A clear example of this can

be found in the HCJ 379902 Human Shields case mentioned in Israelrsquos response to the

Committee150 In its response Israel the Occupying Power manipulated the legal

discourse by using the term ldquoassistance ldquo instead of ldquoHuman Shieldsrdquo It is worth

noting although the judgment restrained the Israeli occupying forces from using human

shields the use of civilians as human shields and hostages continues as documented by

human rights organizations151

178 In other words where the HCJ may appear to rule in a manner consistent or

aligned with international law these rulings are not respected or implemented As such

resorting to local remedies in this connection would futile as evidenced by practice

179 In another alarming judgement that may be of particular interest to the

Committee the HCJ also failed to protect the rights of the Palestinian people to freedom

of peaceful assembly in direct contravention of the Committeersquos statement against

Israelrsquos use of force against peaceful demonstrators In that regard he Committee stated

that it was


CERDCISRCO14-16 (3 April 2012) para 24 150 Note of the Permanent Mission of Israel to the United Nations in Geneva to Secretary-General of the United


2018 (3 August 2018) p 8 151 Yesh Din Lacuna War crimes in Israeli law and in court-martial rulings(10 October 2013)available at

httpswwwyesh-dinorgenlacuna-war-crimes-in-israeli-law-and-military-court-rulings-3

52

ldquo[a]larmed by the disproportionate use of force (hellip) against Palestinian

demonstrators who have been taking part since 30 March in the called lsquothe Great

March of Returnrsquo in Gaza (hellip) [and that it was] [g]ravely concerned that many of

the persons who died or were injured were reportedly posing no imminent threat

at the time they were shotrdquo152

Specifically with regard to the issue of local remedies the Committee was

ldquo[d]eeply worried about (hellip) the absence of adequate accountability mechanisms

(hellip)rdquo153

180 Ten days after the Committeersquos statement the HCJ on 24 May 2018 however

rejected a petition by Israeli human right organizations concerning the wanton use of

force and live ammunition and the rules of engagement deployed against the peaceful

demonstrators In response the HCJ dismissed the petition and blindly accepted Israelrsquos

argument that the

ldquo(hellip) the soldiers are acting in accordance with the binding provisions of both

international law and domestic Israeli lawrdquo 154

181 This is clear evidence of the fact there are no effective local remedies available for

the protection of Palestinian rights

2 The Non-Independent Nature of the Israeli Judicial System

152 The Committee on the Elimination of All Forms of Racial Discrimination 2637th meeting Prevention of racial

discrimination including early warning and urgent action procedures(8 May 2018) available

httpswwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=23082ampLangID=E 153 Ibid 154 HCJ 300318 Yesh Din ndash Volunteers for Human Rights v Chief of Staff of the Israel Defense Forces Petition

submission date 15 April 2018 Petition status Rejected Yesh Din HCJ petition Revoke rules of engagement

permitting live fire at non-dangerous demonstrators near Gaza fence available at httpswwwyesh-dinorgenhcj-

petition-revoke-rules-engagement-permitting-live-fire-non-dangerous-demonstrators-near-gaza-fence

53

182 The HCJ is not independent as it has been placed under the responsibility of the

army the very same body that is supposed to be investigated155 The HCJ contravenes

with the independence and impartiality of courts under international law

183 The Israeli occupation forces must be subject to a civil branch of the State in order

to guarantee the close supervision of its actions However Israelrsquos responsibilities as an

Occupying Power under international law is exclusively delegated to the military system

and centralized in the hands of the Military Advocate General (lsquoMAGrsquo) as a legislative

executive and quasi-judicial body The legal advisor to the occupation forces is the head

of the military prosecution and is responsible for enforcing the law prosecuting

violations of international humanitarian law and the laws of armed conflict On

aggregate the role of the MAG as an investigative body undermines the independency

and impartiality of the Court by having the very same authority that investigates war

crimes committed in the occupied territory issue military orders and provide advice on

their implementation The structural deficiency and intrinsic lack of independence and

impartiality was noted by the United Committee of Experts when it concluded that

ldquo() the dual role of the Military Advocate General to provide legal advice to IDF

