Applicability of the Crime of Apartheid to Israel
by Karine Mac Allister
© 1998-2008 badil.org
Part 1:
The Crime of Apartheid under International Law
Apartheid violates a jus cogens norm of international law and is a crime against humanity.7 Central to the definition of apartheid is the Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the Apartheid Convention) which defines apartheid as "similar policies and practices of racial segregation and discrimination as practiced in southern Africa" which have "the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them." While the Convention is based on the South African experience, it is not limited to it.8 In its General Comment, the Committee on the Elimination of Racial Discrimination further explained that while "the reference to apartheid may have been directed exclusively to South Africa... the article [condemning racial segregation and apartheid] as adopted prohibits all forms of racial segregation in all countries."9
The Convention on the Elimination of Racial Discrimination broadly defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, color, 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."10 The Apartheid Convention also defines apartheid as violations of international law perpetrated by one racial group against another in order to obtain and maintain supremacy - or in other terms, "all those activities and practices which are intended to protect the advantages of a dominant group and/or to maintain or widen the unequal position of a subordinate group."11 Central to the logic of apartheid is "[disaggregation of] the other along ethnically defined lines so as to divide and rule."12In this sense, apartheid is one of the most severe forms of racism.
The crime of apartheid includes denial of the right to life and liberty, such as murder, serious bodily or mental harm, infringement of freedom or dignity, torture or cruel, inhuman or degrading treatment or punishment and arbitrary arrest and illegal imprisonment. It also includes the deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part, exploitation of labor, including forced labor, and persecution of organizations and persons who oppose apartheid.13
In addition, apartheid is
"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 recognized 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."14
Lastly, apartheid includes
"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."15
Under international humanitarian law, the first Additional Protocol to the Geneva Conventions also includes as grave breaches "practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination."16
Under international criminal law, apartheid is clearly recognized as a crime against humanity when committed as part of a widespread or systematic attack against civilian population, i.e., inhumane acts that are massive in scale or result from deliberate and systematic planning. The Rome Statute defines apartheid as inhumane acts "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." These acts can include deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."17
The Apartheid Convention includes one of the most expansive definitions of international criminal jurisdiction and enforcement.18 The Convention stipulates that "international criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organizations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State, whenever they: a) Commit, participate in, directly incite or conspire in the commission of the acts mentioned in article II of the present Convention; b) Directly abet, encourage or co-operate in the commission of the crime of apartheid."19 The universal jurisdiction granted by the Convention enables the prosecution of individuals, members of organizations and agents of the state, who can be held criminally liable regardless of their location and their motive, and whether they encourage, cooperate with, or directly commit actions or omissions as part of the crime of apartheid.20
Applicability of the Crime of Apartheid to Israel
The Crime of Apartheid under International Law
Applicability of the Crime of Apartheid to Israel
Apartheid across the Green Line and Boundaries
Conclusion
Apartheid Notes