Breaking new ground – Again? The CERD Committee’s decision on admissibility in Palestine v. Israel

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After its decision on jurisdiction of December 2019 with regard to the inter-State communication brought by Palestine against Israel (CERD/C/100/5) under Art. 11 (1) Convention on the Elimination of All Forms of Racial Discrimination (CERD), the CERD Committee now declared said communication admissible. In this remarkable decision, the Committee found that the prior exhaustion of domestic remedies had not been required in view of prima facie evidence of a “generalized policy and practice” of racial discrimination on the part of Israel (CERD/C/103/R.6).

Background to the inter-State communication of Palestine v. Israel

Art. 22 CERD allows State Parties to CERD to bring a case before the ICJ, while Arts. 11 – 13 CERD provide for an inter-State communications procedure before the CERD Committee, and subsequently  before an ad hoc Conciliation Commission. As readers of this blog will recall, Palestine initiated proceedings under Art. 11 (1) CERD against Israel in 2018. In its initial communication to the Committee, Palestine alleged violations of Arts. 2, 3 and 5 CERD on the part of Israel within the Occupied Palestinian Territories – the gravest allegation being that of a violation of Art. 3 CERD (prohibition of racial segregation and apartheid). Taken together with two cases initiated by Qatar against Saudi-Arabia and the United Arab Emirates (UAE) respectively, these three communications mark the first ever inter-State cases under any of the universal human rights treaties.

While in the two Qatari cases the Committee simultaneously decided on the questions of jurisdiction and admissibility already in August 2019 (CERD/C/99/3, CERD/C/99/4, CERD/C/99/5, CERD/C/99/6), it took some more time for the Committee to render a decision on these issues with regard to the Palestinian communication. It was only in December 2019 during its 100th session that the CERD Committee declared to have jurisdiction in the case. In this noteworthy decision, it found that even in the absence of bilateral treaty relations between two State Parties the inter-State procedure may be initiated as Arts. 11 – 13 CERD provide for “a unique instrument to settle inter-State disputes, set up for the common good of all State Parties” (CERD/C/100/5, para. 3.41). It was then not until April 2021 that the Committee rendered its decision on the admissibility of the Palestinian communication during its 103rd session (CERD/C/103/R.6). This delay may be explained by the very technical nature of the jurisdictional issue at question, the Covid-19 situation which impaired the functioning of the CERD Committee, as well as the fact that the Respondent State had gained knowledge of an inter-Committee Memorandum drafted by the United Nations Office of Legal Affairs (OLA).  Presumably with regard to the latter, the CERD Committee decided that the background documents concerning the communication, including said OLA memorandum, should be made public (available here). Remarkably, a similar publication of background documents did not take place with regard to the two Qatari cases, leaving open the issue of the Committee’s consistency in its interpretation of Art. 35 (2) of its Rules of Procedure, governing the distribution of Committee documents. The current admissibility decision has been adopted with the participation of ten Committee members while four members indicated that they were not to participate in the drafting and the adoption of the decision and another four members were absent.

Issue of the exhaustion of domestic remedies

In its recent admissibility decision, the CERD Committee now had to take a position on the question of the exhaustion of domestic remedies. According to Art. 11 (3) CERD, the Committee is required to ascertain whether “all available domestic remedies have been invoked and exhausted in the case, in conformity with international law”. A comparable provision is found in almost every other human rights treaty providing for an inter-State procedure (see Art.  41 (1) (c) CCPR; Art. 21 (1) (c) CAT; Art. 10 (1) (c) CESCR-OP; Art. 76 (1) (c) CMW; Art. 14 1962 Protocol to the UNESCO Convention against Discrimination in Education; Art. 46 (1) (a) ACHR; Art. 50 ACHPR; Art. 35 (1) ECHR). Further, the prior exhaustion of domestic remedies constitutes an established admissibility requirement in individual communications procedures (see e.g. Art. 14 (7) (a) CERD; Art. 5 (2) (b) CCPR-OP 1; Art. 35 (1) ECHR), as well as in inter-State proceedings under customary international law (see Art. 44 (b) Articles on State Responsibility).

The origins of the domestic remedies rule lie in the regime of diplomatic protection and later found its way into various human rights treaties (see D’Ascoli/Scherr). It is an expression of the principle of subsidiarity in international proceedings. Prior to the initiation of international proceedings, the Respondent State must be given the opportunity to remedy the alleged wrongful conduct through its domestic administrative and judicial machinery (see Interhandel (Switzerland v. United States of America), Judgment (Preliminary Objections), p. 27).

