I. INTRODUCTION
In April 2018, the State of Palestine submitted to the Committee on the Elimination of Racial Discrimination an interstate communication against Israel under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).Footnote 1 Amongst other claims, the communication asserted that ‘a system of apartheid has developed’ in the Occupied Palestinian Territories (OPT),Footnote 2 which would entail a violation of Article 3 of ICERD. More recently, reports by Palestinian,Footnote 3 Israeli,Footnote 4 and international non-governmental organizations have invoked the same term in relation to Israel's practices in the OPT,Footnote 5 and Human Rights Watch's report on Myanmar's mass detentions of Rohingya explicitly condemns a ‘regime of apartheid’ in Rakhine State.Footnote 6 In addition, Azerbaijan's application instituting proceedings against Armenia at the International Court of Justice, filed on 23 September 2021, alleges a violation of Article 3 of ICERD—the duty on State parties to ‘prevent, prohibit and eradicate all practices’ of racial segregation and apartheid in territories under their jurisdiction.Footnote 7 Three decades on from the formal end of apartheid in South Africa, the international wrong those practices generated is again at the forefront of legal and political argument.
Despite this increased attention, there remain a number of uncertainties as to the elements of the prohibition—including the basic question of its definition in international law. In part, this is a consequence of the fact that certain instruments referring to apartheid leave the term undefined or, where definitions are provided, those definitions differ inter se. Thus, as noted above, under Article 3 of ICERD State parties ‘undertake to prevent, prohibit and eradicate all practices [of apartheid] in territories under their jurisdiction’.Footnote 8 The term, however, is not defined. Likewise, Article 85(4)(c) of Additional Protocol I (API) of 1977 to the Geneva Conventions includes ‘practices of “apartheid”’ as a grave breach of the protocol but does not provide a definition.Footnote 9 By contrast, the Apartheid Convention of 1973, which imposes on State parties obligations of prevention and prosecution, does include a detailed definition in Article 2.Footnote 10 This definition, however, differs from that in the Rome Statute of the International Criminal Court, under which apartheid is an act constituting a crime against humanity.Footnote 11 In addition to these complications arising under treaty law, there remains the question of the scope of the prohibition of apartheid binding States in customary international law.
In this light, after some preliminary points in Section II, the first aim of this article is to delineate the definition of apartheid in international law. This is done in Section III. The focus is on two obligations binding States: the obligation of all States in custom and the obligation of State parties under Article 3 of ICERD.Footnote 12 The central claim in Section III is that for both of these rules, the Apartheid Convention of 1973 provides the definition of the wrong. As will be seen, this entails, in essence, the commission of human rights violations with the purpose of establishing and maintaining racial domination and systematic oppression. In addition, it is argued that the negotiation and adoption of the Rome Statute, a criminal law instrument with a different definition of apartheid, did not affect the scope of States’ pre-existing obligations under custom or Article 3 of ICERD.
Thereafter, in Section IV, three key elements of the definition set out in Section III are addressed, each of which will be central to determining an allegation of apartheid. First, the wrongful acts of apartheid are briefly explored—and in particular, the broad reference, in Article 2(c) of the Apartheid Convention, to ‘[a]ny 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’.Footnote 13 Second, there is the question of what exactly is entailed in the idea of a purpose of establishing and maintaining racial domination. As with genocide, this distinctive mental element is likely to be a primary issue in any dispute about apartheid. In this respect, what might ground an inference of such a purpose is also discussed. And third, the question of what is meant by the term ‘racial group’ in the definition of apartheid is addressed. After all, it is a particular kind of racial discrimination, distinctively, that is the subject of regulation.
