The Crime against Humanity of Apartheid in a Post-Apartheid World

2.1 Origins of Apartheid

Apartheid literally signifies ‘apartness’ in Afrikaans and is not easily applied to cases other than that of South Africa: any similar situation seemingly demands a comparison with South Africa during the apartheid regime. This chapter will, in order to create an understanding for the crime of apartheid, briefly look into the origins of apartheid in Southern Africa and the criminalisation of apartheid by the Apartheid Convention, before turning to the colloquial use of the term.

The system of apartheid dates back to the 1930s when the South African Bureau of Race Relations (SABRA) created a plan on the separate development of races, building on the conceived historical legitimacy of apartheid as a logical outcome of the European settlement at the Cape in 1652.⁵ Opposed to assimilation or integration, apartheid was a political and a legal system that maintained the differences of the various racial⁶ groups by aiming at their separate development. The term apartheid has subsequently been associated with the racial segregation policy implemented by the South African National party’s government during the years 1948-1994.⁷ Ultimately, the apartheid policy resulted in over 14,500 civilians being killed and many more affected, by restrictions of virtually every single aspect of life, ranging from free movement and public services, to choice of domicile or spouse.⁸

The term ‘apartheid’ was coined by the South African Prime Minister, Daniel Malan, in 1944, to denote the country’s official policy of racial segregation between whites and various non-white groups; while Hendrik Verwoerd is seen as the architect of apartheid, claiming it to be a policy of good neighbourliness.⁹ With the appointment of Verwoerd as Minister of Native Affairs in 1950, the use of apartheid as a slogan and as a state program drastically increased.¹⁰ The segregation of Africans from the white society was presented as being beneficial, both in order to protect the whites from an ever-present and allegedly increasing black menace (called the swaart gevaar), and also seemingly in the interests of the African societies themselves.¹¹ The South African system was unique with regard to the extent to which racial segregation and discrimination were formalised in the law.¹²

2.2 The Criminalisation of Apartheid

Apartheid was outlawed as an international crime against humanity with the adoption of the 1973 Apartheid Convention. Although, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was the first to list apartheid as a crime against humanity, without prescribing individual criminal liability, however. The choice of the term ‘apartheid’ by the Apartheid Convention was by no means coincidental: it was a direct referral to apartheid South Africa.¹³ The applicability of the Convention is, however, contested: some scholars claim that the Convention was meant to apply exclusively to the South African context, while others emphasise that the wording of the Convention opens for application to other racialised regimes.¹⁴ The Convention, created in the Cold War era, was highly criticised and politicised.¹⁵ To date, it has still not been ratified by any states of the industrialised West. Not only was the treaty said to be the product of a Russian conspiracy against the West, several states also feared indictment for aiding and abetting the South African regime. Its application to any situation unrelated to that regime was therefore considered highly unlikely.¹⁶

2.3 The Use of the Apartheid Terminology

Miscellaneous situations have been described as ‘apartheid’, though often not in the legal sense of the word, usually as a moral description or by analogy to the South African case. Among the countless examples is the Indian caste system or sexual apartheid.¹⁷ The Norwegian press seems to be particularly sympathetic to the use of the apartheid terminology. Recent examples include a newspaper headline on ‘Introduction of an apartheid system’ regarding the alleged unequal treatment of clinical nutrition students and their fellow students in medicine at the University of Oslo;¹⁸ gender apartheid in Saudi-Arabia;¹⁹ apartheid in Norwegian schools with all-white classes,²⁰ the degrading treatment of Roma and beggars in public spaces²¹ and academic apartheid against Iranian students at Norwegian universities.²²

Although these examples are not necessarily legally relevant, they demonstrate how the apartheid discourse extends beyond both its historical and territorial aspects, and its contemporary legal definition. While we have seen that apartheid is recognised as a concept not limited to South Africa in its common use, can we say the same of the legal concept of the international crime of apartheid? The next chapter will analyse the crime against humanity of apartheid, as found in the Rome Statute of the International Criminal Court (ICC).

