The use of the word ‘apartheid’ in its legal meaning can sometimes, but not always, generate considerable power and attention. The related crime against humanity of persecution never seems to attract the same interest.
Our finding in 2020 that the Myanmar authorities were committing the crime against humanity of apartheid against ethnic Rohingya received considerable coverage of the facts of their mistreatment, though less about the crime itself.
Our new findings that Israeli authorities were committing the crime against humanity of persecution against Palestinians received limited attention. But our finding that they were also committing the crime of apartheid has received an extraordinary amount of attention — both support and criticism.
But in researching the law for both crimes, it has become clear that in terms of justice, they are ‘forgotten’ crimes against humanity, and are rarely prosecuted.
There is no doubt about the legal status of both crimes. For 50 years apartheid has been treated as a crime against humanity, as set out in two treaties that states have ratified and often incorporated into their domestic law. But the crime has not resulted in a single conviction. It has never apparently been prosecuted in a court. Persecution, the worst forms of discriminatory abuses, has been an international crime for at least 70 years, but has rarely been prosecuted outside of armed conflicts.
The prohibition of apartheid in international law goes beyond its status as an international crime. A general prohibition of apartheid is a peremptory norm of international law, the International Law Commission has said. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) requires all states parties to “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” In the law of armed conflict, the 1977 Additional Protocol I to the Geneva Conventions identifies “practices of apartheid and other inhuman and degrading practices… based on racial discrimination” as a grave breach of the treaties.
But it is as a crime against humanity that apartheid is most clearly prohibited under international law. This was first stated in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes. In 1973 the UN General Assembly adopted a specific treaty, the Convention on the Suppression and Punishment of the Crime of Apartheid, which came into force in 1976. This treaty set out a definition of apartheid as a crime against humanity, consisting of ‘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’.
And crucially, the 1998 Rome Statute of the International Criminal Court lists apartheid as one of the 11 distinct crimes against humanity, defining it as inhumane acts ‘committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other group or groups and committed with the intention of maintaining that regime.’
Persecution as a crime against humanity dates back at least to the 1945 Charter of the International Military Tribunal in Nuremberg, which included ‘persecutions on political, racial or religious grounds’. This crime was also part of the statutes of the former Yugoslavia and Rwanda tribunals.
Persecution was also incorporated as a distinct crime against humanity in the Rome Statute, defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” The statute broadened the scope of the crime to include persecution on political, racial, national, ethnic, cultural, religious, gender or other grounds that are “universally recognized as impermissible under international law”. But it also limited this crime, allowing it to be prosecuted only “in connection” with other crimes against humanity in the Rome Statute.
The customary law definition of the crime of persecution contains no such limitation. The late international scholar and judge Antonio Cassese said the crime under customary international law consists of acts that result in grave violations of fundamental rights that are part of a widespread or systematic practice and that are committed with discriminatory intent.
For either persecution or apartheid to qualify as a crime against humanity, they must have been committed as part of a widespread or systematic attack against a civilian population. The Rome Statute defines this as being the commission of multiple such acts in line with a state or organizational policy.
Despite their clear status as international crimes, with definitions, it seems difficult to understand at first why these crimes are not being prosecuted. The situations they are designed to address, the worst forms of discrimination, still, sadly, exist.
It seems that the lack of court rulings itself is one of the biggest barriers to investigating these crimes. The result is a lack of judicial interpretations of key terms like ‘domination’ for apartheid. Until criminal investigators, prosecutors, lawyers and courts are comfortable with the definitions of the crimes, prosecutions are not likely to happen. It has become a vicious circle – no court rulings on the crimes means no judicial guidance, which deters any criminal investigations, which leads to a continuing lack of court rulings.
But we’ve found in our research that it is possible to apply the definitions of both crimes and to determine whether the crimes are taking place. We were not assessing which individuals may be responsible – as a prosecutor’s office and criminal court would do. But the current definitions of both crimes give an indication of the evidence needed for a prosecution.
