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to Apartheid in South Africa
|Instruments and legislation|
|UN Security Council Resolutions|
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 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 (ICSPCA) 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."
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 Union of Soviet Socialist Republics 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.
"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 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 follows:
International Convention on the Suppression and Punishment of the Crime of Apartheid,
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.
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.
During 2003, Paul Ngobeni, along with Kweku Hanson, his associate from the Ocwen class action suit, represented three plaintiffs who claimed to represent "all persons who lived in South Africa between 1948 and the present and who suffered damages as a result of apartheid." Punitive and compensatory damages in excess $400 billion were claimed from a "slew" of multinational corporations (including IBM, Citigroup, GE, DuPont and many others) that did business in apartheid South Africa for violations of international law subject to suit in United States federal district court under the Alien Tort Claims Act, 28 U.S.C. â§ 1350 (âATCAâ), and other jurisdictional provisions. The Southern District Court of New York under Judge John E. Sprizzo found for defendantsâ motion to dismiss the complaint. That finding was partially vacated by the US Court of Appeal (Second Circuit) in an appeal first lodged in January 2006 and decided in October 2007 but by then Messrs Ngobeni and Hanson were no longer representing the claimants.
In a 2007 report, United Nations Special Rapporteur for Palestine John Dugard stated that "elements of the Israeli 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. South Africa's statutory research agency the Human Sciences Research Council (HSRC) stated in a 2009 report that "the State of Israel exercises control in the [Occupied Palestinian Territories] with the purpose of maintaining a system of domination by Jews over Palestinians and that this system constitutes a breach of the prohibition of apartheid." Activists for Palestinian rights have also accused Israel of committing the crime of apartheid. For example, in 2006, at the UN-sponsored International Conference of Civil Society in Support of the Palestinian People, Phyllis Bennis, co-chair of the International Coordinating Network on Palestine alleged that "Once again, the crime of apartheid [is] being committed by a United Nations Member State [Israel]." Zahir Kolliah has written that "In South Africa and in Palestine the indigenous populations live under apartheid regimes 'settler colonies' as described by the International Convention on the Suppression and Punishment of the Crime of Apartheid". Hazeem Jamjoum states in a 2009 article that "In terms of law, describing Israel as an apartheid state does not revolve around levels of difference and similarity with the policies and practices of the South African Apartheid regime" because apartheid is a universal crime under international law.
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