Crime of apartheid

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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.[1] 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".[2]

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.[3] 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.[4] 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).[1] 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.[citation needed]

"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."[5]

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.[6] 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..."[7]

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.[8]

The International Criminal Court provides for individual criminal responsibility for crimes against humanity,[9] including the crime of apartheid.[10]

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.[11] 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.[12] 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

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

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

International Convention on the Suppression and Punishment of the Crime of Apartheid,
Article II[1][2]


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:

  1. Denial to a member or members of a racial group or groups of the right to life and liberty of person
    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 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.

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.[13]

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.[14] 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".[15]

ICC definition of the crime of apartheid

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

Article 7
Crimes against humanity
  1. 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:
    1. Murder;
    2. Extermination;
    3. Enslavement;
    4. Deportation or forcible transfer of population;
    5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    6. Torture;
    7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    8. 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;
    9. Enforced disappearance of persons;
    10. The crime of apartheid;
    11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[16]

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.[16]

Accusations of apartheid by country

China

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.[17][18] 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.[19][20]

Additionally, the traditional residential system of hukou has been likened to apartheid due to its classification of 'rural' and 'urban' residency status,[21][22] and is sometimes likened to a form of caste system.[23][24][25] In recent years, the system has undergone reform, with an expansion of urban residency permits in order to accommodate more migrant workers.[26][27]

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.[28]

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.[29] 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".[30] 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.[31] The report was withdrawn from the ESCWA website on the instructions of Secretary-General Antonio Guterres, and Rima Khalaf resigned from her position at the UN.[32][33]

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.[34] However the Goldstone Report does not contain any reference to charges of apartheid, whether supported or not.[35] 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".[36]

Saudi Arabia

Road sign on a highway into Mecca, stating that one direction is "Muslims only" while another direction is "obligatory for non-Muslims". Religious police are stationed beyond the turnoff on the main road to prevent non-Muslims from proceeding into Mecca and Medina.[37]

Saudi Arabia's treatment of religious minorities has been described by both Saudis and non-Saudis as "apartheid" and "religious apartheid".[38][39]

Alan Dershowitz wrote in 2002, "in Saudi Arabia apartheid is practiced against non-Muslims, with signs indicating that Muslims must go to certain areas and non-Muslims to others."[40]

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."[41]

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.[42]

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."[43] 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.[44]

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.

Sudan

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.[45] 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.[46]

American University economist George Ayittey accused the Arab government of Sudan of practicing acts of racism against black citizens.[47] According to Ayittey, "In Sudan... the Arabs monopolized power and excluded blacks – Arab apartheid."[48] Many African commentators joined Ayittey in accusing Sudan of practising Arab apartheid.[49]

Alan Dershowitz labeled Sudan an example of a government that "actually deserve(s)" the appellation "apartheid".[50] Former Canadian Minister of Justice Irwin Cotler echoed the accusation.[51]

