4. APARTHEID IN INTERNATIONAL LAW
4.1 PROHIBITION AND CRIMINALIZATION OF APARTHEID Originally, “apartheid” referred to a political system formally introduced in South Africa in 1948 (building on existing racially discriminatory and segregationist laws and policies developed and applied under a system of minority white rule). The system was characterized by laws, policies and practices that ensured racial oppression and domination (which included formal racial segregation and discrimination) by one racial group (“white” South Africans) over others (especially, but not limited to, “black” South Africans).6 Formal apartheid finally ended in South Africa in the mid-1990s. Similar systems, although not necessarily referred to as apartheid, were introduced and maintained in other countries of southern Africa until they were dismantled at the end of racist minority rule.7 After its formal introduction in 1948 and especially in the 1970s, the international community adopted the term “apartheid” to condemn such systems and practices of formalized racial oppression and domination. The international community expressly prohibits apartheid in public international law,8 international human rights law,9 and international criminal law.10 The totality of these condemnations, prohibitions and criminalization, including the criminalization in the Rome Statute of the International Criminal Court (ICC) that occurred after apartheid in South Africa had ended, makes it clear that the international community
6. Such South African laws included, among many others, the Population Registration Act (1950), which classified citizens into racial “population groups”; and the Reservation of Separate Amenities Act (1953), which allowed racial segregation of public amenities such as premises, vehicles and services. 7. See especially Zimbabwe, which became independent in 1980, and Namibia, which became independent in 1990. Three other states in the sub-region were formally protectorates of the UK and either practised some form of segregation and/or were dependent on links with the South African economy and thus were subjected to apartheid policies: Botswana, which attained independence in 1964; Lesotho, which attained independence in 1966; and Swaziland, which obtained independence in 1968. Forms of segregation and systematic discrimination were also practised in Angola and Mozambique, which became independent in 1975. 8. The International Court of Justice (ICJ) has held that apartheid constitutes a “flagrant violation of the purposes and principles of the (UN) Charter”. See ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), advisory opinion, 21 June 1971. Dire Tladi, International Law Commission (ILC) Special Rapporteur, has concluded that the prohibition of apartheid amounts to a peremptory norm of international law. See ILC, Fourth Report on Peremptory Norms of General International Law (Jus Cogens) by Dire Tladi, Special Rapporteur, 31 January 2019, UN Doc. A/CN.4.727, paras 91-101. See also UN Security Council (UNSC), Resolution 418 (1977), adopted on 4 November 1977, UN Doc. S/ Res/418. In addition, see John Dugard and John Reynolds. “Apartheid, International Law, and the occupied Palestinian territory”, August 2013, European Journal of International Law, Volume 24, Issue 3, academic.oup.com/ejil/article/24/3/867/481600 9.
See, for example, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
10. International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 (Apartheid Convention) and Rome Statute of the International Criminal Court (Rome Statute). In addition, the UN General Assembly (UNGA) had already declared apartheid a crime against humanity in 1968. See UNGA, Resolution 2396 (XXXIII), adopted on 2 December 1968, UN Doc. A/Res/2396. In addition, “inhuman acts resulting from the policy of apartheid” are listed as a crime against humanity in Article I(b) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted by UNGA Resolution 2391 (XXIII) on 26 November 1968, entered into force on 11 November 1970.
ISRAEL’S APARTHEID AGAINST PALESTINIANS CRUEL SYSTEM OF DOMINATION AND CRIME AGAINST HUMANITY Amnesty International
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