Ideology, systemic injustice, crimes against humanity: Apart­heid beyond South Africa?

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Apartheid is a charged term, steeped in history, politics, and emotion. It evokes associations and memories of discrimination, oppression, and brutality. Of injustice, privilege, racism, resistance and ultimately liberation. These evoked connotations are predominantly characterized by the history of South Africa.

However, apartheid is no longer just a political concept, but also a legal term. With the adoption of the Anti-Apartheid Convention in 1976, apartheid was qualified as a crime against humanity and made subject to prosecution under international criminal law (if implemented domestically). With the adoption of the Rome Statute in 1998, the International Criminal Court (ICC) also acquired jurisdiction over this crime. However, no one has yet been convicted of apartheid (either nationally or internationally). One of the main reasons for this is the indefiniteness of the legal concept.

The term is complex and to determine whether the accusation of apartheid is justified, it is necessary to delimit and outline the definition. This is because various human rights movements as well as the international press nowadays use the term apartheid in an almost inflationary manner, detached from the South African context, which has led to its populist deformation.

"Apartheid" describes an extreme inequality

In this context, apartheid is used to describe a state of extremely unequal or marginalizing treatment in society. Global apartheid, for example, has been used to describe the relationship between industrialized and developing countries and the social and economic gap and income disparities within societies.

In Latin America, the exclusion of women from public life is referred to as social apartheid, while in Iran and Afghanistan it is termed gender apartheid. European refugee policy has recently been labelled Europe’s Passport Apartheid, not only in the media but also in legal scholarship, due to the different treatment of refugees depending on their country of origin. Saudi Arabia and Qatar stand out due to their discriminatory treatment of migrant workers, which is very strikingly labelled as arabic apartheid in the media.

Apartheid as a legal concept

Besides the moral description of extreme inequality, apartheid can be defined more precisely with the help of existing legal instruments (ICERD, Apartheid Convention, Rome Statute) and the specific content of injustice can be determined. The prevailing view does not require a detailed comparison with the former apartheid regime in South Africa. The term encompasses a policy and practice of racial segregation and the perpetration of inhumane acts with the aim of establishing or maintaining the domination of one racial group over another racial group as well as systematically dominating and oppressing them.

The essential distinction between apartheid and other forms of racial discrimination is that it constitutes the official policy of a state. Racial discrimination must be legal, enacted by legislative acts and implemented or secured by institutions. It is disputed whether the de facto establishment of a racist regime is also covered by the apartheid offence. After all, a state should not be able to avoid this accusation due to a lack of legality if its state organs de facto exercise racial oppression and discrimination without being legally legitimized to do so.

However, after the implosion of the South African apartheid regime in 1992, international efforts to combat this form of state injustice declined rapidly, because it was assumed that apartheid did not exist anywhere else in the world than in southern Africa and that monitoring was therefore no longer necessary. As a result, the Anti-Apartheid Convention has remained almost meaningless in its application and impact and is “one of the most overlooked and understudied human rights treaties”.

Revitalization of the fight against apartheid?

Institutions, human rights organizations and committees are increasingly beginning to deal with possible apartheid injustices and are not hesitating to conduct legal analyses. Discussions on the scope of the apartheid offence could provide more clarity in this respect. This is to be appreciated insofar as it stimulates a kind of revitalization of the fight against apartheid. Because – contrary to the assumption described above – the end of apartheid policy in South Africa did not bring about a state of an apartheid-free world.

The caste systems in India and North Korea (Songbun), which divide their populations into different social classes or castes according to origin and grant people different rights and privileges depending on their class rank, give cause for scrutiny. In India, those who belong to the lowest caste (Mahar), a caste of untouchables, the Dalits, do not even have the privilege of being considered a fully-fledged human being - neither before the law nor in society.

In addition to India’s own state report on the implementation of the convention, a so-called "shadow report" by various organizations was submitted to the UN treaty monitoring body for the Convention against Racial Discrimination (CERD), which reveals the lack of implementation of the legal obligations arising from the convention.

Meanwhile, known is also the accusation against the military junta in the Rakhine state of Myanmar that it is using discriminatory laws, political measures and repressive violence against the Rohingya Muslim ethnic group – on the basis of their ethnicity and religion. This practice would amount to the crime of apartheid and would violate international law.

Israeli settlement policy and apartheid

The International Court of Justice (ICJ) is – in the course of an advisory proceeding – currently investigating the question of whether Israel’s occupation of Palestinian territories, which has lasted for almost 60 years, is lawful. This could also involve the accusation of apartheid, as raised by 20 states (including South Africa and Namibia) and three international organizations that have submitted statements on the proceedings. Two different legal systems apply to the Israeli settlers and the Palestinians in the West Bank on the same area of land. Palestinians are subject to strict military and occupation rule with severe restrictions, while Jewish settlers enjoy the civil rights of the State of Israel.

In addition to the ICJ, the UN Committee on the Elimination of All Forms of Racial Discrimination is also dealing with the accusation of apartheid against Israel. In May 2021, it ruled in favor of the admissibility of an inter-state complaint by Palestine regarding violations of the Anti-Racial Discrimination Convention (ICERD), including the prohibition of apartheid in Article 3. The Committee, which mediates between the two states and aims to reach a mutual agreement, considered that prima facie evidence of the existence of a "generalized policy and practice of racial discrimination" is given.

The significance of apartheid for the development of human rights

When the aforementioned states are confronted with these accusations, they respond in exactly the same way as South Africa has done for years. They assert that it is a matter of the state's internal affairs and invoke their state sovereignty. This also reveals the real stumbling block that has hindered the development of human rights activities in the United Nations for decades: the clause on domestic jurisdiction to protect state sovereignty, Article 2(7) of the UN Charter.

Back then, in the fight against apartheid in South Africa, it was the countries of the Global South that broke through this provision against the resistance not only of South Africa but also of its European supporters. They confronted the General Assembly for the first time with the importance of mandatory sanctions and measures affecting sport, culture, and science.

William Schabas vividly describes these disputes within the United Nations in his book "The International Legal Order’s Colour Line", published in 2023. He concludes that the history of international human rights often overlooks the importance of the fight against apartheid. The progressive contribution of European and other Western states is often exaggerated. In reality, it had been the Western states that for a long time strongly obstructed human rights in the United Nations due to economic interests and imperialist ideas.

Examining systemic state injustice

In view of the apartheid-like or actual practices that still exist in various regions of the world, all legal instruments and measures that were created in the historical fight against apartheid should be utilized if the apartheid accusation turns out to be justified. These include, for example, trade boycotts, the breaking off of diplomatic relations, an arms embargo and, ultimately, civil society resistance.

It should be examined whether the monitoring body of the Anti-Apartheid Convention, to which the states parties must regularly report on compliance with the convention, should be revitalized in light of recent developments. It should also be analyzed whether mandatory sanctions could strengthen the effective enforcement of human rights obligations.

A court decision, particularly on individual criminal responsibility, would be an important contribution towards reappraising systemic state injustice. This would also reinforce the validity of the Nuremberg Principles, which stand for an end to impunity and lack of accountability for crimes against humanity.

Lisa Wiese is a fully qualified lawyer, research assistant and doctoral candidate at the Chair of European Law, Public International Law and Public Law at Leipzig University.

This text is a translated and slightly revised version of the article published in German on 22 April 2024.