Finally, Section V addresses certain wider implications of the growing attention to the wrong of apartheid. First, it suggests that even though practices that constitute the wrong of apartheid will in any event be wrongful under other rules of international law, its proper delineation and application matter for three reasons. These concern law's expressive function, the potential political effects of the term, and, legally, the consequences that flow from the prohibition on apartheid's status as a peremptory norm. Second, in addition to bringing the question of racial discrimination to the fore, appreciation of the wrong of apartheid is also important in understanding what kinds of violence and harm international law marks out as having particular significance. More specifically, here is a set of practices both criminalized, for individuals, and subject to the aggravated responsibility regime, for States, that does not necessarily involve violations of life or bodily integrity. Rather, the wrong captures systemic and structural forms of discrimination that destroy equality and freedom.
II. THE STATE PROHIBITION ON APARTHEID—EXISTENCE AND SCOPE
Two preliminary issues arise. These concern the existence of the prohibition in ICERD and customary international law and the issue of territorial scope. These are taken in turn.
A. Apartheid in ICERD and Custom
The international legal regulation of apartheid emerged in the 1950s and 1960s with growing recognition by States of the abhorrence of South Africa's practices of institutionalized racial discrimination.Footnote 14 In relation to treaty law, as Thornberry notes, this recognition was important in creating political impetus for the drafting of ICERD in the mid-1960s.Footnote 15 As noted above, in addition to an explicit reference to apartheid in the Preamble, Article 3 of ICERD provides:
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.
As treaty law, Article 3 of ICERD obviously binds only State parties—a number that stands today at 182.Footnote 16
Contemporaneously to the drafting of ICERD, and channelled through the United Nations, States increasingly articulated their opposition to apartheid. Thus emblematically,Footnote 17 UN General Assembly Resolution 2396 of 1968, adopted by 85 votes to 2 with 14 abstentions, repeated its ‘condemnation of the policies of apartheid practiced by the Government of South Africa as a crime against humanity’.Footnote 18 In the Security Council, Resolution 282 of 1970 reiterated the Council's ‘condemnation of the evil and abhorrent policies of apartheid and the measures being taken by the Government of South Africa to enforce and extend those policies beyond its borders.’Footnote 19 As time passed, States’ views on the question approached unanimity—UNSC Resolution 473 of 1980, for instance, unanimously reaffirmed the criminality of apartheid and called for its end.Footnote 20
As in other cases, it is not easy to pinpoint exactly when the customary prohibition crystallized.Footnote 21 This question of pinpointing the moment of crystallization, however, is more of historical interest than contemporary relevance,Footnote 22 for it is beyond serious doubt that by the late 1970s the customary rule had formed—there is no doubt that there arose a general acceptance among States that apartheid is a prohibited political system. This series of resolutions in the General Assembly and Security Council was of a declarative and normative character in relation to the wrongfulness of apartheid,Footnote 23 and garnered increased support as time passed.Footnote 24 Moreover, it is impossible to find a single State which today defends, as a matter of law, the permissibility of institutionalized practices of racial discrimination of this kind. As the ILC's Special Rapporteur on Peremptory Norms of General International Law put it, the response of the international community amounted to the ‘complete and total rejection of the policy of apartheid and the discriminatory practices attendant to it’.Footnote 25
B. The Territorial Scope of the Wrong
States have accepted that the wrong of apartheid may be committed within or outside of a State's own borders. As to the customary rule, this emerges from the international community's condemnation of South Africa's practices in South West Africa, both beforeFootnote 26 and afterFootnote 27 the termination of the League of Nations mandate.Footnote 28 UN Security Council Resolution 282, for instance, reiterates ‘its condemnation of the evil and abhorrent policies of apartheid and the measures being taken by the Government of South Africa to enforce and extend those policies beyond its borders’. In short, there is no reason to think the customary rule is limited to the State's own territory.Footnote 29