3.1 The Inclusion of Apartheid into the Rome Statute

Prior to its inclusion in the Rome Statute, apartheid had been defined as a crime against humanity by Article 1(b) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and by Article I Apartheid Convention. However, none of the major precedents to the ICC contained the crime against humanity of apartheid in their statutes.²³ Indeed, apartheid was not included in the draft statute for the ICC either. Interestingly, one of the first drafts of the Rome Statute was based upon the 1981 Study on Ways and Means of Insuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, Including the Establishment of the International Jurisdiction Envisaged by the Convention, thus at a very early stage linking the crime of apartheid with a prospective ICC.²⁴ The 1981 study was drafted as a result of the Apartheid Convention explicitly demanding the creation of an international penal tribunal with jurisdiction over the crimes listed in the Convention (Article V).

In 1992, the International Law Commission (ILC) presented a Draft Code of Crimes Against the Peace and Security of Mankind, into which apartheid was incorporated.²⁵ In this version of the Draft Code of Crimes and on the establishment of an international criminal court, the ILC suggested that the prospective court should have exclusive and compulsory jurisdiction over the crime of genocide, systematic or mass violations of human rights, apartheid, illicit international trafficking in drugs as well as seizure of aircraft and kidnapping of diplomats or internationally protected persons.²⁶ In other words: the crime of apartheid was considered to be on par with the crime of genocide, thus one of very few crimes of such seriousness that the international criminal court should assume exclusive jurisdiction. Indeed, the ILC even explains the court’s exclusive jurisdiction was justified in that, ‘[c]ertain crimes because of their particular gravity, heinous nature, and the considerable detriment they cause to mankind, must come within the purview of an international criminal court’.²⁷ Furthermore, the gravity of the crime of apartheid is emphasised by the Commission’s statement:

[I]t is possible to make a distinction between the most serious crimes, such as genocide and apartheid, which involve mass and systematic violations of universal values, and other crimes, and to limit the exclusive jurisdiction rule to crimes in the first category.²⁸

Although this ILC Draft coincides with the final years of the South African apartheid regime and as such certainly was influenced by the events of the time, it nevertheless demonstrates the uncontested seriousness of the crime of apartheid. Apartheid is repeatedly compared to genocide, which is nowadays considered ‘the crime of crimes’.²⁹ However, this legal classification of the crime of apartheid has fallen into oblivion with the end of the South African regime. The inclusion of apartheid into the 1992 Draft has furthermore been criticised for overlooking the prevalent doubts about the crime’s customary nature.³⁰ The Status of apartheid in customary international law will subsequently be examined in Chapter 4.

The ILC’s Draft Code of Crimes of 1996 contained a generic version of apartheid, prohibiting ‘institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms’, hence without reference to the South African situation.³¹ The ILC stated that institutionalised discrimination was ‘in fact the crime of apartheid under a more general denomination’,³² thereby implying that not only racial, but also ethnic and religious groups were protected.³³ Neither of the Draft Codes were acted upon.

It was only at the Rome Diplomatic Conference³⁴ that the inclusion of the crime of apartheid into the list of crimes against humanity was suggested by the countries of the Southern African Development Community (SADC).³⁵ There was some initial reluctance from other state delegations towards this proposition. Nonetheless, a majority of states urged for the recognition of this inhumane act, arguing that if apartheid was not explicitly listed as a crime against humanity, it would implicitly be subsumed under ‘other inhumane acts’ of Article 7(1)(k) Rome Statute. Put differently, since the crime was already implicitly contained in the Rome Statute, it might as well be singled out and given its own provision. An argument against its inclusion was that any widespread or systematic policy of apartheid would fall under the provision on persecution on racial grounds (Article 7(1)(h) Rome Statute); a separate provision on apartheid was therefore superfluous.³⁶ In the end, however, the delegations agreed that apartheid was of a character and gravity similar to other inhumane acts and merited its own criminal provision.³⁷

