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Max Planck Encyclopedia of Public International Law [MPEPIL]


Julia Gebhard

Religion — Equality before the law — Race — Apartheid

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Definition of Terms

The term ‘apartheid’ derives from the Afrikaans word for ‘apartness’ or ‘separateness’. Originally, it was used only to describe the distinctive South African system of racial segregation and classification along racial lines accompanied by a denial of basic human rights and political rights to the black and so-called ‘coloured’ (mixed race) population of South Africa between 1948 and 1994. Throughout the years, however, and particularly after apartheid rule had ended in South Africa in 1994, the meaning of the term has broadened. Today, it is used as a synonym for any ‘racial segregation and discrimination policies enacted by a government against a section of its own people’ (de Than and Shorts 110; see also Equality of Individuals; Racial and Religious Discrimination).

Apartheid was first labelled a crime against humanity in 1973 in Art. 1 International Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid Convention’; see also Crimes against Humanity; International Criminal Law). The definition set out in Art. 2 Apartheid Convention specifically refers to ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa’, but was not limited to the practice of apartheid in southern Africa, either in geographical terms or in terms of the acts prohibited. The crime of apartheid is also punishable under Art. 7 (1) (j) Rome Statute of the International Criminal Court (ICC) (‘Rome Statute’).

B. Historical Background

1. Developments in South Africa prior to the Institutionalization of Apartheid

The history of the South African system of racial discrimination and segregation dates back well before it was officially institutionalized as apartheid in 1948. Since the colonization of the Cape of Good Hope by the Dutch in 1652, the peoples living in the territory of what is now the Republic of South Africa were faced with suppression, extermination, and war (see also Colonialism). After the Cape Colony was occupied by British troops in 1806 and became a British colony in 1815, the prohibition of slave trade in the British Empire led to the introduction of a system of pass laws and forced labour, dubbed the ‘Hottentot Code’, which affected mostly the Khoikhoi people (see also Forced Labour/Slave Labour; Slavery).

After about 6000 Boers left the Cape Colony during the mid-to late 1830s in what is known as the ‘Great Trek’, they founded the ‘Boer States’, the most influential of which were the Orange Free State and Transvaal (later renamed South African Republic). Even though there were many political disagreements between the Boer settlers, they agreed that ‘the people desire to permit no equality between coloured people and the white inhabitants either in Church or in State’ (Art. 9 Constitution of the Republic Transvaal, see Eybers 364). The British Crown Colony of Natal conducted the first attempts at racial segregation in 1865, when single ethnic groups were allocated in different reservations, where the inhabitants were able to earn a living as farmers. This resulted in a shortage of African farm workers in the colony of Natal, so that workers from India were recruited from 1860 onwards. They often remained in Natal after their contracts expired and settled there. With the discovery of diamonds in the Cape Colony in 1867, rigorous pass laws and mechanisms to control the workers at the diamond mines were introduced.

With the end of the two Boer Wars (also referred to as the ‘South African Wars’; 1880–81 and 1899–1902), the political destiny of what is now the Republic of South Africa was more and more guided by the Boers, for whom the foundation of the South African Union in 1910 was a big success. Already between 1903–5, the South African Native Affairs Commission laid the foundation of systematic segregation along racial lines in cities and reservations. Between the foundation of the South African Union and the official introduction of the system of apartheid, a number of laws were passed which restricted and regulated the rights of the black population in areas such as employment, property law, and political participation. Amongst those laws were the 1911 Native Labour Regulation Act (Act No 15 [1911] 10 The Union Statutes 89), the 1911 Mines and Works Act (Act No 12 [1911] 1 Statutes of the Union of South Africa 374), the 1913 Natives Land Act (Act No 27 [1913] 10 The Union Statutes 135), the 1922 Apprenticeship Act (Act No 26 [1922] 12 Statutes of the Union of South Africa 116), the 1923 Native (Urban Areas) Act (Act No 21 [1923] 13 Statutes of the Union of South Africa 140), the 1924 Industrial Conciliation Act (Act No 11 [1924] 14 Statutes of the Union of South Africa 32), the 1927 Native Administration Act (Act No 38 [1927] 10 The Union Statutes 25), the 1932 Native Service Contract Act (Act No 24 [1932] 10 The Union Statutes 115), the 1936 Representation of Natives Act (Act No 10 [1936] 10 The Union Statutes 443), and the 1936 Natives Trust and Land Act (Act No 18 [1936] 10 The Union Statutes 187).