As to ICERD, in contrast to the general absence of a territorial limitation in the treaty,Footnote 30 Article 3 requires State parties (only) to ‘prevent, prohibit and eradicate [apartheid] in territories under their jurisdiction’. Interpreting this clause, Thornberry notes that the ‘practice under Article 3 merges into the broader CERD archive of applying the Convention extraterritorially’—that is, it extends, in particular, to ‘cases of occupation or control of territory’ abroad.Footnote 31 Although Article 3 entails a model of extraterritorial application that remains bound to territorial control, as opposed to more expansive models of personal controlFootnote 32 or cause-and-effectFootnote 33, this is not likely to matter in practice. Paradigmatically, a situation in which a State is able to impose an institutionalized regime of racial discrimination will be one in which it controls the relevant territory.Footnote 34
III. THE DEFINITION OF APARTHEID IN INTERNATIONAL LAW
A. Introduction
Leaving those preliminary questions, this section turns to the question of definition. As noted above, the term ‘apartheid’ is not defined in ICERD, nor in any of the contemporaneous United Nations resolutions employing the term.Footnote 35 The application of the rule on interpretation in Article 31(1) of the VCLT to Article 3 of ICERD is also of little use beyond confirming, through the term itself, a connection to South Africa and that it is distinctive, in some way, from racial discrimination generally.Footnote 36 Likewise, in relation to the customary rule the practice itself does not provide a precise definition. Of course, the target of the international community's condemnation was the racially discriminatory policies of the South African State that intensified after the National Party's election in 1948.Footnote 37 In the words of the United Nations Special Committee on the Policies of Apartheid, this ‘mass of discriminatory and repressive legislation’Footnote 38 instantiated a regime of racial oppression in the country.Footnote 39 The question, though, is whether it is possible to provide a more detailed definition. To answer this question, it is necessary to consider whether the definitions set out in international treaties concluded after ICERD that do define apartheid—principally, the Apartheid Convention and the Rome Statute—are relevant to delineating the State prohibition in custom and ICERD.
B. The Relevance of the Apartheid Convention
The Apartheid Convention, negotiated and drafted in the Third Committee of the United Nations between 1971 and 1973, was an important part of the General Assembly's action against apartheid in South Africa. In Dugard's terms, this was ‘the ultimate step in the condemnation of apartheid as it not only declared that apartheid was unlawful because it violated the Charter of the United Nations, but in addition it declared apartheid to be criminal’.Footnote 40 In Article 2, the Convention sets out a definition—the first enshrined in a treaty—of apartheid in the following terms:
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 practised 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:
a. denial to a member or members of a racial group or groups of the right to life and liberty of person:
i. by murder of members of a racial group or groups;
ii. 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;
iii. by arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
b. deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;Footnote 41
c. 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;
d. 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;
e. exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
f. persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.Footnote 42
Here, then, is a definition of apartheid. The question, though, is whether this definition informs States’ obligations under custom and Article 3 of ICERD.
In this respect, there are some reasons for caution. First, conceptually, it cannot be assumed that the definition of a term in a later convention necessarily determines the scope of existing or crystallizing obligations framed by the same term under earlier treaties or in custom. Second, and relatedly, it is possible for States to establish criminal responsibility for individuals only in relation to a narrower range of conduct than that proscribed under a (concurrent) rule binding the State,Footnote 43 or, indeed, try to make clear that the two norms should be kept separate.Footnote 44 Third, as to the breadth of State participation, the Apartheid Convention was not immediately or later universally ratified. Today, it has 110 State parties.Footnote 45
Though these are reasons for proceeding cautiously, the more convincing view is that the definition in the Apartheid Convention does give content to both the customary prohibition on apartheid and to the rule in Article 3 of ICERD. These will be taken in turn, for they implicate different issues.