[occupation forces] with respect to the planning and execution of ldquoOperation Cast

Leadrdquo and to conduct all prosecutions of alleged misconduct by IDF soldiers

[occupation forces] during the operations in Gaza raises a conflict of interest given

the Fact-Finding Missionrsquos allegation that those who designed planned ordered

and oversaw the operation were complicit in IHL and IHRL violations This bears

on whether the military advocate general can be truly impartial ndash and equally

important be seen to be truly impartial ndash in investigating these serious

allegationsrdquo156

155 See eg The International Federation for Human Rights Report (hereinafter FIDH) Shielded from Accountability

Israels Unwillingness to Investigate and Prosecute International Crimes (September 2011) p 2 (ldquolegislative

(defining the armyrsquos rules of conduct) executive (providing lsquoreal timersquo legal counselling during military operations)

and quasi-judicial (deciding which investigations and prosecutions to pursue) ndash in the hands of one authority and

described it more precisely as centralizing three powers 156 UN Report of the Committee of Experts on Follow-up to Recommendations in the Goldstone Report

AHRC1550 23 Para 91 (hereinafter First Report of the Committee of Experts in follow-up to Goldstone)

(September 2010) See also the Second Report of the Committee of Experts on Follow-up to Recommendations in

the Goldstone Report AHRC1624 (hereinafter Second Report of the Committee of Experts in follow-up to

Goldstone) para 41

54

184 Israel the Occupying Power falsely claims that HCJ as a civilian court reviews

the decisions of the MAG In reality the HCJ is not able to conduct thorough and routine

supervision of the MAG because its competence and rules of procedure are only invoked

in exceptional cases157 The HCJrsquos role is limited in scope to decide whether the MAGrsquos

decision is plausible while a high threshold is imposed on the victimrsquos representative to

argue and prove that the MAGrsquos decision is flawed or a deviation from public interest158

The threshold is high because of the unavailability and the unlawful confidentiality of

the de-briefing The HCJ limitations also include the protracted nature of the

proceedings the inability to conduct an effective factual examination and the financial

burden159 Further the HCJ also affirmed it was not competent to rule on violations of

international humanitarian law when it stated that

ldquo(hellip) it is clear that this Court [HCJ] is not the appropriate forum nor does it have

the required tools for examining the circumstances of the incident in which the

deceased was killed (hellip) [t]hese questions mostly relate to the circumstances

under which the deceased was killed and whether they met the criteria established

in the targeted killings judgment These questions if and inasmuch as they can be

clarified should have been clarified by the professional forum which was to have

been established for this purpose although in the circumstances of the matter at

hand no such forum was established before our judgment in the targeted killings

case was delivered (hellip) [t]he petition is therefore dismissedldquo160

157 Benvenistirsquos report to the Turkel Commission p 24 HCJ 1066505 Shtanger v The Attorney General16 July

2006) ldquohellipHCJ intervention is ldquolimited to those cases in which the Attorney Generalrsquos decision was made in an

extremely unreasonable matter such as where there was a clear deviation from considerations of public interest a

grave error or a lack of good faithrdquo HCJ 455094 Anonymous v Attorney-General et al PD 49(5) 859 cited by the

State Attorneys Office in HCJ 879403 Yoav Hess et al v Judge Advocate General et Al ldquoldquothe unique characteristics

of active operations sometimes constitute considerations negating the presence of a public interest in the instigation

of criminal proceedings even if criminal liability is presentrdquo 158 See eg FIDH Report pp 4 (ldquoThe decision to open an investigation or to indict is made under the broad discretion

of the MAG and States Attorney General especially when the decisions are based on an examination of the evidence

