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Interstate Complaint Under Articles 11-13 of the International Convention for the Elimination of All

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Interstate Complaint Under Articles 11-13 of the International Convention for the Elimination of All Interstate Complaint under Articles 11-13 of the International Convention for the Elimination of All Forms of Racial Discrimination State of Palestine versus Israel I. Introduction ............................................................................................................... 1 A. Background ........................................................................................................... 1 B. Object and subject matter of the complaint ..................................................... 2 1. Scope ratione materiae: violations of CERD by Israel ...................................... 2 2. Scope ratione loci: violations of CERD in the OPT ........................................ 5 C. Compétence de la compétence of the CERD Committee/ ad hoc Commission..... 6 II. Admissibility .............................................................................................................. 7 A. Palestine and Israel are parties of CERD ......................................................... 7 1. Israel as a contracting party of CERD ............................................................ 8 2. Palestine as a contracting party of CERD ...................................................... 9 B. Extraterritorial applicability of CERD ............................................................ 16 C. Scope ratione temporis of the complaint: violations of CERD by Israel since its accession in 1979 .................................................................................................... 23 D. Scope ratione personae .......................................................................................... 29 E. Ineffectiveness of local remedies ..................................................................... 33 F. Israel’s obligation to cooperate and irrelevance of a possible non- appearance by the respondent State .......................................................................... 36 1. Israel is under an obligation to cooperate ..................................................... 36 II 2. Israel’s treaty-based obligation to participate in the CERD interstate complaint proceedings .................................................................................... 39 3. Irrelevance of non-appearance by the respondent state ............................. 41 III. Contextualisation .................................................................................................... 47 A. Context and background of this complaint .................................................... 47 B. Irrelevance of simultaneous applicability of international humanitarian law 57 IV. Violations of Art. 5 CERD .................................................................................... 61 A. Non-exhaustive character of Art. 5 CERD .................................................... 61 B. Equal treatment before tribunals (Art. 5 lit. a CERD) .................................. 65 1. Factual background .......................................................................................... 65 a. Israeli military court system in the OPT ..................................................... 68 b. Israeli criminal law applying in the West Bank ........................................... 71 2. Israel’s obligations under CERD to equal treatment before tribunals and all other organs administering justice ................................................................. 74 a. CERD obliges its parties to equality before the law and equal treatment before tribunals ...................................................................................................... 74 b. The discriminatory legal regime applied by Israel in the OPT is not permitted under international humanitarian law ............................................... 76 aa. Israel cannot rely on the general possibility of military courts in occupied territories according to international humanitarian law ............... 77 bb. The prolonged situation of belligerent occupation requires terminating the military court system .............................................................. 79 cc. Art. 66 4th Geneva Convention cannot justify the discriminatory treatment between Palestinians and Israelis within the OPT ....................... 80 III dd. In any case, the preconditions of Art. 66 4th Geneva Convention are not met ................................................................................................................ 82 3. Discriminatory treatment of Palestinians in the pre-trial phase: jurisdiction, preparation of trial and bail-out ..................................................................... 87 a. Israeli settlers residing in the OPT are not tried before military courts although they fall under Order 1651 (2009) ...................................................... 87 b. Palestinians are prevented from meeting with an attorney longer than Israelis ..................................................................................................................... 89 c. Obstruction of representation by Palestinian attorneys by incarceration of Palestinians in Israel ......................................................................................... 90 d. Period before being brought before a judge ............................................... 91 e. Discriminatory usage of Hebrew in the trial due to inadequate translation of documents into Arabic..................................................................................... 92 4. Discriminatory treatment of Palestinians regarding substantive law and sentencing ......................................................................................................... 94 a. Difference in the definition of offenses treats Palestinian and Israeli offenders unequally ............................................................................................... 94 b. Penalty policy and maximum sentences discriminate against Palestinian offenders ................................................................................................................. 95 c. Palestinians do not, similarly to Israeli offenders, have the chance to be released prior to their end of sentence ............................................................... 97 C. Discriminatory legal system with regard to under-aged Palestinian offenders ....................................................................................................................... 98 1. Palestinian juveniles are subjected to military juvenile courts .................... 99 2. Any selective ad hoc application of the spirit of the Israeli Youth Law by an individual military judge does not cure the differences in the respective laws 102 IV 3. Discriminatory treatment of Palestinians in comparison to Israeli under- aged takes place in all phases of criminal proceedings .............................. 103 a. Discriminatory definition with regard to the age of majority ................. 103 b. Discriminatory treatment during arrest and detention ............................ 105 c. Discriminatory treatment during criminal proceedings and violation of due process rights of minors .............................................................................. 109 d. Discriminatory treatment of sentencing of juvenile Palestinians ........... 110 e. Discriminatory treatment of minors in East Jerusalem ........................... 113 D. Administrative detention ................................................................................ 114 1. Applicable rules of international law ........................................................... 114 2. Legal background ........................................................................................... 115 3. Discrimination in the implementation of administrative detention ........ 117 a. Statistics of detention ................................................................................... 118 b. Reasons for detention .................................................................................. 120 c. Treatment of detainees ................................................................................ 121 d. Length of detentions .................................................................................... 122 e. Conditions of detention .............................................................................. 122 f. Review of detention orders by the courts ................................................. 123 E. Freedom of movement ................................................................................... 125 1. Settlers ............................................................................................................. 125 2. Palestinians ...................................................................................................... 128 a. Bureaucratic procedures: permits ............................................................... 128 b. Check points and physical obstacles .......................................................... 132 c. East Jerusalem............................................................................................... 134 d. Jordan Valley ................................................................................................. 134 F. Freedom to leave and return .......................................................................... 135 V 1. West Bank and Gaza ..................................................................................... 139 a. West Bank ....................................................................................................
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