According to the established jurisprudence of various human rights bodies, these remedies must not only be available, but must also be effective in order to justify its prior exhaustion (e.g. L.R. et al. v Slovak Republic, CERD/C/66/D/31/2003 (2005), para. 6.1; Gilberg v. Germany, CCPR/C/87/D/1403/2005, para. 6.5). The CERD Committee assumes that the non-exhaustion of domestic remedies must be raised as an objection by the Respondent State in inter-State cases. Thus, in its admissibility decision in Qatar v. Saudi Arabia, the Committee did not examine the exhaustion of domestic remedies proprio motu because the objection had been raised belatedly by Saudi Arabia. Accordingly, the Committee saw no grounds “to declare it [the communication] inadmissible for non-exhaustion of domestic remedies” (CERD/C/99/6, para. 21). However, when the non-exhaustion of domestic remedies is alleged by the Respondent (see for instance the arguments of Israel, CERD/C/103/R.6, paras. 31 – 52), the question of possible exceptions to this rule arises.

Exception from Art. 11 (3) CERD in case of a “generalized policy and practice”

CERD expressly provides for an exception to the domestic remedies rule in the second sentence of Art. 11 (3) CERD when the “application of the remedies is unreasonably prolonged”. However, as the domestic remedies must be invoked and exhausted “in conformity with international law”, further exceptions to the rule may be applicable.

Admissibility decision in Qatar v. UAE

Accordingly, the Committee had already established in its admissibility decision regarding Qatar v. UAE that the “exhaustion of domestic remedies is not a requirement where a ‘generalized policy and practice’ has been authorized” (CERD/C/99/4, para. 40). At the same time, the Committee decided “that the exception of the non-exhaustion of domestic remedies has to be examined jointly with the examination of the merits of the communication” (CERD/C/99/4, para. 41) due to the “multitude of factual elements which can only be verified at the stage of the examination of the merits of the communication” through the ad hoc Conciliation Commission (CERD/C/99/4, para. 40). This pronouncement is remarkable for two reasons. First, the Committee clarifies the distribution of tasks between itself (examination of the preliminary questions of jurisdiction and admissibility) and the ad hoc Conciliation Commission (examination of the merits) in the inter-State communications procedure (see Keane). Secondly, and rather surprisingly, the Committee relieves itself entirely of the task of examining the existence of a “generalized policy and practice”. This runs counter to the wording of Art. 11 (3) CERD, according to which it is the Committee (rather than the Conciliation Commission) which is tasked to ascertain whether domestic remedies have been invoked and exhausted in the case.

Admissibility decision in Palestine v. Israel

In its admissibility decision regarding Palestine v. Israel, the Committee now had the opportunity to further elaborate on the exception to Art. 11 (3) CERD in case of a “generalized policy and practice”” Palestine had argued inter alia “that the exhaustion of local remedies is not required given the respondent’s violations of the Convention is an administrative practice” (CERD/C/103/R.6, para. 19).

First, the Committee recalls the well-established jurisprudence of human rights bodies on the requirement of prior exhaustion of domestic remedies in inter-State cases (CERD/C/103/R.6, para. 62). Indeed, an exception to the domestic remedies rule has been long-established under the ECHR with respect to inter-State cases, where an “administrative practice” of the Respondent State is alleged of (e.g. Georgia v. Russia (II), Application no. 38263/08, Judgment (Merits), para. 98 et seq). In line with this, the Inter-American Commission on Human Rights also assumes an exception to the domestic remedies rule to exist in inter-State proceedings provided the “alleged existence of a generalized practice of discrimination” is the subject of the complaint (Nicaragua v. Costa Rica, Report No. 11/07, paras. 253 et seq.). Interestingly, the CERD Committee does not quote the ICJ which similarly found an exception to the domestic remedies rules with regard to the procedure initiated under Art. 22 CERD where the Applicant State “does not adopt the cause of one or more of its nationals, but challenges, on the basis of CERD, the alleged pattern of conduct” of the Respondent State (Ukraine v. Russian Federation, Judgement (Preliminary Objections), para. 130). Following the ECHR, the CERD Committee finds that such a generalized policy and practice consists of a repetition of acts and an official tolerance thereof (CERD/C/103/R.6, para. 62).