HCJ 455094 Anonymous v Attorney-General et al PD 49(5) 859 cited by the State Attorneys Office in HCJ

879403 Yoav Hess et al v Judge Advocate General et alThe Statersquos decision as noted by Deputy Chief Justice

Rivlin states ldquohellip normally falls within the lsquomargin of appreciationrsquo that is afforded to the authorities and restricts

almost completely the scope of judicial intervention I was unable to find even one case in which this court intervened

in a decision of the Attorney General not to issue an indictment on the basis of a lack of sufficient evidencerdquo 159 IDI Shany Cohen report to Turkel Commission pp 91- 102 160 HCJ 47402 Thabit v Attorney General (30 January 2011)

55

3 The Legitimization of Human Rights Violations within the National Law

185 Israeli national law legitimizes human rights violations against Palestinians The

Israeli Law does not include all acts considered as grave racial discrimination On the

contrary it has been an instrument of oppression discrimination and segregation A

stark example of the lawrsquos employment for discrimination is the recent so-called ldquoBasic

Law Israel-The Nation State of the Jewish Peoplerdquo

186 On 19 July 2018 the Israeli Knesset adopted the so-called ldquoBasic Law Israel - The

Nation State of the Jewish Peoplerdquo (ldquoBasic Lawrdquo) The Israeli Basic Law directly violates

international law relevant UN resolutions and international humanitarian law

provisions especially by its de jure extraterritorial application to the occupied territory

of the State of Palestine

187 The ldquoBasic Lawrdquo states that 161

ldquoExercising the right to national self-determination in the State of Israel is

unique to the Jewish peoplerdquo

thus excluding the Palestinian right to self-determination an erga omnes right The

ldquoBasic Lawrdquo also stipulates that

ldquo[a] greater united Jerusalem is the capital of Israelrdquo

also enshrining the illegal annexation of Jerusalem with the aim of creating and

maintaining illegitimate facts consequently violating the principle of non-annexation

and therefore altering the demographic and legal compositions of the occupied territory


188 Further the ldquoBasic Lawrdquo stipulates that

ldquo[t]he state views the development of Jewish settlement as a national value

and will act to encourage it and to promote and to consolidate its

establishmentrdquo

161 lsquoBasic Law Israel as the Nation-State of the Jewish Peoplersquo available at

httpsknessetgovillawsspecialengBasicLawNationStatepdf

56

This article is a manifestation of the deliberate Israeli state policy to violate international

law especially Article 49 of the Fourth Geneva Convention relative to the Protection of

Civilian Persons in Time of War which states that

ldquo[t]he Occupying Power shall not deport or transfer parts of its own

civilian population into the territory it occupiesrdquo

By incorporating the above-mentioned text in its ldquoBasic Lawrdquo Israel the occupying

power is also legitimizing and perpetrating a war crime in contravention of Article 8 (2)

(b) (viii) of the Rome Statute

189 By adopting the ldquoBasic Lawrdquo Israel the Occupying Power expressly declared that

violating international law is a state policy to achieve Jewish demographic dominance

by establishing maximum de facto control over the occupied territory of the State of

Palestine This confirms the underlying criminal strategies and policies of successive

Israeli governments towards the cleansing of the Palestinian people from their land In

this regard the HCJ further confirmed it role as a tool of oppression and discrimination

when on 30 December 2018 it dismissed a petition by an Israeli organization and Israeli

parliament members calling for the rejection of the ldquoBasic Lawrdquo162

190 The ldquoBasic Lawrdquo has severe consequences for Palestinians and non-Jewish

residents under Israeli control including Israeli citizens of Palestinian descent By

considering Judaization as an Israeli national value the Israeli government could justify

the forcible transfer of populations with limited ways of challenging unequal access to

