View source for Crime of apartheid

{{Short description|Crime of racial oppression in international law}}
{{About|the crime of Apartheid as defined in international law|the system of racial segregation that formerly existed in South Africa|Apartheid|other uses|Apartheid (disambiguation)}}
{{Jus in bello}}{{Discrimination sidebar|state=collapsed}}
The '''crime of apartheid''' is defined by the 2002 Rome [[Rome Statute of the International Criminal Court|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 [[Dominance hierarchy|domination]] by one [[Race (classification of human beings)|racial group]] over any other racial group or groups and committed with the intention of maintaining that regime".<ref>{{Cite web|url=https://legal.un.org/icc/statute/99_corr/cstatute.htm|title=Rome Statute of the International Criminal Court, 1998|website=legal.un.org}}</ref>
On 30 November 1973, the [[United Nations General Assembly]] opened for signature and ratification [[The International Convention on the Suppression and Punishment of the Crime of Apartheid]].<ref name="ICSPCA">{{cite web |url-status=live |url=http://legal.un.org/avl/ha/cspca/cspca.html |archive-url=https://web.archive.org/web/20131209075240/http://legal.un.org/avl/ha/cspca/cspca.html |archive-date=2013-12-09 |access-date=10 October 2011 |title=Convention on the Suppression and Punishment of the Crime of Apartheid |website=United Nations Audiovisual Library of International Law }}</ref> 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".<ref name="text_ICSPCA">{{Cite web|url=http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf|title=International Convention on the Suppression and Punishment of the Crime of ''Apartheid'' |website=United Nations |access-date=2017-12-26|archive-date=2017-10-17|archive-url=https://web.archive.org/web/20171017200029/http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf|url-status=live}}</ref>
According to [[Human Rights Watch]] and legal scholar Miles Jackson, apartheid is also prohibited in [[customary international law]] although there is still debate as to whether it is criminalized as well.<ref>{{cite journal |last1=Jackson |first1=Miles |title=The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of All Forms of Racial Discrimination |journal=International & Comparative Law Quarterly |date=2022 |volume=71 |issue=4 |pages=831–855 |doi=10.1017/S0020589322000379 |language=en |issn=0020-5893 }}</ref><ref>{{cite web |title=Human Rights Watch Responds: Reflections on Apartheid and Persecution in International Law |url=https://www.hrw.org/news/2021/07/09/human-rights-watch-responds-reflections-apartheid-and-persecution-international-law |first1=Clive |last1=Baldwin  |website=Human Rights Watch |access-date=23 November 2022 |language=en |date=9 July 2021}}</ref> Legal scholars Gerhard Kemp and Windell Nortje noted that in 2021, two individuals (former members of [[Security Branch (South Africa)|apartheid South Africa's security police]]) became the first persons ever to be prosecuted for the crime of apartheid under customary international law.<ref>Gerhard Kemp & Windell Nortje https://academic.oup.com/jicj/article/21/2/405/7231934</ref>
==History==
{{International opposition to Apartheid}}{{Further|Allegations of apartheid by country}}
The term ''[[wikt:apartheid|apartheid]]'', from [[Afrikaans]] for 'apartness', was the official name of the [[History of South Africa in the apartheid era|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]].<ref>{{cite web
|url=http://www.anc.org.za/show.php?id=4968
|title=Letter from the representative of India to the Secretary-General concerning the treatment of Indians in South Africa
|last=Pillai
|first=Padmanabha
|date=12 July 1948
|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
}}</ref> 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.<ref>{{cite book |url=http://urn.kb.se/resolve?urn=urn%3Anbn%3Ase%3Anai%3Adiva-564 |title=Southern Africa Vol. 1: United Nations-Organization of African Unity Conference Oslo 9–14 April 1973 |publisher=Scandinavian Institute of African Studies |year=1973 |editor=Olav Stokke and Carl Widstrand |access-date=22 April 2022 |archive-date=13 June 2022 |archive-url=https://web.archive.org/web/20220613200808/http://nai.diva-portal.org/smash/record.jsf?pid=diva2%3A276754&dswid=3354 |url-status=live }}</ref> In 1973, the [[UN General Assembly|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).<ref name="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 [[Socialist Federal Republic of Yugoslavia|Yugoslavia]].<ref>{{cite web
|url=https://treaties.un.org/doc/Publication/UNTS/Volume%201015/v1015.pdf
|title=Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations
|series=VOLUME 1015
|at=p.244
|date=1976
|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
}}</ref>
"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."<ref>{{cite book
|title=The International Law Commission of the United Nations
|first=Jeffrey S.
