Crime of apartheid
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The crime of apartheid is defined by the 2002 Rome Statute of the International Criminal Court which established the International Criminal Court as inhumane acts of a character similar to other crimes against humanity "committed in the context of an institutionalised 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." It lists such crimes as murder, enslavement, deprivation of physical liberty, forced relocation, sexual violence, and collective persecution.[1]
On 30 November 1973, the United Nations General Assembly opened for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA)[2] It defined the crime of apartheid as "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."
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[edit] History
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The term apartheid, from Afrikaans for "apartness," was the official name of the South African system of racial segregation which existed after 1948. Complaints about the system were brought to the United Nations as early as 12 July 1948 when Dr. Padmanabha Pillai, the representative of India to the United Nations, circulated a letter to the Secretary-General expressing his concerns over treatment of ethnic Indians within the Union of South Africa.[3]
However, this maltreatment of Indians in South Africa was first implemented by the British as far back as 1894, when the Natal Legislative Assembly Bill, depriving Indians of the right to vote, was passed. This was probably close to the legal beginning of 'apartheid', although the term took some time in being recognized. Around that date the following legislation was passed by the British: the Franchise and Ballot Act of 1892, which limited the black vote by finance and education, which was followed by the afore-mentioned Natal Legislative Assembly Bill of 1894. Then, in 1905, the Lagden Commission implemented the General Pass Regulations Bill, which denied blacks the vote, limited them to fixed areas and inaugurated the infamous (and much hated) Pass System. Then followed the Asiatic Registration Act (1906) requiring all Indians to register and carry passes; the South Africa Act (1910) that enfranchised whites, giving them complete political control over all other race groups; the Native Land Act (1913) which prevented all blacks, except those in the Cape, from buying land outside 'reserves' and effectively transferred ownership of 87% of their land to white ownership; the Natives in Urban Areas Bill (1918) designed to force blacks into 'locations'; the Urban Areas Act (1923) which introduced residential segregation in South Africa and provided cheap labour for white industry; the Colour Bar Act (1926), preventing blacks from practising skilled trades; the Native Administration Act (1927) that made the British Crown, rather than paramount chiefs, the supreme head over all African affairs; the Native Land and Trust Act (1936) that complemented the 1913 Native Land Act and, in the same year, the Representation of Natives Act, which removed blacks from the Cape voters' roll. The final 'apartheid' legislation by the British was the Asiatic Land Tenure Bill (1946), which banned any further land sales to Indians. (Details in this para. used with permission from: Apartheid South Africa: An Insider's Overview of the Origin and Effects of Separate Development, by John Allen)
As it became more widely known, South African apartheid was condemned internationally as unjust and racist and many[who?] decided that a formal legal framework was needed in order to apply international pressure on the South African government, although it is noteworthy that such pressure was only applied after 1948: i.e. after the National Party had taken power and adopted the already-existing apartheid framework set in place by the British Government. It is also noteworthy that the British government was among the first to decry the practices it had so recently endorsed and, indeed, created.
In 1971, the Union of Soviet Socialist Republics and Guinea together submitted early drafts of a convention to deal with the suppression and punishment of apartheid.[4] In 1973, the General Assembly of the United Nations agreed on the text of the International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA).[2] The Convention has 31 signatories and 107 parties.
"As such, apartheid was declared to be a crime against humanity, with a scope that went far beyond South Africa. While the crime of apartheid is most often associated with the racist policies of South Africa after 1948, the term more generally refers to racially based policies in any state."[5]
Seventy-six other countries subsequently signed on, but a number of nations have neither signed nor ratified the ICSPCA, including Canada, France, Germany, Israel, Italy, the Netherlands, the United Kingdom and the United States.[6] In explanation of the US vote against the convention, Ambassador Clarence Clyde Ferguson Jr. said: "[W]e cannot...accept that apartheid can in this manner be made a crime against humanity. Crimes against humanity are so grave in nature that they must be meticulously elaborated and strictly construed under existing international law..."[7]
The International Criminal Court provides for individual criminal responsibility for crimes against humanity,[8] including the crime of apartheid.[9]
The International Criminal Court (ICC) came into being on 1 July 2002, and can only prosecute crimes committed on or after that date. The Court can generally only exercise jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. As of July 2008, 106 countries are states parties (with Suriname and Cook Islands set to join in October 2008), and a further 40 countries have signed but not yet ratified the treaty.[10] However, many of the world's most populous nations, including China, India, the United States, Indonesia, and Pakistan are not parties to the Court and therefore are not subject to its jurisdiction, except by Security Council referral.
[edit] ICSPCA definition of the crime of apartheid
Article II of the ICSPCA defines the crime of apartheid as follows:
International Convention on the Suppression and Punishment of the Crime of Apartheid,
Article II[2]
For the purpose of the present Convention, the term 'the crime of apartheid', which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following 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:
- Denial to a member or members of a racial group or groups of the right to life and liberty of person
- By murder of members of a racial group or groups;
- By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;
- By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
- Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
- 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 recognised 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;
- 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;
- Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
- Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
[edit] ICC definition of the crime of apartheid
Article 7 of the Rome Statute of the International Criminal Court defines crimes against humanity as:
- Article 7
- Crimes against humanity
- For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- Murder;
- Extermination;
- Enslavement;
- Deportation or forcible transfer of population;
- Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
- Torture;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
- Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
- Enforced disappearance of persons;
- The crime of apartheid;
- Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[11]
Later in Article 7, the crime of apartheid is defined as:
The 'crime of apartheid' means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised 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.[11]
[edit] See also
[edit] References
- ^ United Nations (2002). "Rome Statute of the International Criminal Court, Part 2, Article 5". Retrieved on 21 July 2007.
- ^ a b c United Nations (30 November 2006). "International Convention on the Suppression and Punishment of the Crime of Apartheid". Retrieved on 8 October 2006.
- ^ Pillai, Padmanabha (12 July 1948). "Letter from the representative of India to the Secretary-General concerning the treatment of Indians in South Africa". Retrieved on 17 July 2006.
- ^ (1973) in Olav Stokke and Carl Widstrand: Southern Africa Vol. 1: United Nations-Organization of African Unity Conference Oslo 9-14 April 1973. Scandinavian Institute of African Studies.
- ^ Morton, Jeffrey S. (2000). The International Law Commission of the United Nations. University of South Carolina Press, 27. ISBN 1570031703.
- ^ [1]
- ^ Statement by Ambassador Clarence Clyde Ferguson Jr. before General Assembly in explanation of vote on Apartheid Convention, November 30, 1973. Review of the U.N. Commission on Human Rights: Hearings before the Subcommittee on International Organizations and Movements of the House Foreign Affairs Committee (1974) p.58
- ^ Encyclopædia Britannica, "Nonstate actors in international law". Retrieved on June 12, 2006.
- ^ Article 7 of the Rome Statute of the International Criminal Court specifically lists the "crime of apartheid" as one of eleven recognized crimes against humanity.
- ^ United Nations. Multilateral treaties deposited with the Secretary-General: Rome Statute of the International Criminal Court. Accessed 16 July 2007.
- ^ a b United Nations (2002). "Rome Statute of the International Criminal Court, Part 2, Article 7". Retrieved on 21 July 2007.
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