land housing or other services

191 Finally given the national lawrsquos explicit bias against Palestinian rights and in light

of the demonstrable complicity of the HCJ in Israeli violations of the CERD the

exhaustion of local remedies is rendered ineffective and futile

1 Other Impediments

162 Adalah Israeli Supreme Court refuses to allow discussion of full equal rights amp state of all its citizens bill in

Knesset (30 December 2018) available at httpswwwadalahorgencontentview9660

57

192 The Military law system is inaccessible to Palestinian victims who are de facto

unable to file complaints with the Military Police Investigation Unit (lsquoMPIUrsquo) directly

and must rely on human rights organizations or attorneys to file the complaints on their

behalf 163 The MPIU has no basis in the occupied West Bank and Palestinian nationals

are not allowed to enter Israel without a special permit As such the statements are

usually collected in the so-called ldquoIsraeli District Coordination Officesrdquo164 If received the

processing of each complaint is unreasonably prolonged so that often enough soldiers

who are the subject of the complaint are no longer in active service and under military

jurisdiction 165

193 Other impediments faced by petitioners at the preliminary stage of the

proceedings are (i) excessive court fees and guaranties required from claimants and (ii)

the prevention of witnesses from traveling to court In addition lawyers cannot travel

from or to the occupied Gaza Strip to represent or meet their clients166

194 In addition to the payment of court fees the courts require the payment of a court

insuranceguarantee (set at a minimum of 10000 NIS but is usually much higher

reaching to over a 100000 NIS in some cases equivalent to $28000) before the case can

be followed Article 519 of the Israeli Civil Code grants the HCJ the right to request

payment of a guarantee before the case begins to cover the expenses of the parties in the

event that the case is lost which is only applied against Palestinians167

195 For these reasons Israeli human rights organizations and lawyers such as

BrsquoTselem decided in May 2016 that it would no longer forward complaints to the military

law enforcement system including the HCJ and that

ldquo(hellip) it would stop playing a part in the systemrsquos charaderdquo168

The organization also declared

163 BrsquoTselem No Accountability(11 November 2017) available at httpswwwbtselemorgaccountability 164 BrsquoTselem The Occupationrsquos Fig Leaf Israelrsquos Military Law Enforcement System as a Whitewash Mechanism

p17 available at httpswwwbtselemorgpublicationssummaries201605_occupations_fig_leaf 165 BrsquoTselem No Accountability(11 November 2017) available at httpswwwbtselemorgaccountability 166FIDH Shielded from Accountability Israels Unwillingness to Investigate and Prosecute International Crimes

(September 2011) p 24 167 Ibid p25 168 BrsquoTselem No Accountability(11 November 2017) available at httpswwwbtselemorgaccountability

58

ldquoThis decision was made after a very long process of careful deliberation by

BrsquoTselem and was based on knowledge BrsquoTselem had gained over many years

from hundreds of complaints forwarded to the military scores of MPIU

investigation files and dozens of meetings with military law enforcement officials

All this information has helped BrsquoTselem gain a great deal of experience and given

it vast and detailed organizational knowledge regarding how the system works

and the considerations that guide it It is the sum of this knowledge that has

brought BrsquoTselem to the realization that there is no longer any point in pursuing

justice and defending human rights by working with a system whose real function

is measured by its ability to continue to successfully cover up unlawful acts and

protect perpetrators Ever since BrsquoTselem has continued to advocate

accountability but has been doing so without applying to the military justice

system BrsquoTselem continues to document incidents collect testimonies and

publicize its findings It goes without saying that the authoritiesrsquo duty to

investigate remains as it was It also goes without saying that the authorities

continue to systematically and overwhelmingly abdicate this responsibilityrdquo169

196 The conclusions of BrsquoTselem are similar to the records of Yesh Din another

prominent Israeli human rights organization According to Yesh Din records out of 413

incidents of ideologically motivated offenses documented by the organization between