To start with the customary rule, the drafting and adoption of the Apartheid Convention was part and parcel of the same process, centred in the General Assembly, that led to its crystallization. Indeed, this is evident in the Preamble to the Apartheid Convention itself, which refers explicitly to resolutions of both the General Assembly and Security Council condemning apartheid.Footnote 46 There is no evidence indicating that States had in mind two concepts in this process—that is, one definition in relation to the crystallizing customary prohibition binding States and another, different definition for the attempt at criminalization in the Apartheid Convention. Indeed, to the contrary, there are indications in the preparatory works that States had in mind a concept of apartheid that was one and the same as that contemplated in previous instruments and international discussions.Footnote 47
Moreover, as to the extent of State support in that process, during the drafting of the Convention the definition of apartheid in (proposed) Article 2 was adopted in the Third Committee by 88 votes to three against, with 21 abstentions.Footnote 48 That is, there was broad agreement among States on the meaning of the term, and no concerted support amongst those abstaining to propose a different definition.Footnote 49 This is, in the terms of the ILC, a ‘sufficiently widespread and representative’ practice on the question of definition.Footnote 50 On this basis, the definition negotiated by States in the drafting of the Apartheid Convention should be understood to simultaneously inform the customary obligation.
The next question is whether the same applies in relation to Article 3 of ICERD. Here, the analysis is more complicated, for we are dealing with the effects of later conduct of States on a pre-existing treaty obligation—that in Article 3 of ICERD. To recall, Article 3 of ICERD, which entered into force on 4 January 1969, imposes a duty on State parties to ‘prevent, prohibit and eradicate’ all practices of apartheid in territories under their jurisdiction, but leaves the term undefined. Is the definition in the Apartheid Convention relevant to this provision?
In short, the answer is yes. In the process of negotiating and drafting the Apartheid Convention, States likewise made it clear that they had in mind the pre-existing treaty obligation in ICERD. Thus, the Preambles in each of the first draft submitted by Guinea and the Soviet Union to the Third Committee on 5 November 1971,Footnote 51 the revised draft submitted by Guinea, Nigeria, and the USSR on 24 October 1972,Footnote 52 and the final text adopted in 1973 refer explicitly to States’ obligation under ICERD.Footnote 53 In relation to the latter, the 4th recital in the Preamble provides: ‘Observing that, in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination, States particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.’Footnote 54 In other words, the best way to understand the Apartheid Convention is as an attempt to criminalize—with a co-extensive definition—a particular practice already prohibited in treaty law under ICERD.Footnote 55
In formal terms, for those States that were parties to ICERD at the time of this negotiation, their participation in the drafting and adoption of the Apartheid Convention may be understood as subsequent practice relevant to the interpretation of the treaty rule, as provided for in Articles 31(3)(b) and 32 of the VCLT.Footnote 56 In this respect, the ILC's recent work on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties provides the following definitions:
A subsequent practice as an authentic means of interpretation under article 31, paragraph 3(b), consists of conduct in the application of a treaty, after its conclusion, which establishes the agreement of the parties regarding the interpretation of the treaty.Footnote 57
A subsequent practice as a supplementary means of interpretation under article 32 consists of conduct by one or more parties in the application of the treaty, after its conclusion.Footnote 58
As the ILC explains, such practice may take a range of forms, and includes statements or conduct on the international plane that indicate how the treaty is to be interpreted.Footnote 59
In the present instance, it may be that States’ conduct in the Third Committee and General Assembly does not quite meet the threshold of establishing ‘the agreement of all the parties’ to ICERD at the time,Footnote 60 as required by Article 31(3)(b) of the VCLT.Footnote 61 In this regard, the Brazilian delegate, for instance, expressed ‘serious misgivings’ about the definition in the draft Convention,Footnote 62 and there remains the fact that the United Kingdom, also a party to ICERD at the time, voted against the adoption of the Convention in the General Assembly.Footnote 63 Even so, it is clear that for a large majority of States, the definition negotiated and adopted in Article 2 of the Apartheid Convention represented their understanding of the meaning of the term, relevant to the interpretation of Article 3 of ICERD as subsequent practice under Article 32 VCLT.Footnote 64 In this respect, as before, the definition itself was adopted by 88 votes to three, with 21 abstentions, where many of the States voting in favour were also parties to ICERD.Footnote 65 As to the voting in the General Assembly itself, the Convention was adopted by 91 votes to four, with 26 abstentions. Moreover, there was no contemporaneous attempt by another group of States to establish an alternative definition. Although this practice is not unanimous, its overwhelming weight and specificity establishes its relevance to the interpretation of Article 3 of ICERD.Footnote 66
