|International Humanitarian Law|
|Courts and Tribunals|
The crime of Apartheid is defined by the 2002 Rome Statute of the International Criminal Court as inhumane acts of a character similar to other crimes against humanity "committed in the context of an institutionalized 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".
On November 30, 1973, the United Nations General Assembly opened for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid. It defined the crime of apartheid as "inhuman 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".
|International opposition to|
apartheid in South Africa
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 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, 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 (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.
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:
- Denial to a member or members of a racial group or groups of the right to life and liberty of person
- By murder of members of a racial group or groups;
- By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;
- By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
- Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
- Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognised trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
- Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
- Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
- Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
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".
Article 7 of the Rome Statute of the International Criminal Court defines crimes against humanity as:
- Article 7
- Crimes against humanity
- For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- Deportation or forcible transfer of population;
- Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
- Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
- Enforced disappearance of persons;
- The crime of apartheid;
- Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
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.
The privileging of the Han people in ethnic minority areas outside of China proper, such as the Uyghur-majority Xinjiang and the central government's policy of settlement in Tibet, and the alleged erosion of indigenous religion, language and culture through repressive measures (such as the Han Bingtuan militia in Xinjiang) and sinicization have been likened to "cultural genocide" and apartheid by some activists. With regards to Chinese settlements in Tibet, in 1991 the Dalai Lama declared:
The new Chinese settlers have created an alternate society: a Chinese apartheid which, denying Tibetans equal social and economic status in our own land, threatens to finally overwhelm and absorb us.
Additionally, the traditional residential system of hukou has been likened to apartheid due to its classification of 'rural' and 'urban' residency status, and is sometimes likened to a form of caste system. In recent years, the system has undergone reform, with an expansion of urban residency permits in order to accommodate more migrant workers.
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 2009, Virginia Tilley edited a book-length report that was published by the Human Sciences Research Council of South Africa, which stated that Israeli policies in the occupied Palestinian territories were consistent with apartheid. In 2010, Richard Falk, the UN Special Rapporteur for Palestine said 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". In 2017, Tilley and Falk authored a report that was initially released by the United Nations Economic and Social Commission for Western Asia, then chaired by Dr. Rima Khalaf. According to Khalaf, the report was prepared at the request of member states, ESCWA consisting of 18 Arab states in Western Asia. The report stated Israel established an apartheid regime, and urged governments to support support BDS (Boycott, Divest, and Sanction) policies. US Ambassador Nikki Haley issued a statement saying the secretariat must "withdraw the report altogether". The Israeli foreign ministry compared the report to the Nazi propaganda paper Der Stürmer. A UN spokesman stated that "the report as it stands does not reflect the views of the secretary-general", and that it only reflects the opinion of its authors. The report was withdrawn from the ESCWA website on the instructions of Secretary-General António Guterres, and Rima Khalaf resigned from her position at the UN.
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".
In 2003, Amir Taheri quoted a Shi'ite businessman from Dhahran as saying "It is not normal that there are no Shi'ite army officers, ministers, governors, mayors and ambassadors in this kingdom. This form of religious apartheid is as intolerable as was apartheid based on race."
Testifying before the U.S. Congressional Human Rights Caucus on June 4, 2002, in a briefing entitled "Human Rights in Saudi Arabia: The Role of Women", Ali Al-Ahmed, Director of the Saudi Institute, stated:
Saudi Arabia is a glaring example of religious apartheid. The religious institutions from government clerics to judges, to religious curricula, and all religious instructions in media are restricted to the Wahhabi understanding of Islam, adhered to by less than 40% of the population. The Saudi government communized Islam, through its monopoly of both religious thoughts and practice. Wahhabi Islam is imposed and enforced on all Saudis regardless of their religious orientations. The Wahhabi sect does not tolerate other religious or ideological beliefs, Muslim or not. Religious symbols by Muslims, Christians, Jews and other believers are all banned. The Saudi embassy in Washington is a living example of religious apartheid. In its 50 years, there has not been a single non-Sunni Muslim diplomat in the embassy. The branch of Imam Mohamed Bin Saud University in Fairfax, Virginia instructs its students that Shia Islam is a Jewish conspiracy.
On December 14, 2005, Republican Representative Ileana Ros-Lehtinen and Democratic Representative Shelley Berkley introduced a bill in Congress urging American divestiture from Saudi Arabia, and giving as its rationale (among other things) "Saudi Arabia is a country that practices religious apartheid and continuously subjugates its citizenry, both Muslim and non-Muslim, to a specific interpretation of Islam." Freedom House showed on its website, on a page tiled "Religious apartheid in Saudi Arabia", a picture of a sign showing Muslim-only and non-Muslim roads.
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.
In early 1991, non-Arabs of the Zaghawa tribe of Sudan attested that they were victims of an intensifying Arab apartheid campaign, segregating Arabs and non-Arabs. Sudanese Arabs, who controlled the government, were widely referred to as practicing apartheid against Sudan's non-Arab citizens. The government was accused of "deftly manipulat(ing) Arab solidarity" to carry out policies of apartheid and ethnic cleansing.
American University economist George Ayittey accused the Arab government of Sudan of practicing acts of racism against black citizens. According to Ayittey, "In Sudan... the Arabs monopolized power and excluded blacks – Arab apartheid." Many African commentators joined Ayittey in accusing Sudan of practising Arab apartheid.
The international community has identified three regimes as inimical to human rights – colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT. At the same time elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.
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