2013 and 2015 30 percent of the victims explicitly specified that they were not interested

in filing a complaint with the Israeli authorities Further the fact that so many

Palestinians refrain from filing a complaint with the Occupying Powerrsquos police has been

well known to the law enforcement authorities for years and is cited in every single one

of the three formal Israeli reports that address law enforcement in the occupied territory

of the State of Palestine The Karp Report the Shamgar Commissionrsquos Report on the

massacre at the Tomb of the Patriarchs in Hebron and Talia Sassonrsquos Outpost Report170

Nevertheless Israel the Occupying Power has done absolutely nothing to ease the

process for Palestinian nationals to seek remedy in its Courts

197 Similarly prominent Israeli lawyers have expressed disdain towards the HCJ and

Israeli judiciary system For example Michael Sfard stipulated that

169 Ibid 170 Yesh din Avoiding complaining to police facts and figures on Palestinian victims of offenses who decide not to

file complaints with the police available at httpswwwyesh-dinorgenavoiding-complaining

59

ldquoThe Israeli occupation has equipped itself with a full suit of legal armor from the

very beginning The military government made sure that every draconian

authority and injurious power is codified in orders procedures and protocols

maintaining the appearance of a system that operates in an orderly rational

fashion The architects of the occupationrsquos legal system knew that the law has a

normalizing legitimizing effect They knew even though some of the worst crimes

in history were perpetrated with the help of the law and in accordance with it a

regime predicated on laws that define general norms and seem to ensure that

people are not left to the whims of officials will acquire an air of decencyrdquo171

When representing Palestinian victims Sfard explained

ldquoThe experience we have gained through close contact with these abuses and their

victims and as seasoned applicants to all Israeli authorities primarily the High

Court of Justice in an attempt to remedy the violations has led us to this two-fold

conclusion On one hand the High Court of Justice is not the right tool and cannot

achieve what we aim to do There is real concern that litigation has in fact

buttressed human rights abuses particularly thanks to the public legitimacy it

generates which leads us to estimate that it is actually harmfulrdquo172

198 Most recently BrsquoTselem the prominent Israeli human rights organization

published a report highlighting the HCJrsquos role in house demolitions and dispossession of

Palestinian civilians including discriminatory planning regulations The report titled

ldquoFake Justicerdquo concluded that

ldquoIn hundreds of rulings and decisions handed down over the years on the

demolition of Palestinian homes in the West Bank the justices have regarded

Israeli planning policy as lawful and legitimate nearly always focusing only on

the technical issue of whether the petitioners had building permits Time and time

again the justices have ignored the intent underlying the Israeli policy and the fact

that in practice this policy imposes a virtually blanket prohibition on Palestinian

construction They have also ignored the policyrsquos consequences for Palestinians

171 Michael Sfard The Wall and the Gate Israel Palestine and the Legal Battle for Human Rights (2018) p16

172 Ibid p 24

60

the barest ndash sometimes positively appalling ndash living conditions being compelled

to build homes without permits and absolute uncertainty as to the futurerdquo173

199 This report further demonstrates the futility of resorting to local remedies whose

design and practice have consistently been unfavourable to and discriminatory against

their rights

200 On the whole therefore the State of Palestine has demonstrated that the burden

of proof lies with Israel the Occupying Power to show that effective local remedies exist

that could address the violations of CERD committed on Palestinian soil and that Israel

has not shouldered that burden

201 It has also been conclusively shown that given the systematic character of Israelrsquos

violations of CERD amounting to an lsquoadministrative practicersquo the exhaustion of local

remedies is not required anyhow

202 Besides given the prevailing circumstances on the ground and the inability of

Palestinian victims of racial discrimination in a situation of belligerent occupation to

have access to Israeli courts the exhaustion of local remedies may not be required