This argument helps to determine the meaning of Article 3 of ICERD at the time of the drafting of the Apartheid Convention. Since then, and leaving aside the issue of the Rome Statute addressed in the next subsection, there is no evidence of contrary practice that changes this conclusion. As Thornberry notes, since South Africa's transition to democracy, ‘clearer specification of the meaning of apartheid has hardly been forthcoming in CERD practice’.Footnote 67 In its Concluding Observations on Israel's Periodic Reports, for instance, the Committee has referred to Article 3 of the Convention without distinguishing its elements of racial segregation and apartheid,Footnote 68 and without any exposition of apartheid's meaning.Footnote 69 Israel's most recent submission, itself, contains no discussion of the meaning of the term,Footnote 70 and in respect of the periodic reports of other States, it is difficult to glean anything of particular value other than that certain States report their domestic criminalization of apartheid, drawing on the definition in the Apartheid Convention, as evidence of their compliance with Article 3.Footnote 71 In relation to individual communications under Article 14 of ICERD, the single complaint that has alleged a breach of Article 3 was found, in relation to that aspect of the claim, to be inadmissible.Footnote 72 Finally, there is the ongoing interstate communication between Palestine and Israel, filed in 2018.Footnote 73 Here, Palestine takes the view set out above—it holds that the Apartheid Convention ‘provides the best definition for the purposes of interpreting Art. 3 CERD’.Footnote 74
C. The Impact of the Rome Statute?
There remains, however, one final question about the meaning of apartheid in custom and Article 3 of ICERD: the potential relevance of the negotiation and adoption of the Rome Statute in 1998. Article 7(1)(j) of the Statute includes ‘the crime of apartheid’ as an act constituting a crime against humanity. Article 7(2)(h) then defines the ‘crime of apartheid’ as:
[I]nhumane acts of a character similar to those referred to in paragraph 1,Footnote 75 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.Footnote 76
For present purposes, the context requirement—the existence of an institutionalized regime—creates an important difference from the definition in the Apartheid Convention.Footnote 77 It is true that the Apartheid Convention refers to ‘systematic oppression’, and it is also true that an institutionalized regime is almost certainly how a State would give effect to such oppression. But, formally, under the definition in the Apartheid Convention, it is in the mental element that the systematic aspect of the wrong is located—in the State agents’ goals.Footnote 78 A State whose purpose is to establish a regime of systemic oppression on racial grounds breaches the prohibition of apartheid as set out in the Apartheid Convention as soon as it imposes the first of the measures that constitute the enumerated acts of the wrong.Footnote 79 On that definition, the existence of an institutionalized regime is not a prerequisite.
The question, then, is whether States’ negotiation, drafting, and adoption of the Rome Statute affected their pre-existing obligations under custom or ICERD—whether the requirement of the context of institutionalized oppression now applies to those rules too. The answer is no. In this respect, the key point is that there is no evidence to suggest that States in Rome understood themselves to be negotiating a definition for the purposes of the Rome Statute and that would be relevant to their pre-existing obligations under custom or under Article 3 of ICERD.Footnote 80 In other words, this is simply not practice relevant to the customary prohibition or ‘conduct [of parties to ICERD] in the application of the treaty’,Footnote 81 as would be necessary to render it relevant to interpreting Article 3. This distinguishes the present situation from that set out above concerning the negotiating of the Apartheid Convention. That is prior to additional, formal, questions of interpretation that would concern the weight of any such subsequent practice in determining the meaning of the pre-existing rule,Footnote 82 or the generality of that practice for changing the customary rule.
