Joshua Kern submits responses to IHRC / Addameer and former Special Rapporteur Michael Lynk to UN Human Rights Council Commission of Inquiry

01 June 2022

On 27 May 2021, the UN Human Rights Council held a special session on “the Grave Human Rights Situation in the Occupied Palestinian Territory, including East Jerusalem” and adopted the resolution “Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel.”

Through its resolution, the Human Rights Council decided to “urgently establish an ongoing, independent, international commission of inquiry to investigate, in the occupied Palestinian territory, including East Jerusalem, and in Israel, all alleged violations and abuses of international human rights law leading up and since 13 April 2021” (“COI”).  The resolution further requested the COI to “investigate all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity”.  The COI was mandated to report to the Human Rights Council and to the General Assembly on an annual basis as from June 2022 and September 2022, respectively.

Pursuant to its mandate, the COI issued a Call for Submissions for information concerning:

  • Underlying root causes of recurrent tensions, instability and protraction of conflict between Palestinians and Israelis; as well as systematic discrimination and repression based on national, ethnic, racial or religious identity
  • Facts and circumstances regarding alleged violations of international humanitarian law and alleged violations and abuses of international human rights law leading up to and since 13 April 2021
  • Identification of those responsible
  • Recommendations on accountability measures, with a view to avoiding and ending impunity and ensuring legal accountability, including individual criminal and command responsibility
  • Recommendations on measures to be taken by third States to ensure respect for international humanitarian law in the West Bank, Gaza Strip and East Jerusalem.

The COI’s Terms of Reference state that it will seek to receive information from as broad a range of stakeholders as possible, and that it will request information and documentation as appropriate from civil society; the media; member states of the United Nations; organs, bodies and agencies of the United Nations; and other relevant experts and stakeholders. The COI may hold roundtables, consultations, and public hearings with victims, witnesses, experts and other relevant partners as it would find helpful in the implementation of its mandate, and it will also invite all United Nations Member States and other relevant stakeholders, along with interested persons or organisations, to make written and oral submissions that could be of assistance to it in the discharge of its mandate.

Pursuant to the COI’s Call, on 22 April 2022, Joshua Kern communicated two reports, published in December 2021 and March 2022, that he had co-authored with Anne Herzberg. The reports are titled “False Knowledge as Power: Deconstructing Definitions of Apartheid that Delegitimise the Jewish State,” and “Neo-Orientalism: Deconstructing claims of apartheid in the Palestinian-Israeli conflict.” In “False Knowledge as Power,” Josh and Anne offer a substantiated definition of the crime and inter-State prohibition of apartheid. In “Neo-Orientalism,” they expand on the legal analysis by assessing whether there are reasonable grounds to believe that apartheid is being committed by Israeli officials in territories under its jurisdiction. In his letter of 22 April, Josh offered to meet with the COI.

On 9 May 2022, Josh wrote a second letter to the COI supplementing his submission of 22 April. At the end of February 2022, the International Human Rights Clinic at Harvard Law School, with the Addameer Prisoner Support and Human Rights Association, had published a Joint Submission to the COI alleging Israeli responsibility for apartheid in the West Bank.  On 21 March, Michael Lynk (Canada), who then held the mandate as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, issued a report examining the current human rights situation in the West Bank, Gaza Strip and East Jerusalem, and concluded that the situation there “satisfies the prevailing evidentiary standard for the existence of apartheid.”

Josh’s letter offered a reply to the contributions provided by IHRC/Addameer and Mr Lynk which critiques the legal classifications and factual analysis which they adopt. It argues that both IHRC / Addameer and Mr Lynk avoid discussion of core legal and contextual elements, which is material to errors which result – both in their legal analysis as well as in their factual assessments – which lead them to conclude that Israel and its officials are responsible for apartheid. Josh’s letter of 9 May is available here.

Josh is instructed by the Institute for NGO Research to advise on allegations of apartheid in the Israeli - Palestinian conflict.

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