203 Finally even if assuming arguendo that as a matter of principle Palestinian victims

had access to the Israeli court system the State of Palestine has demonstrated that Israeli

courts have consistently upheld the discriminatory policies described in the interstate

complaint brought by the State of Palestine as amounting to violations of CERD

204 In particular the Israeli High Court of Justice has time and again considered

issues related to the illegal Israeli settlements which is a policy that lies at the very heart

of Israelrsquos violations of CERD as being a non-justiciable political question not subject to

its judicial scrutiny It has also upheld time and again that the whole set of other

discriminatory policies including inter alia but not limited to the discriminatory

criminal justice system as well as the discrimination when it comes to matters of family

life in particular family reunification access to religious sites planning policy separate

road systems land evictions and house demolitions Accordingly local remedies even to

the extent they do exist as a matter of principle have proven to be wholly ineffective as

far as the violations of CERD are concerned that have been laid out in the interstate

complaint brought by the State of Palestine against Israel under Article 11 CERD

173 Report Fake Justice httpswwwbtselemorgpublicationssummaries201902_fake_justice

61

PART IV CONCLUDING REMARKS

205 The State of Palestine respectfully submits that its interstate communication

brought under Article 11 CERD in the exercise of its rights as a contracting party of CERD

constitutes a litmus test for the effectiveness of the supervisory mechanism established

by the Convention

206 The Committee will have to decide whether the attempt by Israel to inhibit the

Article 11 CERD procedure from being triggered should stand or whether instead the

Committee ought not to interpret the Convention in light of its object and purpose as a

living instrument meant to protect a whole population from the scourge of a

systematised policy of racial discrimination

207 The State of Palestine has conclusively shown that the Committee has jurisdiction

to entertain the request and that its request is admissible

208 In a vain effort to avoid scrutiny of its discriminatory policies taking place on the

territory of the State of Palestine by the Committee under Article 11- 13 CERD Israel

attempts to reinterpret the Convention as a mere network of bilateral obligations

disregarding its jus cogens and erga omnes character

209 The State of Palestine has already abundantly shown that already on technical

grounds these arguments are not convincing and hence cannot stand What is more

however is that the Committee in deciding the matter must be aware of the fundamental

nature and character of CERD As the International Court of Justice had already put it

as early as 1951 so eloquently with regard to the 1948 Genocide Convention when it

comes to the interpretation of a treaty of such a character

ldquoThe objects of such a convention must also be considered The Convention was

manifestly adopted for a purely humanitarian and civilizing purpose It is indeed

difficult to imagine a convention that might have this dual character to a greater

degree since its object on the one hand is to safeguard the very existence of certain

human groups and on the other to confirm and endorse the most elementary

principles of morality In such a convention the contracting States do not have any

interests of their own they merely have one and all a common interest namely

the accomplishment of those high purposes which are the raison decirctre of the

62

convention Consequently in a convention of this type one cannot speak of

individual advantages or disadvantages to States or of the maintenance of a

perfect contractual balance between rights and duties The high ideals which

inspired the Convention provide by virtue of the common will of the parties the

foundation and measure of all its provisionsrdquo174

210 The State of Palestine submits that this understanding must also inform the

interpretation of CERD as being of the same character as the Genocide Convention

including its Articles 11-13 CERD

211 Palestine stands ready to provide any further information if needed and looks

forward to the oral hearing envisaged by the Committee for its forthcoming session

174 ICJ Reservations to the Convention on Genocide Advisory Opinion IC J Reports 1951 p 15 (23) emphasis

added




75 In its original communication the State of Palestine pointed to the undisputed fact that Israel has not entered a reservation to the Article 11 CERD procedure However in its Note of 3 August 2018 Israel the Occupying Power stated that

G In any case Article 11 CERD does not require a treaty relationship as between the State parties concerned

110 The State of Palestine has thus shown once again that a contractual bond under CERD exists as between Israel and the State of Palestine or at the very least that Israel is barred for two mutually reinforcing reasons from relying on such alle

