Crime of apartheid


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. 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".

History

The term , from Afrikaans for "apartness," was the official name of the South African system of racial segregation which existed after 1948. The use of Apartheid which amounts to a large collection of laws and the implementation thereof is a Dutch loan word. This use of Dutch in Legal English is unique both in the fact that it is not of Latin origin and denotes a code of laws. 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 Soviet Union 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. 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, Guinea, Hungary, Iraq, Mongolia, Poland, Qatar, Somalia, Syria, Ukraine, the USSR, the United Arab Emirates, Tanzania, Yugoslavia.
"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, 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. In explanation of the US vote against the convention, Ambassador Clarence Clyde Ferguson Jr. said: "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 provides for individual criminal responsibility for crimes against humanity, including the crime of apartheid.
The International Criminal Court 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, 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.

ICSPCA definition of the crime of apartheid

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




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:

Definition of racial discrimination

According to the United Nations Convention on the Elimination of All Forms of Racial Discrimination,
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. Similarly, in British law the phrase racial group means "any group of people who are defined by reference to their race, colour, nationality or ethnic or national origin".

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

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.

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 and sinicization have been likened to "cultural genocide" and apartheid by some activists. 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.

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

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 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.
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. 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". 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 BDS 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. The report was withdrawn from the ESCWA website on the instructions of Secretary-General António Guterres, and Rima Khalaf resigned from her position at the UN.
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. However the Goldstone Report does not contain any reference to charges of apartheid, whether supported or not. 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 findings and to cast doubts on its credibility".

Myanmar

Since Myanmar's transition to relative democratic rule beginning in 2010, the government's response to the Rohingya genocide has been widely condemned, and has been described as an ethnic cleansing by the United Nations, ICC officials, and other governments.
Myanmar's current policies towards the Rohingya population include ethnic segregation, limited access to resources, a lack of civil rights, ID card and special permit systems without any guarantee of citizenship, restrictions on movement, and even institutionalized racial definitions, with the Rohingya being officially labelled as "Bengali races". Additionally, the UN has explicitly condemned Myanmar over creating an apartheid state, threatening to withdraw aid from the country.

North Korea

Some commentators have compared modern-day North Korea to apartheid South Africa. In an anonymous News24 opinion piece, the African National Congress Youth League was criticized for its praise of former North Korean leader Kim Jong-il after his death. Parallels were made between North Korea and apartheid South Africa, including institutionalized ideas of racial purity, the heavy restrictions on letting foreign citizens live in the country, and the living conditions in North Korea outside of Pyongyang being compared to South Africa's bantustan system. Other points of comparison have included the songbun system being equivalent to the Population Registration Act, both states having developed nuclear weapons for self-defense purposes, international isolation, and the proliferation of race myths in national history.

Saudi Arabia

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

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 "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." 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.

South Africa

The name of the crime comes from a system of racial segregation in South Africa enforced through legislation by the National Party, 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. 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 Arab solidarity" to carry out policies of apartheid and ethnic cleansing.
American University economist George Ayittey accused the Arab government of Sudan of practicing acts of racism against black citizens. According to Ayittey, "In Sudan... the Arabs monopolized power and excluded blacks – Arab apartheid." Many African commentators joined Ayittey in accusing Sudan of practising Arab apartheid.
Alan Dershowitz labeled Sudan an example of a government that "actually deserve" the appellation "apartheid". Former Canadian Minister of Justice Irwin Cotler echoed the accusation.