The Jewish and democratic state and the Law of Return
A number of Committee members asked the Israeli delegation to explain the preferential treatment for Jewish nationals and the extraterritorial application of the concept of Jewish nationality through the Law of Return. The Israeli delegation said that the Law of Return did not discriminate between Jewish nationals and “others” because “the distinction took place before acquiring Israeli citizenship” and that once citizenship is granted, “the rights of all citizens were equal.” Moreover, Israel said that the right of return did not discriminate against “non-Jews or others,” because they could acquire citizenship under the 1952 Citizenship Law. In its Concluding Observations, CERD called upon Israel to ensure that “the definition of Israel as a Jewish nation state does not result, in any systemic distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin in the enjoyment of human rights” and urged Israel “to assure equality in the right to return to one’s country and in the possession of property.” The Committee finally said they would welcome “more information on how the State party envisages the development of the national identity of all its citizens.”(1)
The right to equality in Israel
The Israeli delegation defined Israel as a pluralistic society where the Jewish and democratic nature of the State live in harmony. The Country Rapporteur, Morten Kjaerum, asked about the right to equality in Israel because neither the law of return, the citizenship law nor the Basic Law: Human Dignity and Freedom, include a clause on the prohibition of discrimination or on the right to equality. The Israeli delegation responded that based on its Declaration of Independence, Israel aimed to ensure the “complete equality of social and political rights irrespective of religion, race or sex; to guarantee freedom of religion...” The rapporteur, however, concluded that “relying on jurisprudence of the Supreme Court, according to which the principle of equality was derived from the Basic Law on Dignity, was not sufficient.”(2) CERD recommended that Israel “ensure that the prohibition of racial discrimination and the principle of equality be enacted as general norms of high status in domestic law.” It further recommended “that the State party increase its efforts to ensure the equal enjoyment of economic, social and cultural rights by Arab Israeli citizens, in particular their right to work, health and education.”(3)
Para-statal institutions and access to land
The Country Rapporteur on Israel, Morten Kjaerum, asked Israel to explain the mandate of bodies related to the state, namely, the Jewish National Fund (JNF), World Zionist Organization (WZO) and the Israeli Land Administration (ILA) and how the principle of non-discrimination applies to them. In its Concluding Observations, the Committee said it is “concerned by information according to which these institutions manage land, housing and services exclusively for the Jewish population” and “urge[d] the State party to ensure that these bodies are bound by the principle of non-discrimination in the exercise of their functions.”(4)
Bedouin in the Naqab
One expert asked the Israeli delegation if the state recognized the traditional patterns of landholding of the Bedouin while another expert wondered about the classification as illegal or unrecognized villages of a whole collective group. The Israeli delegation said that the state has adopted a policy of encouraging the Bedouin to move to planned towns because it was unable to provide all services to isolated and scattered communities. Israel said it provides land free of charge and compensation to those Bedouin who move into the planned towns. The Committee concluded that “the lack of basic services provided to the Bedouins may in practice force them to relocate to the planned towns” and recommended “that the State party enquire into possible alternatives to the relocation of inhabitants of unrecognized Bedouin villages in the Negev/Naqab to planned towns, in particular through the recognition of these villages and the recognition of the rights of the Bedouins to own, develop, control and use their communal lands, territories and resources traditionally owned or otherwise inhabited or used by them.”(5)
Other discriminatory practices
CERD also questioned the Israeli delegation as to whether the right balance had been struck between security laws and human rights, particularly in the case of family reunification and recommended the revocation of the Citizenship and Entry into Israel Law (Temporary Order) and called upon Israel to “reconsider its policy with a view to facilitating family reunification on a non-discriminatory basis.”(6)
Redress against racial discrimination
Israel did no respond to questions regarding the lack of investigation and law enforcement in response to complaints filed by Palestinians citizens of Israel. CERD recommended that Israel “guarantee the right of every person within its jurisdiction to an effective remedy against the perpetrators of acts of racial discrimination, or acts committed with racist motives, without discrimination of any kind, whether such acts are committed by private individuals or State officials, as well as the right to seek just and adequate reparation for the damage suffered.”(7)
Apartheid and segregation in both Israel and the OPT The Committee looked at the applicability of Article 3 of the ICERD to both Israel and the occupied Palestinian territories.(8)
A Committee member defined apartheid or policies of segregation as a deliberate system based on an ideology of superiority resulting in institutional and structural racial segregation, which is racist in intent and in effect.