2. The South African Apartheid State

The concept of apartheid as a strict system of racial segregation was coined by a commission appointed by the National Party (‘NP’), which used the concept in its 1948 election campaign. After the NP came into power, it began to institutionalize the segregation along racial lines in basically all areas of life including education, medical care, political participation, public services, property law, and family law. It did not merely affect the relations between the white and the black population, but also restricted the rights of ‘coloured’ persons under the 1950 Population Registration Act (Act No 30 [1950] 40 Statutes of the Union of South Africa 275), as well as those of the Indian minority (Minorities, International Protection).

The 1949 Prohibition of Mixed Marriages Act (Act No 55 [1949] 39 Statutes of the Union of South Africa 614) and the 1957 Amendment of the 1927 Immorality Act (Act No 23 [1957] 47 Statutes of the Union of South Africa 276) prohibited any form of intimate relations between white persons and members of any other race. Between 1957 and 1980, about 11,500 persons were convicted based on these acts (see Raabe 47). The 1945 Natives (Urban Areas) Consolidation Act, which was adopted prior to NP rule (Act No 23 [1945] 10 The Union Statutes 337), the 1950 Group Areas Act (Act No 41 [1950] 40 Statutes of the Union of South Africa 407), and the 1954 Natives Resettlement Act (Act No 19 [1954] 44 Statutes of the Union of South Africa 139) established the rigid separation of races in residential areas and reserved the rights to own, use, and live on land for racial groups in a specific area. This was implemented particularly strictly in large cities like Johannesburg, where the 1952 Prevention of Illegal Squatting Act (Act No 24 [1952] 42 Statutes of the Union of South Africa 133) was used to deport black persons. Permission for black individuals to remain in the cities was regulated in the 1952 Natives (Abolition of Passes and Co-ordination of Documents) Act (Act No 67 [1952] 42 Statutes of the Union of South Africa 1013) and the 1952 Natives Law Amendment Act (Act No 54 [1952] 42 Statutes of the Union of South Africa 781). Tens of thousands of people were resettled using these laws. What became known as ‘petty apartheid’ (‘small apartheid’) was provided for in the 1953 Reservation of Separate Amenities Act (Act No 49 [1953] 43 Statutes of the Union of South Africa 70), which restricted the use of restaurants, cultural facilities, public transport, schools, universities, public parks, beaches, and various other facilities open to the public for members of a specific race only.

The 1909 Constitution of the Union of South Africa (An Act to constitute the Union of South Africa [‘South Africa Act’] in WPM Kennedy and HJ Schlosberg The Law and Custom of the South African Constitution [OUP London 1935] Appendix IV 559) provided for a qualified vote for black or ‘coloured’ persons in two of the provinces of the Union, namely the Cape Province and Natal. This right was taken away from the black population by the 1936 Representation of Natives Act (Act No 10 [1936] 10 The Union Statutes 443). The ‘coloured’ voting right was, after fierce opposition from courts and the public, finally removed in 1956 with the Separate Representation of Voters Act (Act No 30 [1956] 46 Statutes of the Union of South Africa 755), which placed ‘coloured’ voters on a separate voters’ roll (see also Elections, Right to Participate in, International Protection).

In the late 1950s/early 1960s, the South African government established separate reservation areas, the ‘Bantustans’ (later renamed ‘homelands’), as part of the concept of ‘separate development’ (South African Bantustan Policy). This policy was enforced with the 1961 Bantu Councils Act (Act No 79 [1961] 51 Statutes of the Union of South Africa 1266) which introduced an ‘independent’ administration placed under the supervision of the central government. Additionally, the 1959 Promotion of Bantu Self-Government Act (Act No 46 [1959] 49 Statutes of the Union of South Africa 512) established a system of ‘self-government’ for black persons in areas assigned according to tribes while simultaneously revoking the last remainders of non-white political participation in South Africa and forcefully removing black persons living in designated ‘white’ areas in the countryside as well as within cities into the homelands (Forced Population Transfer). The 1970 Bantu Homelands Citizenship Act (Act No 26 [1970]) took away South African citizenship from black persons and made them instead ‘citizens’ of the ‘homelands’ that became ‘self-administrated territory’ with the 1971 Bantu Homelands Constitution Act (Act No 26 [1971]).