In retrospect, it has been argued that the inclusion of the crime of apartheid into the Rome Statute has led to an increased harmonisation of international criminal law. In prior instruments, the crime had already been afforded the status as a crime against humanity, this was confirmed by the Rome Statute, thereby leading to an expansion of the commonly accepted list of crimes against humanity.³⁸ The fact that the crime of apartheid was singled out as a crime against humanity and did not end up in the residual provision of ‘other inhumane acts’ is indeed strong reaffirmation of the universal condemnation of this inhumane practice.³⁹ Critical voices, however, assert that Article 7(2)(h) Rome Statute is incoherent, ambiguous and inoperable.⁴⁰ One scholar, Roger Clark, even claims that the crime of apartheid was an example ‘of the use of the law as affirmation, exclamation or denunciation rather than a string in the prosecutorial bow’.⁴¹ At the same time, though, Clark also rightfully points out that the ‘practice [of apartheid] is now so deeply condemned by the world’s conscience that it is inconceivable that a modern code of crimes (…) would omit a specific reference to apartheid’.⁴² Nevertheless, he considers the addition of the crime into the list of crimes against humanity ‘more symbolic than anything else and that the proscribed actions are already caught elsewhere’.⁴³

In this context, historic parallels to the crime of genocide should be drawn. As late as 1982, legal scholars claimed that the Genocide Convention was ‘more symbolic than a legislative contract’⁴⁴ and that ‘[g]enocide has been charged with controversy from its very inception and it has never enforced specific punishment for cases of genocide’.⁴⁵ Indeed, this is wording that resembles the academic discourse on the crime of apartheid. Nowadays, nobody would even dare to discuss the continued importance of the crime of genocide or the Genocide Convention, particularly after the occurrences in Rwanda and the Former Yugoslavia. Similarly, the crime of apartheid can gain independent significance if applied to contemporary situations, as will be discussed later in the case of North Korea and the Occupied Palestinian Territories.

3.2 The Actus Reus of the Crime against Humanity of Apartheid

Article 7(1)(j) in conjunction with Article 7(2)(h) Rome Statute defines the crime against humanity of apartheid as follows:

Article 21 Rome Statute contains a detailed provision on the applicable law for the ICC. It places in consecutive order, first, the Rome Statute, the Elements of Crimes and the Rules of Procedure and Evidence (Article 21(1)(a)). Secondly, where appropriate, applicable treaties and the principles and rules of international law (Article 21(1)(b)). Thirdly, it lists the general principles of law, should both the first and second order fail. The general principles have to be consistent with the Rome Statute and international law as well as internationally recognised norms and standards (Article 21(1)(c)). The ICC may — but does not have to — apply principles and rules of law as interpreted in its previous decisions (Article 21(2)). For this analysis, the interpretation of the provisions contained in the Rome Statute are of primary importance. Although the Elements of Crimes are not strictly binding, they help clarify the different elements of each crime and as such are a tool to assist the Court in their interpretation.⁴⁷

The following analysis of the elements of the actus reus of the crime against humanity of apartheid builds on a legal interpretation of Article 7(1)(j) and Article 7(2)(h) Rome Statute. The general, overarching requirements of crimes against humanity in the chapeau of Article 7 Rome Statute will hereafter not be analysed; instead, the focus will be on the specific requirements of the crime of apartheid.⁴⁸ Since the Rome Statute is a treaty by nature, the interpretative criteria in Articles 31 and 32 of the Vienna Convention on the Law of Treaties will be applied, in particular the literal, the contextual/systematic and the teleological criteria.⁴⁹ Article 31(1) Vienna Convention notes that terms are to be given their ordinary meaning in the context and in light of the respective treaty’s object and purpose. While the ordinary meaning of treaty terms is always linked with its context, it may be treated separately for analytical purposes.⁵⁰

The following subchapters examine the different elements of the actus reus of the crime of apartheid. In so doing, the challenges — or pitfalls — of the criminal provision on apartheid will be revealed. Each respective subchapter deals with one of these elements, these being: inhumane acts, a character similar to those referred to in paragraph 1, an institutionalised regime, systematic oppression and domination and, lastly, the racial group.

3.3 The Mens Rea of the Crime against Humanity of Apartheid

In addition to the specific intention of maintaining an institutionalised regime of systematic oppression and domination, Article 30 Rome Statute requires that the perpetrator commits the material elements with intent and knowledge. Thus, the mens rea of the crime of apartheid demands awareness by the perpetrator of the factual circumstances, such as the nature and gravity of his or her acts, and an intention of maintaining the institutionalised regime of systematic oppression and domination over a racial group. Of importance is that the systematic oppression and domination not only have the effect, but moreover the purpose of maintaining a regime by one racial group over another racial group. The crime of apartheid therefore demands a special intent to sustain an institutionalised system of racial discrimination, in addition to the general intent of committing the crime.⁹⁸