Segregation and separation in Israel
With regard to Israel, the expert questioned the Israeli delegation as to the reason for practices of segregation and the use of the terms “Jewish sector” and “Arab sector” in the Israeli state report. The member further requested the Israeli delegation to explain the state’s understanding of the concepts of segregation and separateness, a request to which the state did not clearly respond to. The Committee recommended to Israel to “assess the extent to which the maintenance of separate Arab and Jewish “sectors” may amount to racial segregation” and called upon the state to “develop and implement policies and projects aimed at avoiding separation of communities, in particular in the areas of housing and education.”(9)
Access to state land in Israel
CERD also applied article 3 to issues of access to state land by Palestinian citizens of Israel and recommended that “all measures are taken to ensure that State land is allocated without discrimination, direct or indirect, based on race, colour, descent, or national or ethnic origin.”(10)
Apartheid-like practices in the OPT
CERD applied article 3 to violations of human rights generated by the construction of the Wall and its associated regime, severe restrictions on the freedom of movement of Palestinians and the dual legal system being applied to Israelis and Palestinians in the OPT.
Legal systems in the OPT
Israel said that two legal regimes are applicable to Palestinians and Israelis in the West Bank: Palestinians are subject to “the law of the West Bank” while Israeli citizens or visitors are subject to Israeli law and criminal law applicable in the West Bank. In their Concluding Observations, the Committee expressed concerns “at the State party’s assertion that it can legitimately distinguish between Israelis and Palestinians in the Occupied Palestinian Territories on the basis of citizenship” and called upon Israel to ensure that “Palestinians enjoy full rights under the Convention without discrimination based on citizenship and national origin.” CERD called upon Israel to “ensure that restrictions on freedom of movement are not systematic but only of temporary and exceptional nature, are not applied in a discriminatory manner, and do not lead to segregation of communities.”(11)
The Wall and its associated regime in the occupied West Bank
Expert Committee members asked Israel whether it had undertaken any studies on the impact of the Wall on affected communities and whether it had taken steps to implement the 2004 Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Israel said that the Court did not conclude that the Wall was discriminatory and said that in terms of freedom of movement “the distinction between a citizen and a non-citizen[...]was not a form of discrimination under the Convention.” It also said that neither Israel nor the Quartet had accepted the Court’s ruling.
It concluded by saying that the Israeli Supreme Court reserved the right to “judge separately whether each and every segment of the fence was legal under international law.”(12) CERD urged Israel to “cease the construction of the wall in the Occupied Palestinian Territories, including in and around East Jerusalem, dismantle the structure therein situated and make reparation for all damage caused by the construction of the wall.”(13)
Committee members also highlighted the impact of Jewish colonies in the OPT as seriously affecting the human rights of Palestinians, particularly in the city of Hebron. CERD reaffirmed that the colonies in the occupied West Bank, including East Jerusalem, are illegal and that other “actions that change the demographic composition of the Occupied Palestinian Territories are also of concern as violations of human rights and international humanitarian law.” The Committee also recommended to Israel to increase its efforts to protect Palestinians against settler violence and ensure that redress is offered to the victims.(14)
* References to the position of the Israeli delegation and the questions of the members of the Committee are from notes taken during the review of Israel by Badil staff on 22-23 February 2007.
(1) Concluding observations of the Committee on the Elimination of Racial Discrimination, Israel (Unedited version), Committee on the Elimination of Racial Discrimination, CERD/C/ISR/CO/13, Seventieth Session, paras. 17-18.
(2) See UN Committee on Elimination of Racial Discrimination Considers (CERD), Report of Israel, 27 February 2007.
(3) Supra note 1, paras. 16, 24.
(4) Ibid, para. 19.
(5) Ibid, para. 25.
(6) Ibid, para. 20.
(7) Ibid, para. 30.
(8) Applicability of the Convention to the OPT: Most Committee experts asked Israel why it did not include the occupied territories in its report, saying that Israel submitted only “half of the report.” Israel said it was willing to informally answer questions pertaining to the West Bank, not the Gaza Strip, which it no longer considers occupied.
(9) Ibid, para. 22.
(10) Ibid, para. 23.
(11) Ibid, paras. 32-35.
(12) See UN Committee on Elimination of Racial Discrimination Considers (CERD), Report of Israel, 27 February 2007.
(13) Supra note 1, para. 33.
(14) Ibid, paras. 14, 37