10 Opposition against the apartheid regime in general and the Bantustan policies in particular became increasingly hazardous in the wake of the 1960 Unlawful Organizations Act (Act No 34 [1960] 50 Statutes of the Union of South Africa 409), the 1963 General Law Amendment Act (Act No 37 [1963] 53 Statutes of the Union of South Africa 376), and the 1967 Terrorism Act (Act No 83 [1967] 57 Statutes of the Union of South Africa 1236). Some political organizations which vigorously resisted apartheid were prohibited and the police were provided with extensive powers in the treatment of political suspects.

11 The educational system had already been brought in line with the official apartheid policy in 1953, with the Bantu Education Act (Act No 47 [1953] 43 Statutes of the Union of South Africa 258), which reduced the number of missionary schools in favour of State-run ‘traditional’ schools with black teachers. From 1976 onwards, school instruction had to be given in Afrikaans. The goal set by this form of education had been formulated in 1954 by the then–Minister of Native Affairs and subsequent Prime Minister H Verwoerd, who stated that the ‘natives’ should be ‘taught from childhood to realize that equality with Europeans is not for them’ (Sir R Birley African Education in South Africa 67 African Affairs [1968] 153).

12 A combination of internal unrest and internal and external opposition, political pressure, and isolation, mainly through the imposition of sanctions, weakened the South African apartheid regime, which, in the 1980s, relaxed many of its rigid laws in an attempt to silence its critics at home and abroad. At the same time, a national state of emergency was declared in 1985, which lasted, with interruptions, until 1990, when the State ban of anti-apartheid organizations like the African National Congress (‘ANC’) was lifted and the leader of the ANC, Nelson Mandela, was released after having spent 27 years in prison (see also Emergency, State of). On 27 April 1994, South Africa held its first free and equal elections. On 14 May 1997, the last State President of the apartheid era, FW de Klerk, testified in a hearing of the South African Truth and Reconciliation Commission and stated:

Apartheid was wrong. I apologize in my capacity as leader of the National Party to the millions of South Africans who suffered the wrenching disruption of forced removals in respect of their homes, businesses and land…Who over the decades and indeed centuries suffered the indignities and humiliation of racial discrimination. Who for a long time were prevented from exercising their full democratic rights in the land of their birth…And who in any other way suffered as a result of discriminatory legislation and policies (Testimony by Frederik Willem de Klerk at a Special Hearing of the Truth and Reconciliation Commission [National Party Political Recall] at Cape Town on 14 May 1997, available at www.doj.gov.za/trc/ [24 November 2008]; Truth and Reconciliation Commissions).

3. Other States and Regimes with Similar Segregationist Practices

13 Even though the term ‘apartheid’ had been coined in what is now the Republic of South Africa, there are also other States and regimes which institutionalized systems of racial segregation similar to the one in South Africa. Some of the practices of Nazi Germany, for example, could be classified as apartheid. Particularly relevant in this context are the prohibition of ‘interracial’ marriages between ‘Aryans’ and Jews by means of the so-called ‘Nuremberg Laws’, followed by the systematic discrimination and persecution of Jews and the pseudoscientific racial classification of the inhabitants of annexed or occupied territories and countries (see also Annexation Anti-Semitism; Occupation, Belligerent). Other examples include the policy of racial segregation pursued by the United States of America until the late 1960s and the racist legislation introduced in Rhodesia/Zimbabwe under Ian Smith until its independence in 1980. In recent years, a growing number of scholars and international documents have stated that some practices institutionalized by Israel in the Occupied Palestinian Territories amount to apartheid. In 2012, the UN Committee on the Elimination of Racial Discrimination in its Concluding Observations on Israel, reminded Israel of the Committee’s General Comment 19 concerning the Prevention, Prohibition and Eradication of All Policies and Practices of Racial Segregation and Apartheid. It urged Israel to ‘take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory and which violate the provisions of article 3 of the Convention.’

C. Legal Instruments Dealing with Apartheid

14 A number of instruments adopted under the auspices of the United Nations have dealt with apartheid over the last 40 years. Most of them were tailored to the South African system of apartheid or at least referred to South Africa.