The wording of the mens rea is problematic because it seemingly excludes acts that establish a racial domination; according to the provision’s wording, the criminal act is limited to maintaining such regimes.⁹⁹ However, it could be argued that any regime, once established, also has to be maintained. Furthermore, the wording suggests that replacing one regime with another is not included.¹⁰⁰ A possible solution to this apparent lacuna could be found in a wide definition of the maintenance term so as to include the establishment and the replacement of an apartheid regime, thereby approaching Article II Apartheid Convention that demands intent ‘for the purpose of establishing and maintaining domination’.

3.4 Spatial Applicability of the Provisions on Apartheid

While there are controversies as to whether the Apartheid Convention was intended for, and could be applied to, contexts other than South Africa, this discussion is no longer valid for the Rome Statute. Since Article 7(1)(j) in conjunction with Article 7(2)(h) Rome Statute removed any reference to Southern Africa, the Southern African situation can no longer be used as a conditio sine qua non to determine the existence of the crime of apartheid in other cases. The crime of apartheid has been released from its former geographical shackles. The provisions on apartheid in the Rome Statute can therefore be applied to any situation occurring in the territory of any state party. They can furthermore be applied to any other state providing the ICC’s jurisdiction is accepted and/or the UN Security Council authorises the initiation of an investigation.

Nonetheless, the contentiousness of the spatial (and temporal) applicability of the Rome Statute’s provisions on apartheid has not yet fully dissipated. The shadow of the South African legacy still lingers over the crime of apartheid. Yet, with the inclusion of the crime of apartheid into the Rome Statute and the removal of any reference to the Southern African case, the time has now come to put Article 7(1)(j) Rome Statute to the test. As a matter of fact, there are a significant number of states with institutionalised regimes of systematic oppression and domination. If these cases reach the threshold of a crime against humanity and fulfil the elements of the crime of apartheid, a substantial number of cases could be added to the ICC’s case-load.¹⁰¹ Two cases will be briefly analysed in chapter 5, demonstrating that the provisions on apartheid could be applied by the ICC in the near future.

4.1 The Prohibition of Racial Discrimination

There are three possible sources under international law, namely treaty, custom and general principles of law.¹⁰² Customary law demands evidence of a subjective recognition by states of what they consider to be a binding rule of international law (opinio juris) as well as an objective constant and uniform state practice.¹⁰³ International crimes are mostly created through conventions, but also through custom. The contentiousness of the Apartheid Convention and the not yet universal ratification of the Rome Statute as treaty sources containing the crime against humanity of apartheid, reveal the importance of the customary status of this crime. The Rome Statute attempted to codify pre-existing customary or conventional law, particularly crimes that were already prohibited in codified international law, such as the crime of apartheid.¹⁰⁴ The crimes listed in the Rome Statute thus coincide to a large extent with customary law.¹⁰⁵ Whether or not the crime against humanity of apartheid has reached customary law status remains an issue of dispute.¹⁰⁶ This chapter will attempt to demonstrate why the crime of apartheid is not only a treaty crime, but most probably also a customary crime.

The International Court of Justice (ICJ) in the South West Africa case made clear that ‘the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law’.¹⁰⁷ Not only norms proscribing racial discrimination, but also governmental practices of systematic racial discrimination are considered prohibited under customary human rights law.¹⁰⁸ Apartheid is a case of qualified racial discrimination that runs contrary to the most fundamental guiding principles of international law, notably human rights law: the UN Charter of 1945 provides in Article 1(3) that its members had to promote and encourage ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (emphasis added). Similarly, the Universal Declaration of Human Rights (UDHR) of 1948 confirms that ‘everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2, emphasis added). The customary law status of the prohibition of racial discrimination and apartheid as a case of qualified racial discrimination seems uncontested. Indeed, scholars confirm that ‘the customary status of the prohibition of (…) systematic apartheid-style racial discrimination is (…) beyond doubt’.¹⁰⁹ While the customary nature of racial non-discrimination is recognised, the question remains whether the crime against humanity of apartheid is a customary norm too.

