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 Dr. 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. As it became more widely known, South African apartheid was condemned internationally as unjust and racist and many decided that a formal legal framework was needed in order to apply international pressure on the South African government.

In 1971, the USSR 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, Belarus, Chad, Czechoslovakia, Ecuador, the German Democratic Republic (East Germany), Guinea, Hungary, Iraq, Mongolia, Poland, Qatar, Somalia, Syria, Ukraine, the USSR, the United Arab Emirates, Tanzania, Yugoslavia.

"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."

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 International Criminal Court (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

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

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:

Definition of racial discrimination

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

the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

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

Article 7 of the Rome Statute of the International Criminal Court defines crimes against humanity as:

Later in Article 7, the crime of apartheid is defined as:

The 'crime of apartheid' means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

Israel

Critics have accused Israel of committing the crime of apartheid; In a 2007 report, United Nations Special Rapporteur for Palestine John Dugard stated that "elements of the [state of Israel's] occupation constitute forms of colonialism and of apartheid, which are contrary to international law." and suggested that the "legal consequences of a prolonged occupation with features of colonialism and apartheid" be put to the International Court of Justice.

In 2010, Richard Falk, the next UN Special Rapporteur for Palestine concludes that this "general structure of apartheid that exists in the Occupied Palestinian Territories ... makes the allegation increasingly credible despite the differences between the specific characteristics of South African apartheid and that of the Occupied Palestinian Territories regime".

South African Judge Richard Goldstone, head of the Report of the United Nations Fact Finding Mission on the Gaza Conflict, also known as the Goldstone Report, writing in The New York Times in October 2011, said that "in Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute." Goldstone noted that Arab citizens of Israel are allowed to vote, have political parties, and hold seats in the Knesset and other positions, including one on the Israeli Supreme Court. Goldstone wrote that the situation in the West Bank was more complex, but that there is no attempt to maintain "an institutionalized regime of systematic oppression and domination by one racial group", and claimed that the seemingly oppressive measures taken by Israel were taken to protect its own citizens from attacks by Palestinian militants. However the Goldstone Report does not contain any reference to charges of apartheid, whether supported or not. With regard to associated issue of positive findings of Israeli war crimes in the report, Goldstone has argued for a redaction. However the other three authors of the Goldstone Report have publicly rejected this arguing Goldstone has "misrepresented facts in an attempt to delegitimise the [Goldstone Report's] findings and to cast doubts on its credibility".

South Africa

The name of the crime comes from a system of racial segregation in South Africa enforced through legislation by the National Party (NP), the governing party from 1948 to 1994. Under apartheid, the rights, associations, and movements of the majority black inhabitants and other ethnic groups were curtailed, and white minority rule was maintained.