15 While the International Covenant on Civil and Political Rights includes only a general non-discrimination clause in Art. 26 and stresses equality before the law, Art. 3 of the UN Convention on the Elimination of All Forms of Racial Discrimination of 1965 explicitly stresses that ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.’

16 The UN General Assembly (‘UNGA’; United Nations, General Assembly), in particular excelled at regularly addressing apartheid as a violation of human rights and from 1965 repetitively condemned the practice of apartheid as a crime against humanity (see UNGA Res 2054 (XX) [15 December 1965] 20th Session Supp 14, 16–18; UNGA Res 2074 (XX) [17 December 1965] GAOR 20th Session Supp 14, 60–61; UNGA Res. 2202 (XXI) [16 December 1966] GAOR 21st Session Supp 16, 2–3; UNGA Res 2307 (XXII) [13 December 1967] GAOR 22nd Session Supp 16 vol 1, 19–20; UNGA Res 2396 (XXIII) [2 December 1968] GAOR 23rd Session Supp, 19–21; UNGA Res 2671 F (XXV) [8 December 1970] GAOR 25th Session Supp 28, 33–34; UNGA Res 2775 E (XXVI) [29 November 1971] GAOR 26th Session Supp 29, 42–43). The United Nations Security Council (‘UNSC’), although more cautious in its approach than the UNGA, labelled the policy of apartheid as a ‘crime against the consciousness and dignity of mankind’ which ‘seriously disturbs international peace and security’ (see eg UNSC Res 392 [1976] [19 June 1976] SCOR 31st Year 11 and 473 [1980] [13 June 1980] SCOR 35th Year 18–19).

17 Faced with the South African government’s persistent rejection of UNGA resolutions and in the wake of the South African’s police shooting of peaceful demonstrators in Sharpeville, the UNSC began considering the situation in South Africa in 1960 and called upon the South African government to abandon its policies of apartheid and racial discrimination (UNSC Res 134 [1960] [1 April 1960] SCOR 15th Year, 1–2). In 1963, for the first time ever in the history of the UN, it called for an arms embargo against a Member State (UNSC Res 181 [1963] [7 August 1963] SCOR 18th Year, 7). However, the resolution was not adopted under Chapter VII of the UN Charter and it was not mandatory for the UN Member States.

18 UNGA Resolution 1761 (XVII) of 6 November 1962 (GAOR 17th Session Supp 9–10) requested Member States to take specific measures to bring about the abandonment of apartheid, including breaking of diplomatic, trade, and transport relations (see also Diplomatic Relations, Establishment and Severance). This measure was not echoed in the UNSC for two decades. It was only in 1985 that the UNSC adopted Resolution 569 of 26 July 1985 (SCOR 40th Year 8–9), urging Member States to adopt a wide range of economic measures against South Africa. In September 1985, the European (Economic) Community decided on a system of limited trade and financial sanctions. This was followed by a similar scheme of measures by the Commonwealth. The United States Comprehensive Anti-Apartheid Act of 1986 (HR 4868) provided for restrictions in the lending of money and imposed import bans on iron, steel, coal, uranium, textiles, and agricultural goods from South Africa. However, strategic materials, diamonds and most forms of gold were omitted from the ban and the United States, along with the United Kingdom, vetoed a draft resolution in the UNSC, following the banning of organizations in South Africa, for selective mandatory sanctions.

19 The boycott of South African products or products of companies maintaining close trading links with South Africa also became the subject of several national court decisions, eg in the United Kingdom, where a court held that a local authority’s policy to boycott a company with trading links to South Africa was tainted with an improper purpose, namely to oblige the company to sever links with South Africa when those links were not contrary to English law (see R v Lewisham LBC ex p. Shell UK [DC]).

20 Art. 1 (b) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (‘Statutory Limitations Convention’), which was opened for signature on 26 November 1968, excludes statutory limitations for ‘inhuman acts resulting from the policy of apartheid’. Even though the Statutory Limitations Convention does not expressly mention apartheid as a crime against humanity, it refers to para. 1 UNGA Resolution 2202 (XXI) of 16 December 1966, which condemns ‘the policies of apartheid practised by the Government of South Africa as a crime against humanity’. Furthermore, under the same heading in which it mentions apartheid, Art. 1 Statutory Limitations Convention deals with crimes against humanity ‘as they are defined in the Charter of the International Military Tribunal, Nurnberg’. According to Art. 2 Statutory Limitations Convention, the provisions of the convention apply both to State representatives and to ‘private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion’.