2

presented were solely directed at the discriminatory and illegal policies and practices of

the government of Israel the Occupying Power Notably the State of Palestinersquos

arguments as to the bad faith by Israel - on the substance of which the State of Palestine

will revert back later in more detail - constituted a purely legal argument rooted in legal

principles and expressed in legal language pertaining to Statehood and the ongoing

illegal occupation of the territory of the State of Palestine by Israel the Occupying Power

1

5 The State of Palestine has however noted with interest that as part of these unfounded

political allegations Israel has inter alia also accused the State of Palestine of a

rdquo(hellip) gross violation (hellip) of the norms embodied in the Convention on the

Elimination of all forms of Racial Discriminationrdquo2

This seems to imply that even in Israelrsquos own view the State of Palestine is in a position

to violate the Convention vis-agrave-vis Israel which in turn to state the obvious also

presupposes that even from Israelrsquos own perspective the State of Palestine must be a

contracting party thereof and in a treaty relationship with Israel and thus its actions can

be measured against the obligations of State parties

6 Within its obligations as a State Party of CERD the State of Palestine however stands

ready to fully engage with the substance of those unfounded allegations at any time

should Israel the Occupying Power exercise its right to bring an interstate complaint

against the State of Palestine under Article 11 CERD either by way of a counter-claim or

by way of a separate complaint

7 The State of Palestine also notes once again with regret Israelrsquos attempts to threaten the

Committee by considering the complaint lodged by the State of Palestine and the legal

arguments therein would in its view

ldquo(hellip) undermine [the Committeersquos] status as an independent and impartial

institution and ultimately harm efforts to enhance compliance with the

Conventionrdquo3

1 Comments on Israelrsquos Note relating to the State of Palestinersquos complaint under Article11 CERD (30 August 2018)

p 21 [hereinafter State of Palestinersquos comments] 2 Note of the Permanent Mission of Israel to the United Nations in Geneva to the Secretariat of the United Nations (14

January 2019) p18 [hereinafter Israelrsquos observations] 3 Israelrsquos observations p 3

3


















Territory5


of historyrdquo6










4


complaint at hand























5
















CERD





in this regard









6





















proceedings been



7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







3


















Territory5


of historyrdquo6










4


complaint at hand























5
















CERD





in this regard









6





















proceedings been



7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







4


complaint at hand























5
















CERD





in this regard









6





















proceedings been



7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







5
















CERD





in this regard









6





















proceedings been



7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







6





















proceedings been



7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







7





State of Palestine
























8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







8






Applicationrdquo23



of Nicaragua 24







therefore


Applicationrdquo26







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







9

given that

























10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







10



























11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







11






















evidence








12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







12









I General remarks




















para 168

13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







13


CERD


























objection

14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







14










Palestine




law it relies on










Palestine








15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added







15


to the case at hand




























16












UNESCO]rdquo48


















17





Vienna Formula is






















contracting party



18








Convention
























19




























20















relations60
















21


the Committee

























22




Rwanda)68







finding is



















23




relevant factor






























24


















the Committee


Convention







available at



25







interpretations

























26



























27


































28











that
















29
































30


parties concerned




treaty relationship























31















by Italyrdquo88















32































33


















A Introduction


with










34






lies with Israel


















but that besides



35












accordingly states





of the caserdquo












92

36









remediesrdquo99








effectiverdquo100














37



specified






























38





nationals



























39









acknowledged that









such circumstances







40





























41

























1999)rdquo116






42





required117





while


















43






























44



policyrdquo124

























45




complainant


criteria including


violation












disregard131








46






























47





























48































2018 (03 August 2018) pp7-8




emphasis added

49






























50


issuerdquo144











Israel147






areardquo148








51


























that it was






52








(hellip)rdquo153





argument that the












53
























allegationsrdquo156









Goldstone) para 41

54


































55

























establishmentrdquo



56

























1 Other Impediments



57









jurisdiction 165



















58

































59






























172 Ibid p 24

60





their rights



























61





by the Convention


























62












added