|last=Morton
|year=2000
|publisher=University of South Carolina Press
|isbn=1-57003-170-3
|pages=27}}</ref>
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.<ref>{{Cite web|url=https://treaties.un.org/Pages/PageNotFound.aspx|archiveurl=https://web.archive.org/web/20120718122932/http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-7&chapter=4&lang=en|url-status=dead|title=United Nations Treaty Collection|archivedate=July 18, 2012|website=treaties.un.org}}</ref>  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..."<ref>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</ref>
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.<ref>See Article 85(4) and 85(5) of Additional Protocol 1, dated 8 June 1977 [http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079] {{Webarchive|url=https://web.archive.org/web/20081210124556/http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079|date=2008-12-10}}</ref>
The [[International Criminal Court]] provides for individual criminal responsibility for crimes against humanity, including the crime of apartheid.<ref>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.</ref>
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.<ref>{{Cite web |url=http://www.nottingham.ac.uk/law/hrlc/international-criminal-justice-unit/implementation-database.php |title=Database of National Implementing Legislation |access-date=4 July 2009 |archive-url=https://web.archive.org/web/20080706002816/http://www.nottingham.ac.uk/law/hrlc/international-criminal-justice-unit/implementation-database.php |archive-date=6 July 2008 |url-status=dead }}</ref> As of July 2008, 106 countries are [[States Parties to the Rome Statute of the International Criminal Court|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.<ref name=untreaty>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|url=https://web.archive.org/web/20080509190308/http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty11.asp |date=2008-05-09 }}''. Accessed 16 July 2007.</ref>  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|International Convention on the Suppression and Punishment of the Crime of Apartheid}}
Article II of the ICSPCA defines the crime of apartheid as:
{{Blockquote|text=
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:
{{ordered list|type=lower-alpha
| 1 = Denial to a member or members of a racial group or groups of the right to life and liberty of person
{{ordered list|type=lower-roman
| 1 = By murder of members of a racial group or groups;
| 2 = 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;
| 3 = By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
}}
| 2 = Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their [[Genocide|physical destruction]] in whole or in part;
| 3 = 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;
| 4 = 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;
| 5 = Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
| 6 = Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
}}
|source=International Convention on the Suppression and Punishment of the Crime of Apartheid, Article II<ref name="ICSPCA"/><ref name="text_ICSPCA"/>
}}[[File:ICSPCA-members.PNG|thumb|upright=1.5|Signatories to the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid: parties in dark green, signed but not ratified in light green, non-members in grey]]
===UN definition of racial discrimination===
{{Main|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),
{{quote|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.<ref>[http://www.hri.org/docs/ICERD66.html UN International Convention on the Elimination of All of Racial Discrimination] {{Webarchive|url=https://web.archive.org/web/20210423084838/http://www.hri.org/docs/ICERD66.html |date=2021-04-23 }}, New York 7 March 1966</ref>}}
This definition does not make any difference between discrimination based on [[ethnicity]] and [[Race (classification of human beings)|race]], in part because the distinction between the two remains debatable among [[Anthropology|anthropologists]].<ref>{{cite journal |first=A. |last=Metraux |year=1950 |title=United nations Economic and Security Council Statement by Experts on Problems of Race |journal=[[American Anthropologist]] |volume=53 |issue=1 |pages=142–145 |doi=10.1525/aa.1951.53.1.02a00370 }}</ref> 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".<ref>{{cite web |url=http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html |title=Racist and Religious Crime – CPS Prosecution Policy |publisher=The CPS |access-date=23 May 2010 |archive-url=https://web.archive.org/web/20100119032241/http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html |archive-date=19 January 2010 |url-status=dead }}</ref>