4.2 Opinio juris

Evidence of opinio juris will often be drawn from debates in the General Assembly or from negotiation of international treaties, where the opinion of states on their legal obligations becomes apparent.¹¹⁰ The ICJ in the Advisory Opinion on Nuclear Weapons recognised that also General Assembly resolutions, even if they were not legally binding, could in certain circumstances provide evidence of an opinio juris.¹¹¹ This statement is of particular importance for the examination of the customary nature of the crime of apartheid.

No court has ever prosecuted the crime of apartheid (national or international); no person has ever been tried for the crime of apartheid.¹¹² Nevertheless, apartheid has been dealt with by virtually every organ of the UN since the very beginning of the organisation’s existence in 1946. It was apartheid that unified the international community in its struggle to bring to an end the South African regime in the midst of the Cold War era. Numerous UN resolutions condemned apartheid, an indication of its seriousness. Indeed, in the period from 1946 to 1993, at least 14 General Assembly resolutions confirmed apartheid to be a crime against humanity. This is in addition to a multitude of other resolutions dealing with the consequences of the South African apartheid regime. Furthermore, on one occasion the Security Council affirmed that apartheid was a crime against humanity, as well as once stating that apartheid was a ‘crime against the conscience and dignity of mankind’.¹¹³ Although purely related to the Southern African context, these UN resolutions shaped the understanding of the crime of apartheid and continue to be relevant with regards to its legal definition. From a historical perspective, these resolutions are of great importance because they illustrate the international community’s commitment to eradicate and to criminalise apartheid. From a legal point of view, the resolutions show how apartheid grew to be recognised as a crime against humanity and demonstrate an opinio juris of the UN member states. If this opinio juris can be attributed with the corresponding state practice, the crime of apartheid could have actually gained customary law status.

The International Law Commission (ILC) seems to strengthen this argument further. In its 2013 Report on the Formation and Evidence of Customary Law, it noted that the prohibition against racial discrimination and apartheid were peremptory norms, which were formed as a result of a process of widespread acceptance and recognition by the international community as a whole.¹¹⁴ The condemnation of apartheid as a crime against humanity and as such an affront to human dignity by ‘the majority of Member states’ was already noted as early as 1972.¹¹⁵ There are therefore strong indications that an opinio juris as to the prohibition of apartheid as a crime against humanity exists, and has existed, for more than four decades.

4.3 State Practice

An increasing number of national legislations now contain the crime of apartheid, which demonstrates the general high acceptance of the crime and state practice as such.¹¹⁶ On the international level, there are a multitude of treaties with provisions on apartheid. As a matter of fact, all the international treaties that contain provisions on apartheid have reached a high number of ratifications, thereby indicating state practice: 176 states are members of the International Convention on the Elimination of Racial Discrimination (ICERD). According to the Preamble of the ICERD, its state parties were:

alarmed […] by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation’ (emphasis added).¹¹⁷

Article 3 further stipulates the member states’ obligation to oppose apartheid:

States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

It is to be noted that the discriminatory practice of apartheid was the only specific form of discrimination to be singled out and proscribed in its own treaty provision in the ICERD. Additional Protocol I to the Geneva Conventions with an article on the war crime of apartheid also achieved a high number of ratifications, with 173 state parties. The Rome Statute has to date been ratified by 122 states. The Rome negotiations for the ICC reaffirmed that apartheid is a crime against humanity — certain scholars perceive this as confirmation that the crime has achieved a customary law status.¹¹⁸ Last but not least, the Apartheid Convention with 109 ratifications confirms a generally high acknowledgement of apartheid as an international crime.¹¹⁹ Undoubtedly, the majority of ratifications occurred during the 1970s and 1980s. However, a not insignificant number of these took place in the early 1990s, thus in the final years of the South African apartheid regime.¹²⁰ Even more remarkable is that a total of 10 states either ratified or acceded the Apartheid Convention after the fall of the regime in 1994, the latest being in 2014 (State of Palestine).¹²¹ These recent ratifications demonstrate that the Apartheid Convention is perceived as a valid, functioning treaty and possibly not a dead letter after all.