21 In 1971, the International Court of Justice (ICJ) issued the last one of a number of advisory opinions regarding South West Africa (now Namibia; South West Africa/Namibia [Advisory Opinions and Judgments]), a territory that had been under the mandate of South Africa since the end of World War I (see also Versailles Peace Treaty [1919]). The ICJ held that the UNGA had been authorized to terminate the South African mandate over the territory of South West Africa in Resolution 2145 (XXI) of 27 October 1966 (GAOR 21 Supp 2–3) and that the continued presence of South Africa within the territory of South West Africa was illegal. In its advisory opinion, the ICJ referred, inter alia, to the imposition of the practice of apartheid in that territory and held that

under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter (Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 [1970] [Advisory Opinion] 131).

22 In 1973, the UNGA approved the International Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid Convention’) by UNGA Resolution 3068 (XXVIII). Art. 1 (1) Apartheid Convention declared apartheid a crime against humanity and stressed that ‘inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination’ were a violation of the principles of international law. Pursuant to Art. 1 (2) Apartheid Convention, ‘organizations, institutions and individuals committing the crime of apartheid’ were labelled criminal. Art. 2 Apartheid Convention entailed a definition of the crime of apartheid and a specific reference to ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa’ as an example of the crime. According to Art. 2 Apartheid Convention, the crime of apartheid included a number of inhuman acts ‘committed for the purpose of establishing and maintaining domination by one racial group of persons over any other group of persons and systematically oppressing them’.

23 Art. 85 (4) (c) Geneva Conventions Additional Protocol I (1977), which relates to the protection of victims of international armed conflicts, added ‘practices of apartheid’ along with ‘other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination’, to the ‘grave breaches’ of Additional Protocol I ‘when committed wilfully and in violation of the Conventions of the Protocol’ (see also Armed Conflict, International; Geneva Conventions I–IV [1949]).

24 Almost two decades later, in 1995, the UN Committee on the Elimination of Racial Discrimination issued its General Comment No 19 on Art. 3 of the UN Convention on the Elimination of All Forms of Racial Discrimination. Further, in 1996, the International Law Commission (ILC), in its Draft Code of Crimes against the Peace and Security of Mankind (‘ILC Draft Code of Crimes’), included ‘institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population’ as a crime against humanity (Art. 18 (f) ILC Draft Code of Crimes). In the commentary, which was published along with the provisions, the commission clarified that what they meant to criminalize was ‘in fact the crime of apartheid under a more general denomination’ (Report of the International Law Commission on the work of its forty-eighth session 49).

D. Current Legal Situation

25 The prohibition of apartheid and the principle of racial non-discrimination have often been mentioned as an example of ius cogens norms (eg I Brownlie Principles of Public International Law [6th edn OUP Oxford 2003] 489; Ammoun Sep Op Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 [1970] 78–81). The first reading version of Art. 19 (2) ILC Draft Articles on State Responsibility defined an ‘international crime’ as an ‘internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by the community as a whole’. Art. 19 (3) (c) ILC Draft Articles on State Responsibility (First reading version) referred to apartheid as such a ius cogens norm which is ‘a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being’. The finally adopted version of the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts ([2001] GAOR 56th Session Supp 10, 43) did not entail a set of examples in its Art. 40, which described the scope of the breaches covered by the instrument. However, the official commentary to Art. 40 mentions apartheid as one example of a peremptory norm over which ‘widespread agreement’ (ibid 112) seems to have been reached.

26 Nevertheless, it seems doubtful whether individual criminal responsibility for apartheid has been sufficiently reflected in State practice in order for it to receive the status of a customary law crime. The Republic of South Africa largely abandoned the idea of criminal prosecutions in favour of a truth and reconciliation commission with amnesty granted to those who decided to confess before the commission. Furthermore, the Apartheid Convention entirely lacks the support of western States and has predominantly been ratified by developing States, supposedly because it was ‘held to be limited in space and time’ (Cassese International Criminal Law [2nd edn OUP Oxford 2008] 13).