In the absence of such evidence, the delineation of the crime of apartheid for the purposes of the Rome Statute does not affect the scope of existing State obligations. That is, the State wrong and the international crime under the Rome Statute are not identical. Although this does introduce a degree of complexity into the analysis, it is neither conceptually nor practically problematic.Footnote 83
IV. THREE KEY ISSUES
With this definition in mind, Section IV turns to three key elements of the prohibition of apartheid. First, there is the question of the enumerated acts, as set out in Article 2 of the Apartheid Convention. Second, there is the fault element and, in particular, the question of what is meant by the term ‘purpose’ in the definition—in the sense that the State's purpose must be to establish and maintain domination and systematic oppression. Third, and finally, there is the question of what is meant by a ‘racial’ group—the intended domination must be by one racial group of persons over any other racial group of persons. One issue, here, concerns the meaning of the term ‘race’; a second concerns its relationship with nationality or citizenship.
A. The Wrongful Acts of Apartheid
As set out above, apartheid under both Article 3 of ICERD and custom comprises, in the first place, sets of what the Apartheid Convention calls ‘inhuman acts’. These acts are broadly defined and cover quite different forms of conduct. For the most part, these enumerated acts concern violations of fundamental rights under international law—a link reinforced by the Preamble's reference to the Universal Declaration of Human Rights. The content of these rights—and thus the enumerated acts—may be determined by reference to the International Covenant on Civil and Political RightsFootnote 84 and the International Covenant on Economic, Social and Cultural Rights,Footnote 85 as well as broadly ratified issue-specific instruments. In these conventions and instruments, the rights have undergone detailed development.
Thus, to draw out some examples: under Article 2(a) of the Convention, apartheid might be constituted by the ‘denial to a member or members of a racial group or groups of the right to life and liberty of person’. In its subcategories, the Convention refers to ‘murder’, ‘infliction of serious bodily or mental harm’, and ‘arbitrary arrest and illegal imprisonment’.Footnote 86 In determining the meaning of arbitrary arrest and illegal imprisonment, for instance, reference may be made to the close exposition of standards in the Human Rights Committee's General Comment 35.Footnote 87 In Article 2(e) the Convention singles out the specific practice of: ‘exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour’.Footnote 88 In this respect, standards developed by the Human Rights Committee in relation to Article 8 of the ICCPRFootnote 89 and by the supervisory mechanism of the International Labour Organisation in relation to the widely ratified Forced Labour ConventionsFootnote 90 may be taken to inform the enumerated act in Article 2(e).
The two examples in the preceding paragraph entail quite specific forms of wrongdoing on the part of the responsible State. By contrast, a different approach is found in Article 2(c), which is worth quoting in full:
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.Footnote 91
The final section of this article returns to the wider implications of this provision in thinking about the kinds of harms that international law marks as particularly grave. For present purposes, the key issue is the evident breadth of the enumerated acts that might constitute apartheid: any measures calculated to prevent the group's participation in political, social, economic and cultural life—participation here being defined in relation to a non-exhaustive list of civil, political, social, and economic rights. Insofar as they are unlawful under international human rights law, the under-provisioning of schools, restrictions on movement, and bans on political speech or organizing may constitute enumerated acts of apartheid.Footnote 92 In many situations, State conduct of this kind will also entail a violation of the right to self-determination.Footnote 93
There is one final point to emphasize in relation to the enumerated acts of apartheid. For a State to commit the wrong of apartheid it is not required that a context of systematic and institutionalized domination has come into being. As long as the State's purpose is establishing such a system of oppression, as soon as any single enumerated act is undertaken the wrong is committed.Footnote 94 That is, the scale and gravity of the wrong is located predominantly in the mental element—in the State's goals.Footnote 95 As noted above, this distinguishes the State wrong from that arising under the Rome Statute, which requires a ‘context of an institutionalized regime of systematic oppression and domination’.Footnote 96
B. The Purpose Requirement
Key to any allegation of apartheid is the requirement of a wrongful purpose: the acts must be 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’.Footnote 97 This is apartheid's specific intent—a requirement that may also be characterized as one of ulterior intent.Footnote 98 Here, there are three questions. First, what is the meaning of domination and systematic oppression; second, what exactly is entailed by the requirement of ‘purpose’; and third; how might such a purpose be shown?
