Palestinian civil society recommendations for a UN mechanism to end and punish Israel’s apartheid

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17 October 2024


Background:

The July 2024 ICJ advisory opinion, which found Israel in violation of the prohibition against apartheid in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD),  offers an unprecedented opportunity to bring forward the establishment of a mechanism to address Israel’s apartheid against the entire Palestinian people.

Palestinian, international, and Israeli human rights organizations have for years now recognized Israel’s regime over Palestinians as including the crime against humanity of apartheid. The BDS movement, led by the largest coalition in Palestinian society, has consistently since its launch in 2005 regarded Israel’s regime against the Indigenous Palestinian people as constituting settler-colonialism, apartheid and military occupation.

On 13 September 2024, the UNGA adopted resolution A/ES-10/L.31/Rev.1, which addresses this violation of Article 3 of CERD, among others. It requests the Secretary General to present proposals, in consultation with the United Nations High Commissioner for Human Rights and Member States with relevant experience and expertise, for the establishment of a mechanism to follow up on it.

The UN Committee on the Exercise of the Inalienable Rights of the Palestinian People initiated a discussion in October to explore the (re)establishment of a UN mechanism that includes the “Group of 3” and the UN Special Committee Against Apartheid (UNSCAA). The revival of the UNSCAA has been a main objective of the BDS movement, particularly since 2020, and the movement has consistently and effectively campaigned and advocated for its establishment.

There is broad consensus among Palestinians on the demand to establish the UNSCAA which was reflected in the Unified Palestinian Call to Dismantle Settler Colonialism and Apartheid. The Unified Palestinian civil society call with regards to sanctions on Israel following the ICJ advisory opinion reiterated the demand:

  • On the UN General Assembly to instruct the UN organs, including the UN Secretary General, to enact effective accountability mechanisms within the UN system to address not only Israel’s unlawful presence in the OPT, but also its policies of segregation and apartheid; its violation of UNGA 194 regarding the right of Palestinian refugees to return and receive reparations; its annexation of Palestinian territory; and its denial of the right of self-determination. These denied rights affect the entire Palestinian people.
  • On the General Assembly to reconstitute the UNSCAA and UN Centre Against Apartheid; to bring Israel’s segregation and apartheid against the entire Palestinian people (including refugees) to an end; to ensure that Israel “repeal[s] all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the OPT”.

In the Global South, in particular, former Presidents, MPs, jurists and diplomats from Asia, Africa and Latin America have endorsed the demand for activating the UNSCAA to address Israel’s apartheid over

the entire Palestinian people.

The obligation to end apartheid

States and the UN as such have a legal duty to take effective measures to end apartheid anywhere:

  • The Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, religion or national origin.
  • The International Convention on the Elimination of All Forms of Racial Discrimination mandates states to particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.
  • The International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court define apartheid as a particularly pernicious system of racial domination that is maintained through institutionalized racial segregation, systematic oppression and denial of fundamental rights. The Convention underlines that apartheid violates the principles of  international law, in particular the purposes and principles of the Charter of the United Nations, and constitutes a serious threat to international peace and security.
  • The United Nations General Assembly (UNGA) has condemned apartheid as an inherent violation of the right to self-determination under customary public international law as evident in its resolutions 2649 of 30 November 1970, 2775E of 29 November 1971, 3070 of 30 November 1973, 33/24 of 29 November 1978, 37/43 of 3 Dec. 1982, and 43/106 of 8 Dec. 1988, among others.
  • The Durban Declaration and Programme of Action, adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, prescribes comprehensive measures for combating all the scourges of racism and adequate remedies for victims.

Main principles for any effective UN mechanism to deal with apartheid:

  1. To address Israel’s apartheid, as a system carried out by the entire state structure and a crime against humanity, as a crucial component of Zionist settler colonialism and which is imposed against the entirety of the Palestinian people, across the Palestinian geography, and which crucially includes Palestinian refugees.
  2. To address Israel’s apartheid under CERD, the Apartheid Convention, and the Rome Statute.
  3. To focus on concrete, actionable measures to dismantle the system and punish those responsible and complicit , including through the implementation of measures prescribed in Article IV and VII of the Apartheid Convention:
    1. A transparent mechanism of investigation and monitoring, including public and regularly updated databases.
    2. Development of advice for compliance with Third State obligations regarding legislative or other measures necessary to suppress the crime of apartheid (including non-assistance and non-recognition). (Art. IV)
    3. Development of advice for compliance with Third State obligations regarding legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in article II of the Apartheid Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons. (Art. IV)
    4. To request and process periodic reports to the group established under article IX on the legislative, judicial, administrative or other measures that they have adopted and that give effect to the provisions of the Convention. (Art. VII)
    5. Propose lawful and targeted sanctions, similar to those applied to apartheid South Africa, for adoption by the United Nations, particularly a comprehensive military embargo.
    6. Supporting civil society efforts to dismantle and end apartheid including by ensuring their protection from reprisals and repression for doing such work as well as ensuring their work is duly considered by relevant UN bodies.