Convention on Apartheid

The International Convention on the Suppression and Punishment of Apartheid was adopted by the United Nations (UN) General Assembly in November 1973. The treaty was an attempt to criminalize racial separation and segregation policies such as those that had been imposed by South Africa's white minority government. Under the Convention, which now has more than one hundred states parties, the crime of apartheid refers to a series of inhuman acts—including murder, torture, arbitrary arrest, illegal imprisonment, exploitation, marginalization, and persecution—committed for the purpose of establishing and maintaining the domination of one racial group by another. The Convention is particularly notable for its departure from the traditional rule of state sovereignty in that it authorizes the national courts of states parties to attribute individual criminal responsibility for the crime to both government leaders and their supporters in certain instances.

Although the UN Security Council and General Assembly had already condemned the apartheid policies of South Africa's national party government previously, the General Assembly's adoption of the Apartheid Convention provided the first formal legal framework within which UN member states could impose individual and collective sanctions aimed at pressing the South African government to change its racist policies. Importantly, the drafters of the Convention chose to formulate it in general terms, so that, in addition to the Convention's direct bearing on the "apartheid government," it would deter and prohibit any other states from adopting similar policies. In doing so, they gave added impetus to the continued development of a general prohibition against crimes against humanity.

Notwithstanding the Convention's stated or ostensible general and specific purposes, the fact that its criminal provisions are so broadly defined as to be practically unworkable raises doubts as to whether the states that adopted it ever really intended to make good on their forewarnings of individual prosecutions. In fact, since its adoption in 1973, no one has been charged under the Convention and, given the negotiated nature of South Africa's democratic transition, it has become very unlikely that anyone from the former regime will ever be prosecuted for the crime of apartheid. Arguably, therefore, the Convention's real significance lies not in individual criminal accountability (which it failed to bring about), but rather in its authoritative condemnation of the policy of apartheid as a crime against humanity—a conclusion also recognized by the majority of the members of South Africa's Truth and Reconciliation Commission.

The future of the Apartheid Convention itself as a legal instrument within the emerging international criminal justice framework is uncertain. Since 1993 only Yugoslavia (which, effectively, did not have a choice in the matter) has bothered to ratify the Convention. Even South Africa's new democratic government has not ratified the Convention. Nevertheless, future perpetrators of apartheid-like policies are on notice as to their potential international criminal liability, thanks less to the Convention itself than to the inclusion of a more precise definition of the crime of apartheid within the Rome Statute of the International Criminal Court (ICC). Within the latter's criminal jurisdiction, the crime of apartheid is a crime against humanity when it is knowingly committed as part of a widespread or systematic attack directed against any civilian population. More specifically, the crime of apartheid refers to inhumane acts (i.e., murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution, and the enforced disappearance of persons) committed in the context of an institutionalized regime of systematic oppression and domination of one racial group by another.

SEE ALSO Apartheid; International Law; Namibia (German South West Africa and South West Africa); South Africa

BIBLIOGRAPHY

Butcher, Goler Teal (1986). "Legal Consequences for States of the Illegality of Apartheid." Human Rights Quarterly 8:404–442.

United Nations Department of Public Information (1994). The United Nations and Apartheid, 1948–1994. New York: Author.

United Nations Special Committee Against Apartheid (1988). Twenty-Five Years of Commitment to the Elimination of "Apartheid" in South Africa. New York: Author.

Weissbrodt, David, and Georgina Mahoney (1986). "International Legal Action Against Apartheid." Law & Inequality Journal 4:485–508.

Garth Meintjes