Crime of apartheid

History

The term apartheid, from Afrikaans for 'apartness', was the official name of the South African system of racial segregation which existed after 1948. Complaints about the system were brought to the United Nations as early as 12 July 1948 when Padmanabha Pillai, the representative of India to the United Nations, circulated a letter to the secretary-general expressing his concerns over treatment of ethnic Indians within the Union of South Africa.{{cite web |access-date=10 October 2011 |archive-url=https://web.archive.org/web/20120603164112/http://www.anc.org.za/show.php?id=4968 |archive-date=3 June 2012 |url-status=dead

In 1971, the Soviet Union and Guinea together submitted early drafts of a convention to deal with the suppression and punishment of apartheid. In 1973, the General Assembly of the United Nations agreed on the text of the International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA). The convention has 31 signatories and 107 parties. The convention came into force in 1976 after 20 countries had ratified it. They were: Benin, Bulgaria, Chad, Czechoslovakia, Ecuador, the German Democratic Republic (East Germany), Guinea, Hungary, Iraq, Mongolia, Poland, Qatar, Somalia, Syria, the USSR, the United Arab Emirates, Tanzania, and Yugoslavia.{{cite web |access-date=13 June 2019 |archive-date=25 October 2019 |archive-url=https://web.archive.org/web/20191025184052/https://treaties.un.org/doc/publication/UNTS/Volume%201015/v1015.pdf |url-status=live

"As such, apartheid was declared to be a crime against humanity, with a scope that went far beyond South Africa. While the crime of apartheid is most often associated with the racist policies of South Africa after 1948, the term more generally refers to racially based policies in any state."{{cite book

Seventy-six other countries subsequently signed on, but a number of nations, including Western democracies, have neither signed nor ratified the ICSPCA, including Canada, France, Germany, Israel, Italy, the Netherlands, the United Kingdom, Australia, New Zealand and the United States. In explanation of the US vote against the convention, Ambassador Clarence Clyde Ferguson Jr. said: "[W]e cannot... accept that apartheid can in this manner be made a crime against humanity. Crimes against humanity are so grave in nature that they must be meticulously elaborated and strictly construed under existing international law..."

In 1977, Addition Protocol 1 to the Geneva Conventions designated apartheid as a grave breach of the protocol and a war crime. There are 169 parties to the protocol.

The International Criminal Court provides for individual criminal responsibility for crimes against humanity, including the crime of apartheid.

The ICC came into being on 1 July 2002, and can only prosecute crimes committed on or after that date. The court can generally only exercise jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The ICC exercises complimentary jurisdiction. Many of the member states have provided their own national courts with universal jurisdiction over the same offenses and do not recognize any statute of limitations for crimes against humanity. As of July 2008, 106 countries are states parties (with Suriname and Cook Islands set to join in October 2008), and a further 40 countries have signed but not yet ratified the treaty. However, many of the world's most populous nations, including China, India, the United States, Indonesia, and Pakistan are not parties to the court and therefore are not subject to its jurisdiction, except by security council referral.

ICSPCA definition of the crime of apartheid

Main article: International Convention on the Suppression and Punishment of the Crime of Apartheid

Article II of the ICSPCA defines the crime of apartheid as:

For the purpose of the present Convention, the term 'the crime of apartheid', which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhumane acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

UN definition of racial discrimination

Main article: International Convention on the Elimination of All Forms of Racial Discrimination

According to the United Nations Convention on the Elimination of All Forms of Racial Discrimination (ICERD),

This definition does not make any difference between discrimination based on ethnicity and race, in part because the distinction between the two remains debatable among anthropologists. Similarly, in British law the phrase racial group means "any group of people who are defined by reference to their race, colour, nationality (including citizenship) or ethnic or national origin".

ICC definition of the crime of apartheid

Main article: Rome Statute, International Criminal Court

Article 7 of the Rome Statute of the International Criminal Court defines the crime of apartheid as:{{cite web |access-date=21 July 2007 |archive-url = https://web.archive.org/web/20070712204433/http://www.un.org/law/icc/statute/99_corr/2.htm#art.7 |archive-date = 12 July 2007}}

Court cases

The International Court of Justice in its 2024 case on Israel's occupation of the Palestinian territories, gave an advisory opinionLEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM, 19 JULY 2024, ADVISORY OPINION

https://www.icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-00-en.pdf which found that Israel was in breach of Article 3 of International Convention on the Elimination of All Forms of Racial Discrimination, including "racial segregation and apartheid". HRW declared that "World Court Finds Israel Responsible for Apartheid".

In 2024, South Africa opened prosecutions against the alleged perpetrators of the 1982 kidnapping and murder of the Cosas Four anti-apartheid activists. In 2025, a South African court ruled that apartheid had been a crime against customary international law at the time of the crime.

References

References

1. "Rome Statute of the International Criminal Court, 1998".
2. "Convention on the Suppression and Punishment of the Crime of Apartheid".
3. "International Convention on the Suppression and Punishment of the Crime of ''Apartheid''".
4. (2022). "The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of All Forms of Racial Discrimination". International & Comparative Law Quarterly.
5. (9 July 2021). "Human Rights Watch Responds: Reflections on Apartheid and Persecution in International Law".
6. Gerhard Kemp & Windell Nortje https://academic.oup.com/jicj/article/21/2/405/7231934
7. (1973). "Southern Africa Vol. 1: United Nations-Organization of African Unity Conference Oslo 9–14 April 1973". Scandinavian Institute of African Studies.
8. "United Nations Treaty Collection".
9. Statement by Ambassador Clarence Clyde Ferguson Jr. before General Assembly in explanation of vote on Apartheid Convention, 30 November 1973. Review of the U.N. Commission on Human Rights: Hearings before the Subcommittee on International Organizations and Movements of the House Foreign Affairs Committee (1974) p.58
10. See Article 85(4) and 85(5) of Additional Protocol 1, dated 8 June 1977 [http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079] {{Webarchive. link. (2008-12-10)
11. Article 7 of the [[Rome Statute of the International Criminal Court]] specifically lists the "crime of apartheid" as one of eleven recognized crimes against humanity.
12. "Database of National Implementing Legislation".
13. United Nations. ''Multilateral treaties deposited with the Secretary-General: [http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty11.asp Rome Statute of the International Criminal Court] {{Webarchive. link. (2008-05-09 ''. Accessed 16 July 2007.)
14. [http://www.hri.org/docs/ICERD66.html UN International Convention on the Elimination of All of Racial Discrimination] {{Webarchive. link. (2021-04-23 , New York 7 March 1966)
15. Metraux, A.. (1950). "United nations Economic and Security Council Statement by Experts on Problems of Race". [[American Anthropologist]].
16. "Racist and Religious Crime – CPS Prosecution Policy". The CPS.
17. (2024-07-19). "World Court Finds Israel Responsible for Apartheid".
18. (19 July 2024). "World Court Finds Israel Responsible for Apartheid".
19. (29 April 2025). "Criminal Court in South Africa Confirms Charges in Historic First Prosecution of the Crime Against Humanity of Apartheid". Opinio Juris.