27 Yet apartheid is enshrined as a crime against humanity in Art. 7 (1) (j) Rome Statute. According to Art. 7 (2) (h) Rome Statute, the crime of apartheid entails ‘inhumane acts of a character similar to those referred to in paragraph 1, 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’. Two observations are particularly interesting when analysing this definition: first, the definition used in Art. 7 (2) (h) Rome Statute does not refer to apartheid as it was practised in South Africa, such as eg, in the Apartheid Convention. In this sense, the definition used by the Rome Statute is broader and covers more situations than the Apartheid Convention, which was, as a reaction to the racial discrimination institutionalized in South Africa, specifically tailored to this situation. Second, as the definition refers to acts ‘similar to those referred to in paragraph 1’, it can be assumed that those actions which already fall under one of the other sub-paragraphs of Art. 7 (1) Rome Statute like murder or torture are not covered by Art. 7 (1) (j) Rome Statute (see eg CK Hall 167–68). In order to clearly define the scope of the crime of apartheid and the acts covered, inspiration can again be drawn from the Apartheid Convention and the acts committed as part of the South African system of apartheid.

E. Concluding Remarks/Assessment

28 The term ‘apartheid’ is inseparably linked to the way in which apartheid was institutionalized and practised in South Africa between 1948 and 1994. With the implosion of the apartheid system in South Africa, the crime has somewhat disappeared from the international agenda. UN activities related to apartheid have ceased. The term ‘apartheid’, at the same time, experienced inflation and the concept is regularly invoked in order to describe extremely unequal or exclusive societies. As such, it has been used to describe the relationship between industrialized and developing countries (‘global apartheid’), the social and economic rift and income disparities within societies, especially in Latin America (‘social apartheid’), the exclusion of women from public life, particularly in some middle eastern societies (‘gender apartheid’), the unequal distribution of disaster relief according to the social origin of victims (‘disaster apartheid’), or the segregation between tourists and inhabitants in many developing countries (‘tourism apartheid’).

29 Even though in cases which involve the deliberate and systematic exclusion and/or oppression of a social group from public life, a parallel to the practice of apartheid seems self-evident, the Rome Statute affirms that the crime of apartheid as punishable under international criminal law requires the high threshold of a crime against humanity. Thereby, the Rome Statute sets the crime of apartheid apart from attempts to ‘politicize’ the concept, thereby depriving it of its original meaning. Nevertheless, there are still a number of States nowadays that have institutionalized systems in which one racial group is favoured at the expense of others. In this respect, the decision of the drafters of the Rome Statute to include apartheid as a crime against humanity while omitting a direct reference to the South African concept of apartheid is an important contribution to the realization that apartheid is a universal phenomenon and not restricted to a specific geographic area. The inclusion of apartheid as a crime against humanity into the Rome Statute could also facilitate the creation of a customary rule on individual liability for acts of apartheid.

Select Bibliography

  • GW Eybers Select Constitutional Documents Illustrating South African History 1875–1910 (Negro University Press London 1918).
  • GM Carter The Politics of Inequality (Thames and Hudson London 1958).
  • S Dubow Racial Segregation and the Origins of Apartheid in South Africa 1919–36 (Macmillan Hampshire and London 1989).
  • S Raabe ‘Die Geschichte Südafrikas von 162 bis 1978 im Überblick’ in HW Maul Südafrika: Politik, Gesellschaft, Wirtschaft vor dem Ende der Apartheid (Leske und Budrich Opladen 1990).
  • RL Abel Politics by Other Means: Law in the Struggle against Apartheid, 1980–1994 (Routledge London 1994).
  • CK Hall ‘Article 7 (1) (j)’ in O Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Nomos Baden-Baden 1999) 152–54.
  • CK Hall ‘Article 7 (2) (h)’ in O Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Nomos Baden-Baden 1999) 167–70.
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  • J Dugard and J Reynolds ‘Apartheid, International Law and the Occupied Palestinian Territories’ 24(3) EJIL (2013) 867–913.
  • C Lingaas ‘The Crime against Humanity of Apartheid in a Post-Apartheid World’ (2015) 2 Oslo Law Review 86–115.