See also

References

  1. ^ a b c International Convention on the Suppression and Punishment of the Crime of Apartheid, retrieved on 10 October 2011.
  2. ^ a b Text of the International Convention on the Suppression and Punishment of the Crime of Apartheid
  3. ^ Pillai, Padmanabha (12 July 1948). "Letter from the representative of India to the Secretary-General concerning the treatment of Indians in South Africa". Retrieved 10 October 2011.
  4. ^ Olav Stokke and Carl Widstrand, ed. (1973). Southern Africa Vol. 1: United Nations-Organization of African Unity Conference Oslo 9–14 April 1973. Scandinavian Institute of African Studies.
  5. ^ Morton, Jeffrey S. (2000). The International Law Commission of the United Nations. University of South Carolina Press. p. 27. ISBN 1-57003-170-3.
  6. ^ List of signatories to the ICSPCA Archived July 18, 2012, at the Wayback Machine.
  7. ^ 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
  8. ^ See Article 85(4) and 85(5) of Additional Protocol 1, dated 8 June 1977 [1]
  9. ^ Encyclopædia Britannica, "Nonstate actors in international law". Retrieved on 12 June 2006.
  10. ^ Article 7 Archived January 13, 2008, at the Wayback Machine. of the Rome Statute of the International Criminal Court specifically lists the "crime of apartheid" as one of eleven recognized crimes against humanity.
  11. ^ Database of National Implementing Legislation
  12. ^ United Nations. Multilateral treaties deposited with the Secretary-General: Rome Statute of the International Criminal Court. Accessed 16 July 2007.
  13. ^ UN International Convention on the Elimination of All of Racial Discrimination, New York 7 March 1966
  14. ^ Metraux, A. (1950). "United nations Economic and Security Council Statement by Experts on Problems of Race". American Anthropologist. 53 (1): 142–145. doi:10.1525/aa.1951.53.1.02a00370.
  15. ^ "Racist and Religious Crime – CPS Prosecution Policy". The CPS. Retrieved 2010-05-23.
  16. ^ a b United Nations (2002). "Rome Statute of the International Criminal Court, Part 2, Article 7". Archived from the original on 12 July 2007. Retrieved 21 July 2007.
  17. ^ Seytoff, Alim A (2 June 2014). "China's Uighurs claim cultural 'genocide'". Al Jazeera. Retrieved 14 August 2018.
  18. ^ "Apartheid with Chinese characteristics: China has turned Xinjiang into a police state like no other". The Economist. 31 May 2018. Retrieved 14 August 2018.
  19. ^ "Profile: The Dalai Lama", BBC News, April 25, 2006.
  20. ^ United States Congressional Serial Set, United States Government Printing Office, 1993, p. 110.
  21. ^ "The rural-urban divide: Ending apartheid". The Economist. 19 April 2014. Retrieved 14 August 2018. (Subscription required (help)).
  22. ^ "China rethinks peasant 'apartheid'". BBC News. 10 November 2005. Retrieved 14 August 2018.
  23. ^ "Chinese Society: Change, Conflict and Resistance", by Elizabeth J. Perry, Mark Selden, page 90
  24. ^ "China's New Confucianism: Politics and Everyday Life in a Changing Society", p. 86, by Daniel A. Bell
  25. ^ "Trust and Distrust: Sociocultural Perspectives", p. 63, by Ivana Marková, Alex Gillespie
  26. ^ Lu, Rachel (31 July 2014). "China Is Ending Its 'Apartheid.' Here's Why No One Is Happy About It". Foreign Policy. Retrieved 14 August 2018.
  27. ^ Sheehan, Spencer (22 February 2017). "China's Hukou Reforms and the Urbanization Challenge". The Diplomat. Retrieved 14 August 2018.
  28. ^ Dugard, John. "Implementation of General Assembly resolution 60/251 of 15 March 2006 entitled "Human Rights Council": Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard" (PDF). p. 3. 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.
  29. ^ Tilley, V., ed., "Occupation, Colonialism, Apartheid? A Reassessment of Israel's Practices in the Occupied Palestinian Territories under International Law".
  30. ^ Richard Falk Report to the UN General Assembly, 30 August 2010, paragraph. 5 accessdate= 19.12.2010, paragraph 5
  31. ^ Reuters, (15 March 2017). "Israel imposes 'apartheid regime' on Palestinians: U.N. report". Beirut, Lebanon. Retrieved 10 July 2018.
  32. ^ "U.N. Diplomat Behind Report Accusing Israel of Apartheid Quits". www.nytimes.com. March 17, 2017.
  33. ^ Senior U.N. official quits after 'apartheid' Israel report pulled, Reuters, 17 March 2017
  34. ^ Goldstone, Richard J. (October 31, 2011). "Israel and the Apartheid Slander". The New York Times.
  35. ^ http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf
  36. ^ Jilani, Hina; Chinkin, Christine; Travers, Desmond (14 April 2011). "Goldstone report: Statement issued by members of UN mission on Gaza war". The Guardian. London.
  37. ^ Sandra Mackey's account of her attempt to enter Mecca in Mackey, Sandra (1987). The Saudis: Inside the Desert Kingdom. W. W. Norton & Company. pp. 63–64. ISBN 0-393-32417-6.
  38. ^ Saudi Institute (2001).
  39. ^ [2]
  40. ^ Alan M. Dershowitz, Treatment of Israel strikes an alien note, Jewish World Review, November 8, 2002.
  41. ^ Taheri (2003).
  42. ^ Congressional Human Rights Caucus (2002).
  43. ^ To express the policy of the United States to ensure the divestiture... 109th CONGRESS, 1st Session, H. R. 4543.
  44. ^ Religious Apartheid in Saudi Arabia, Freedom House website. Retrieved July 11, 2006.
  45. ^ Johnson, Hilde F. (2011). Waging Peace in Sudan: The Inside Story of the Negotiations that Ended Africa's Longest Civil War. Sussex Academic Press. p. 38. ISBN 978-1-84519-453-6.
  46. ^ Vukoni Lupa Lasaga, "The slow, violent death of apartheid in Sudan," 19 September 2006, Norwegian Council for Africa.
  47. ^ George Ayittey, Africa and China, The Economist, 19 February 2010
  48. ^ "How the Multilateral Institutions Compounded Africa's Economic Crisis", George B.N. Ayittey; Law and Policy in International Business, Vol. 30, 1999.
  49. ^ Koigi wa Wamwere (2003). Negative Ethnicity: From Bias to Genocide. Seven Stories Press. p. 152. ISBN 978-1-58322-576-9.
    George B.N. Ayittey (15 January 1999). Africa in Chaos: A Comparative History. Palgrave Macmillan. p. 50. ISBN 978-0-312-21787-7.
    George B. N. Ayittey (2006). Indigenous African Institutions. Transnational Publishers. ISBN 978-1-57105-337-4.
    Diallo, Garba (1993). "Mauritania, the other apartheid?". Current African issues. Nordiska Afrikainstitutet (16).
  50. ^ Alan Dershowitz (3 November 2008). The Case Against Israel's Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace. John Wiley & Sons. p. 24. ISBN 978-0-470-44745-1.
  51. ^ Bauch, Hubert (6 March 2009). "Ex-minister speaks out against Sudan's al-Bashir". Montreal Gazette.

Further reading

  • Introductory note by John Dugard on the International Convention on the Suppression and Punishment of the Crime of Apartheid in the Historic Archives of the United Nations Audiovisual Library of International Law
  • Procedural history of the International Convention on the Suppression and Punishment of the Crime of Apartheid in the Historic Archives of the United Nations Audiovisual Library of International Law

External links

  • 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
  • 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
  • Human Rights Watch Report: Separate and Unequal. Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, December 19 2010
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