In its admissibility decision in Palestine v. Israel the Committee then turns to the question of proof with regard to the existence of such a “generalized policy and practice”. According to the Committee, the mere allegation of the existence of a “generalized policy and practice” does not suffice to pass the necessary evidentiary threshold. Rather prima facie evidence of such a practice must be established (CERD/C/103/R.6, para. 63). Interestingly, in paragraph 64 of the decision the Committee then recalls its recent Concluding Observations on Israel under Art. 9 CERD (CERD/C/ISR/CO/17-19). In particular, the Committee highlights its observations on the “maintenance of laws which discriminate against Arab Citizens and Palestinians in the Occupied Palestinian Territory”, “the lack of detailed information on racial discrimination complaints”, “obstacles in accessing justice”, “continuing segregation between Jewish and non-Jewish communities”, as well as reports “that the [Israeli] judiciary might handle cases of racial discrimination by applying different standards based on the alleged perpetrator’s ethnic or national origin”. Recalling these observations, taken together with the submissions of the State Parties, the Committee was satisfied that the threshold of prima facie evidence as to the existence of a “generalized policy and practice” of racial discrimination was fulfilled. Consequently, the rule on the exhaustion of domestic remedies was not to apply (CERD/C/103/R.6, para. 64). 

Although this decision must be seen as having reached the correct result, the way in which the Committee establishes the existence of a “generalized policy and practice” remains rather vague. Instead of examining the existence of a “repetition of acts” and an “official tolerance” in line with the requirements laid down in the ECHR-jurisprudence on the existence of an “administrative practice”, the Committee raises questions as to the availability and effectivity of remedies within the Israeli judicial system. Further, the decision does not provide an answer as to the burden of proof with regard to the existence of such a “generalized policy and practice”.

With this decision, the CERD Committee thus further establishes an exception to the domestic remedies rule in inter-State cases where it is not a single incident of a human rights violation, but rather a structural deficit, that is being complained of. The underlying rationale to this exception seems to be convincing, given that domestic legal actions undertaken by single individuals do not provide a sufficient remedy for structural deficiencies in the implementation of CERD (or any other human rights treaty). However, since inter-State cases dealing with human rights issues will often, if not almost always, ponder upon structural issues, this exception will often apply. This renders the domestic remedies rule a rather insignificant admissibility requirement in inter-State cases.

As a consequence of this decision, the examination of the facts in Palestine v. Israel is now the task of the ad hoc Conciliation Commission which is yet to be established. As domestic remedies had not to be exhausted in the case, the Commission cannot have recourse to facts previously established by domestic bodies. While Art. 12 (8) CERD provides that the “information obtained and collated by the Committee shall be made available to the Commission, and the Commission may call upon the States concerned to supply any other relevant information”, a more far-reaching competence of the Commission to gather evidence on its own motion is rather questionable. However, just like the CERD Committee in its admissibility decision, the Commission will be able to draw on the CERD Committee’s Concluding Observations on Israel.

The way ahead

The Chair of the CERD Committee will now have to appoint an ad hoc Conciliation Commission. This Commission will be composed of five members which may be appointed either with (Art. 12 (1) (a) CERD) or without (Art. 12 (1) (b) CERD) the consent of the Parties to the dispute.  However, following the Committee’s admissibility decision, it does not seem likely for Israel to take part in further proceedings (see here). This expectable non-participation in the proceedings on the part of Israel also renders the envisaged conciliatory function of the Commission doubtful in this case. But be that as it may, the functions of the Commission are not limited to availing its good offices to the Parties. Rather, the Commission is enabled to draw up a report consisting of its findings of facts relevant to the case and to formulate recommendations as to the amicable solution of the matter on the basis of the Convention. This report will eventually be made available to all the other 180 State Parties to the Convention (Art. 13 (2) CERD) and arguably to the general public as well (Schwelb, 1041). As the examination of the two Qatari communications is currently suspended (see the decisions of the respective ad hoc Commissions here and here), the case before the Commission examining the Palestinian communication will most likely be the first inter-State communication decided on the merits by a UN human rights treaty body (see Keane). More generally, the fact that so far all three inter-State cases brought to the attention of the CERD Committee had a positive outcome may further encourage other State Parties to take recourse to this mechanism (see Thornberry, 309 (321)).

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Nicolas Boeglin says

June 2, 2021

Dear Professor Eiken:

Congratulations for this excellent post on this CERD' s decision poorly reported in medias and specialized sites on Human Rights.

I take the oportunity to refer you to a recent HRW report (April 27, 2021) on apartheid and persecution in Palestine entittled: "A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution" available at:

https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution

An a recent note I wrote on recent UN HRC resolution related to the creation of a new mechanism to investigate Israel military actions in Gaza since April 13 and before:

http://derechointernacionalcr.blogspot.com/2021/05/exacciones-de-israel-en-gaza-consejo-de.html

Yours sincerely

Nicolas Boeglin