There are furthermore no indications of hostility to the apartheid provisions by states that are not parties to the above-listed treaties. A clear signal is also the acceptance of subsequent instruments prohibiting apartheid by previous non-state parties to the Apartheid Convention (such as South Africa or the United Kingdom). The prohibition of racial discrimination itself is a clear rule of customary law. The prohibition of apartheid as a qualified example of racial discrimination, constituting an international crime, is recognised by an increasing number of states and can therefore be asserted to have reached the level of customary law.¹²²

4.4 Erga omnes, jus cogens and Universal Jurisdiction

In its famous Barcelona Traction case, the ICJ declared that not only was racial discrimination prohibited by international customary law, it was also a norm erga omnes:

Such obligations (obligations erga omnes) derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.¹²³

The judgment defines obligations erga omnes as follows:

In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.¹²⁴

The wording very much resembles that which the ILC later adopted in its Draft Code of Crimes, in which it is emphasised that apartheid was of particular gravity due to its heinous nature. Moreover, it involved mass and systematic violations of universal values.¹²⁵ Owing to the gravity of the crime and the damage caused to humanity as a whole, there is an obligation owed to the international community not to discriminate on a racial basis.

Not only has apartheid reached the status of customary law and is a crime with an erga omnes effect, it is also an international crime with jus cogens status.¹²⁶ Jus cogens permits states to assert universal jurisdiction over core international crimes. Crimes against humanity, amongst these, apartheid, have been recognised in international law for several decades and could be a prime example for universal jurisdiction.¹²⁷ As a matter of fact, the South African apartheid regime prominently figured as a potential case of universal jurisdiction prior to the ratification of the Rome Statute: the government committed crimes against its own citizens, but had not ratified the Apartheid Convention and was therefore not directly bound by its provisions. The Convention aimed at halting the practice of a non-state party, which could only have been achieved by exercising universal jurisdiction.¹²⁸ Unfortunately, due to the lack of case law, it is currently rather unlikely that any state will assert universal jurisdiction for the crime of apartheid.

5.1 North Korea

While none of the current situations under investigation before the ICC deal with the crime of apartheid, there are indications that other situations might indeed fulfil the requirements of the crime.¹²⁹ In particular, the situation in Palestine, presently under preliminary examination by the ICC, may call for the application of the provisions on apartheid. The other recent situation, to which the apartheid terminology was applied in at least a partially legal sense, is North Korea. This sub-chapter and the subsequent one discuss both cases, without however going into depth regarding the underlying facts. The first case dealt with here is that of North Korea.

The Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK) was established by the UN Commission on Human Rights as early as 2004 (based upon UN Human Rights Council Resolution 2004/13). The rapporteur’s mandate has since been renewed on an annual basis by the Human Rights Council. While the office of the Special Rapporteur has existed for more than a decade, it is only in recent years that its activity has become publicly more known. Subsequently, some of this recent development will be shown.

In April 2013, the Council established a Commission of Inquiry to investigate systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea (DPRK). The Commission was instructed to investigate, amongst other things, violations of the right to food, torture and inhuman treatment, discrimination, violations of freedom of expression and violations of the right to life. The Commission’s mandate was based on the Human Rights Council Resolution 22/13.¹³⁰ In a public statement to the 25^th session of the Human Rights Council in March 2014, the Chairman of the Commission of Inquiry, Michael Kirby, asserted that the government of North Korea had put into place a system of apartheid.¹³¹ The statement was released in connection with the publication of the corresponding report of the detailed findings of the Commission of Inquiry.¹³² The statement and the report contain multiple references to crimes against humanity that were — and allegedly still are — being committed by government officials of the DPRK against its own citizens.¹³³ While the Commission’s report was not intended to be a legally binding document and makes no claims as such, it nevertheless had the objective of ‘ensuring full accountability, in particular where these violations may amount to crimes against humanity’.¹³⁴ As such, the report integrates well with a number of recent reports by other Commissions of Inquiry. Indeed, it seemingly reveals a trend of non-legal commissions drawing legal conclusions without having performed a complete legal analysis of the crimes in question or having a corresponding mandate.¹³⁵

In his statement, Kirby makes direct reference to the apartheid regime in South Africa and the cruelties committed by Khmer Rouge in Cambodia.¹³⁶ In so doing, he compares the North Korean situation with other situations of serious human rights breaches, where international crimes were committed. Implicitly, he thereby performs a legal classification of the situation in North Korea. The statement notes that the social system in the DPRK, the songbun, was a discriminatory apartheid of a social class that should immediately and completely be abolished.¹³⁷ Most interestingly, however, with the exception of an appearance in one footnote, the comprehensive report never once mentions the term ‘apartheid’.¹³⁸ On behalf of the Commission, Kirby urged:

… the members of the United Nations and the international community, to accept their responsibility to protect and to implement all the recommendations contained in our report addressed to them: especially those related to accountability, including the referral of the situation of the Democratic People’s Republic of Korea to the International Criminal Court.¹³⁹

The Commission thereby calls upon the members of the UN to refer the situation to the Prosecutor of the ICC.¹⁴⁰ The statement ends with yet another comparison of the North Korean system with South Africa, as well as Nazism:

Contending with the scourges of Nazism, apartheid, the Khmer Rouge and other affronts required courage by great nations and ordinary human beings alike. It is now your duty to address the scourge of human rights violations and crimes against humanity in the Democratic People’s Republic of Korea.¹⁴¹

The media were quick to pick up on one particular sentence issued by Kirby, that of the North Korean songbun being an apartheid system.¹⁴² Paradoxically, and as has also been noted above, apartheid does not figure in the report’s analysis, except for once in a footnote. Yet, it was this specific comparison of the North Korean totalitarian system with Nazism, the Khmer Rouge regime and, not least, the South African apartheid regime that made headlines.

Clearly, there appears to be a discrepancy between the (legal) conclusions of the comprehensive report and the Chairman’s statements. Two possible reasons for this present themselves: either Michael Kirby carried out a personal legal analysis of the situation in the DPRK and concluded that the crime against humanity of apartheid was, in his eyes, fulfilled (a rather unlikely scenario), or, more likely, Kirby used the not unknown rhetoric of labelling a discriminatory situation as ‘apartheid’, without having performed the corresponding legal analysis. It has to be recalled that the crime of apartheid requires the oppression and domination by one racial group over any other racial group. In order to fulfil the actus reus of the crime, two (or more) different racial groups would have to be involved. It is, however, highly unlikely that the different social groups in North Korea would be considered ‘races’. This interpretation of the term race would most likely stretch its legal meaning considerably and it is doubtful whether any international criminal court would accept such a legal classification.

Very recent developments reveal the likelihood of a referral of the North Korean situation to the ICC: at the end of October 2015, apparently a joint EU-Japanese draft General Assembly resolution encouraged the UN Security Council to refer the situation to the ICC.¹⁴³ According to the media, momentum was gathering as the referral became a real possibility and, in this context, the former UN Commissioner of Human Rights, Navi Pillay also emphasised that the North Korean caste system, the songbun, constituted a new example of apartheid.¹⁴⁴ In their oral statements, both former and current UN officials have been quick to draw the comparison between the songbun system in the DPRK and apartheid. Conversely, they are more cautious in their written reports, where apartheid terminology is consistently avoided.¹⁴⁵ In the case of an increasingly more likely referral of the North Korean situation to the ICC, a legal analysis of the songbun system as a crime against humanity of apartheid should be anticipated. However, the racial group is an essential element of the actus reus of the crime of apartheid and the social classes of the DPRK can hardly be classified as racial groups. Unless the racial group is very broadly interpreted to include any group perceived as being different from the perpetrator’s group, an application of Article 7(1)(j) Rome Statute on the situation seems rather unlikely.

In summary, once again it has been shown that the symbolic power of the apartheid terminology cannot be underestimated. Simultaneously, this power also casts a shadow over the legal definition of the term.

5.2 The Occupied Palestinian Territories

Parallels between the South African apartheid regime and the situation in Palestine were drawn already at an early stage, as illustrated by the UN General Assembly Resolution 3382 (XXX) of 10 November 1975, which strongly condemned:

all governments which do not recognise the right to self-determination and independence of peoples under colonial and foreign domination and alien subjugation, notably the people of Africa and the Palestinian people.¹⁴⁶