==ICC definition of the crime of apartheid==
{{Main|Rome Statute|International Criminal Court}}
Article 7 of the [[Rome Statute of the International Criminal Court]] defines the crime of apartheid  as:<ref name="rome_art7">{{cite web
|url=http://legal.un.org/icc/statute/99_corr/2.htm
|title=Rome Statute of the International Criminal Court, Part 2, Article 7
|author=United Nations
|year=2002
|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 <!-- Bot retrieved archive --> |archive-date = 12 July 2007}}</ref>
<blockquote>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.</blockquote>
== Court Cases ==
The [[International Court of Justice]] in its 2024 [[ICJ case on Israel's occupation of the Palestinian territories|case on Israel's occupation of the Palestinian territories]], gave an advisory opinion<ref><sup>LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM, 19 JULY 2024, ADVISORY OPINION</sup>
[https://www.icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-00-en.pdf]</ref><ref>{{Cite web |date=2024-07-19 |title=World Court Finds Israel Responsible for Apartheid |url=https://www.hrw.org/news/2024/07/19/world-court-finds-israel-responsible-apartheid |access-date=2024-08-07 |website=Human Rights Watch}}</ref> 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".<ref>{{Cite web |title=World Court Finds Israel Responsible for Apartheid |url=https://www.hrw.org/news/2024/07/19/world-court-finds-israel-responsible-apartheid |url-status=live |archive-url=https://web.archive.org/web/20240821000000/https://www.hrw.org/news/2024/07/19/world-court-finds-israel-responsible-apartheid |archive-date=August 21, 2024 |access-date=2024-08-26 |website=Human Rights Watch|date=19 July 2024 }}</ref>
==References==
{{Reflist|30em}}
==Further reading==
* {{cite journal |last1=Eden |first1=P. |title=The Role of the Rome Statute in the Criminalization of Apartheid |journal=Journal of International Criminal Justice |date=2014 |volume=12 |issue=2 |pages=171–191 |doi=10.1093/jicj/mqu024}}
* {{cite journal |last1=Eden |first1=Paul |title=Chapter 5: The Practices of Apartheid as a War Crime: A Critical Analysis |journal=Yearbook of International Humanitarian Law |date=2013 |volume=16 |pages=89–117 |doi=10.1007/978-94-6265-038-1_5 |url=https://www.cambridge.org/core/journals/yearbook-of-international-humanitarian-law/article/abs/chapter-5-the-practices-of-apartheid-as-a-war-crime-a-critical-analysis/C16C7A41737D70417F5106C9CB319491 |language=en |issn=1389-1359}}
* {{cite book |last1=Kemp |first1=Gerhard |title=International Conflict and Security Law: A Research Handbook |date=2022 |publisher=T.M.C. Asser Press |isbn=978-94-6265-515-7 |pages=1073–1091 |language=en |chapter=The Crime of Apartheid}}
* {{cite journal |last1=Lingaas |first1=Carola |title=The Crime against Humanity of Apartheid in a Post-Apartheid World |journal=Oslo Law Review |date=2017 |volume=2 |issue=2 |pages=86–115 |doi=10.5617/oslaw2566|doi-access=free |hdl=10852/48121 |hdl-access=free }}
* {{cite journal |last1=Sitze |first1=Adam |title=The crime of apartheid: genealogy of a successful failure |journal=London Review of International Law |date=2019 |volume=7 |issue=2 |pages=181–214 |doi=10.1093/lril/lrz005}}
==External links==
{{wiktionary|apartheid}}
* [https://web.archive.org/web/20170510115026/http://www.alhaq.org/attachments/article/236/Occupation_Colonialism_Apartheid-FullStudy.pdf Human Sciences Research Council: Occupation, Colonialism, Apartheid? A re-assessment of Israel's practices in the occupied Palestinian territories under international law. Cape Town 2009]
* [https://web.archive.org/web/20101123003904/http://www.middleeastmonitor.org.uk/downloads/other_reports/report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territories-occupied-since-1967.pdf Richard Falk:Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Report to the UN General Assembly, 30.August 2010, sec. 5]
* [https://www.hrw.org/node/95061 Human Rights Watch Report: Separate and Unequal. Israel's Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, December 19, 2010]
{{Substantive human rights}}
{{International human rights legal instruments}}
{{International Criminal Law}}
{{Racism topics|state=collapsed}}{{Discrimination}}
[[Category:Racial segregation]]
[[Category:Crimes against humanity by type|Apartheid]]
[[Category:International opposition to apartheid in South Africa]]
[[Category:Apartheid| ]]