Proving persecution requires showing severe and intentional deprivation of rights of a group, plus evidence that such severe deprivation of rights was committed with discriminatory intent and pursuant to a state policy, and was widespread or systematic.
For the crime of apartheid, taking the definitions in both treaties, we found that three key elements emerge. These are an intent to maintain a system of domination by one racial group over another; systematic oppression by one racial group over another, and in this context inhumane acts, carried out on a widespread or systematic basis . The inhumane acts are listed in both treaties, but neither domination nor systematic oppression in this crime has yet been defined in judicial rulings.
The meaning of the term ‘racial group’ in the crime of apartheid, or persecution on racial grounds, can be assessed with reference to the definition of racial discrimination in ICERD. It means not just treatment on the basis of genetic traits but also treatment on the basis of descent and national or ethnic origin.
However, the lack of clear legal guidance on the interpretation of these crimes is not the only reason so few prosecutions have taken place. Part of the reason is that words like ‘apartheid’ are still not generally understood as referring to crimes, but rather as descriptive terms.
One issue is that the word ‘apartheid’ is still associated by many with the situation decades ago in its country of origin, South Africa. But like all international crimes the crime of apartheid is not frozen in its origins. It has become a universal legal term. The Rome Statute was drafted in the late 1990s, after the end of apartheid in South Africa.
Another problem may be the common use of the term “apartheid state”. This is not found in international legal definitions but may give the impression that the entire country would need to be responsible for apartheid for it to be a crime. All crimes against humanity under the Rome Statute require evidence of a state or organizational policy, but for other crimes there is no equivalent use of terms like ‘persecution state’ or ‘torture state’. The ICC definition of the crime mentions the context of an ‘institutionalized regime’, but it is clear this is not necessarily the same as a state. It is individuals who commit international crimes, and it is individuals who should be prosecuted.
The Rome Statute itself probably deters prosecution of the crime of persecution by not treating it as a stand-alone crime, making it appear as a second class, ‘add-on’ crime. This could be rectified by a new convention on crimes against humanity, removing this limitation on the definition. Human Rights Watch and others have been pushing for that change, and such a convention is currently being debated in the UN General Assembly’s 6th Committee.
Another likely barrier to prosecutions is that criminal investigation of possible crimes of persecution or apartheid needs a different type of expertise from that often seen in police forces and prosecutors’ and judges’ offices. It requires an understanding of and ability to document and prove discrimination, and deliberate discriminatory intent, as well as to document the factual abuses. As a former discrimination lawyer, I’ve found that the type of evidence needed to prove discrimination in court can be very different from that needed to prove a crime like torture.
The offices of prosecutors and investigators dealing with international crimes should engage experts in discrimination when investigating apartheid and persecution. Documenting the level of discrimination necessary for apartheid or persecution should be possible, though, even at criminal levels of proof. These crimes are the worst, most obvious forms of discrimination. They will be prosecutable only when the evidence of intentional abusive discrimination by state officials is clear and obvious – and in the worst cases, it should be.
But the quest for clearer legal understanding of these crimes cannot rely on prosecutors and the criminal justice system alone. Developing ‘soft law’ and a greater public discussion of these crimes will give some guidance to those investigating, prosecuting, defending, and judging the crimes. The ICERD Committee, and other human rights bodies addressing discrimination, can and should play leading roles in setting out what the crimes of apartheid and persecution mean in practice. Human Rights Watch has called for a UN global envoy for the crimes of persecution and apartheid to identify what steps states, and judicial institutions, should take to prosecute these crimes fairly.
There is a vital need to ensure that these two crimes against humanity are much more clearly understood, and are called by their name when they are being committed — and that those responsible are prosecuted. This is crucial for the victims, and also so that those most responsible know they may face justice for many years to come. The crimes against humanity of apartheid and persecution should no longer be forgotten.