The conflict in the Occupied Palestinian Territories (OPT) also prominently figures in the colloquial apartheid discourse. Numerous books make the connection between apartheid and Palestine already in their title: ‘Seeking Mandela: Peacemaking between Israelis and Palestinians’¹⁴⁷ and ‘Palestine/Israel: Peace or Apartheid’¹⁴⁸ are just two examples of a wide array of scholarly publications. The apartheid terminology is employed as a metaphor for the on-going struggle between two groups of people and is as such not applied in any legal sense. Although, other sources have specifically analysed the situation in the OPT from a legal perspective. One of these being the Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, which will be discussed subsequently.¹⁴⁹

Richard Falk, the Special Rapporteur, presented his final report to the UN Human Rights Council in January 2014, submitted in accordance with the Commission on Human Rights resolution 1993/2A and Human Rights Council decision 2/102.¹⁵⁰ In his report, Falk addressed Israeli settlements in the West Bank and the wall, in the context of the tenth anniversary of the Advisory Opinion by the International Court of Justice (ICJ),¹⁵¹ and considered the policies and practices of Israel in the Occupied Palestinian Territories (OPT) in light of the prohibition on segregation and apartheid. Thus, unlike the Commission of Inquiry to North Korea, Special Rapporteur Falk made it clear that he was looking into apartheid-like situations and would therefore perform a legal classification of the discriminatory systems put into place in the OPT.¹⁵² His report dedicates an entire chapter (chapter V) to the question of apartheid and segregation. Falk points out that he, as did his predecessors, had called for an advisory opinion by the ICJ on ‘whether elements of the [Israeli] occupation constitute forms of colonialism and apartheid’.¹⁵³ However:

since no advisory opinion has been sought (…), in the present report the Special Rapporteur assumes part of the task of analysing whether allegations of apartheid in occupied Palestine are well founded. He discusses Israeli policies and practices through the lens of the international prohibition of ethnic discrimination, segregation and apartheid.¹⁵⁴

By referring specifically to the international prohibition of apartheid, the legal approach to the discriminatory practices in the OPT is further emphasised. The term ‘prohibition’ implies an analysis of the criminal law provisions. Indeed, the Special Rapporteur meticulously enumerates the relevant legal framework for his analysis, amongst others Article 85(4)(c) of Protocol I under the Geneva Conventions, the peremptory status of the prohibition of apartheid as declared by the International Law Commission,¹⁵⁵ Article 3 ICERD (thoroughly elaborating that, while this provision possibly only applied to South Africa, the overall prohibition of racial discrimination was found to be of universal character) as well as the Apartheid Convention.¹⁵⁶ Falk rightfully pinpoints the issue of the domination of one racial group over another racial group as one of the main elements — and challenges — to the application of the apartheid provisions. As such, he notes that racial discrimination had to be broadly defined as to include any distinction based on race, colour, descent, national or ethnic origin, as prescribed by Article 1 ICERD.¹⁵⁷ The report ends by concluding that it finds ‘practices and policies which appear to constitute apartheid and segregation’¹⁵⁸ and refers to the possibility of a criminal investigation before the ICC.¹⁵⁹ The media response was dominated by headlines on the Israeli apartheid.¹⁶⁰ The accession of the State of Palestine to the Apartheid Convention only three months after Falk’s presentation of his final report is hardly coincidental.¹⁶¹

One year after the submission of Falk’s report, the Government of Palestine lodged a declaration under Article 12(3) Rome Statute accepting the ICC’s jurisdiction and subsequently acceding to the Rome Statute.¹⁶² It is to be noted that the declaration only concerns alleged crimes committed since 13 June 2014. It therefore has a different temporal dimension than the report by Falk. The Office of the Prosecutor of the ICC had to, as a matter of policy and practice, open a preliminary examination into the situation in Palestine in order to establish whether the criteria for opening an investigation according to Article 53(1) Rome Statute were met.¹⁶³ If an investigation were to be opened it would be of particular interest to see whether the Office of the Prosecutor examines the committing of the crime of apartheid. In this context, it would prove to be of major importance whether or not the Palestinians and the Israeli are considered two distinct racial groups. If the ICC chooses to follow suit regarding the current development of the sociological and legal definition of race as being the perception of a group or a person’s differentness, then the two groups in the OPT could indeed be characterised as two racial groups. With reference to the rather clear conclusion of Falk’s report, which has a legal dimension, it would be surprising if the ICC Prosecutor were to disregard the application of the provision on the crime of apartheid. Further developments in this case are to be awaited.