On the first question, as to the meaning of ‘domination’, scholarship identifies it with the idea of controlFootnote 99—it may be understood as a particularly powerful form of control. As to systematic oppression, the term systematic may be read in the light of the case law on the requirement of a ‘systematic’ attack in the contextual element of crimes against humanity.Footnote 100 Formulations differ, though that of Appeals Chamber of the ICTY in Kunarac may be adopted: ‘[T]he phrase “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.’Footnote 101 Oppression may be understood as prolonged or continual cruelty.Footnote 102 These elements are conjunctive—the State's purpose must be domination and systematic oppression. In short, they speak to the scale, organized nature, and gravity of what the State is aiming to do.
The second question, then, is what exactly is entailed in the requirement of ‘purpose’—apartheid's specific fault element. As a starting point, it makes sense to look to case law on genocide, which also implicates the singling out and targeting of a particular group, and where the distinctive fault element of the crime and (concurrent) State wrong—its specific intent—has received extensive attention. In Krstić, the Trial Chamber of the ICTY characterized genocide as encompassing ‘only acts committed with the goal of destroying all or part of a group’.Footnote 103 Analogously, the Appeals Chamber of the ICTY in Jelisić held that the ‘specific intent requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such’.Footnote 104 Summarizing this case law, Ambos notes that ‘“intent to destroy” means a special or specific intent which, in essence, expresses the volitional element in its most intensive form and is purpose-based’.Footnote 105
In this light, turning to apartheid and its purpose requirement, the State's goal must be racial domination and systematic oppression. On one hand, there is a narrowness to this requirement. Excluded, on this definition, are foreseen consequences—even where certain—that are not entailed in what the State seeks to achieve. That is, there may be regimes of inequality that arise as a consequence of State conduct that, even where anticipated, do not meet the legal definition of apartheid.Footnote 106 On the other hand, this requirement is not as narrow as it seems.Footnote 107 This is so for three reasons. First, different agents of the State might act for different reasons, and a State is responsible for apartheid where any of the individuals whose acts are attributable to it acted with the requisite purpose.Footnote 108 Moreover, there is no need for the wrongful purpose to be located in the political leadership of the State.Footnote 109 Second, a particular individual whose conduct is attributable to the State might act for more than one purpose. As long as the end of establishing or maintaining racial domination is one of the relevant ends playing a role—as long as it is one of the things they seek to achieve—that is sufficient. And third, perhaps most importantly, what a State (through its agents) seeks to achieve includes what is chosen by those agents as a means to bring about another, further end.Footnote 110
This final possibility is particularly important in thinking about the wrong of apartheid. As noted above, there may be situations in which racial domination is the end in itself. But it is also possible that the State will be acting for a purpose understood by international law to be legitimate—national security or the maintenance of public order. Of course, any measures that do not relate to such a purpose cannot be justified by it, and the imposition of such measures on the group will be a good indication that what the State is seeking to achieve is racial domination. However, even where the measures do relate to the end of security, it will still be apartheid if the State is choosing a regime of racial domination in order to ensure its security or order.Footnote 111 This is apartheid as a means to an end. Although this might be a choice from the beginning of the interaction, it is more likely that the material relations harden over time into a regime of domination, which the State then chooses to maintain in order to secure other ends. That choice entails a breach of the prohibition of apartheid.
Third, and finally, there is the issue of how the wrongful purpose of apartheid may be shown. Again, here, the analogy to genocide is helpful. As set out in the Bosnian Genocide case before the International Court of Justice, one possibility is to show the existence of an explicit plan—a plan to systematically oppress the targeted group on racial grounds.Footnote 112 More likely, perhaps, is an inference of that purpose. In Jelisić, the ICTY Appeals Chamber confirmed that absent explicit evidence, the specific intent for genocide may ‘be inferred from a number of facts and circumstances’,Footnote 113 which included ‘the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts’.Footnote 114 For the wrong of apartheid, these factors ought to apply analogously.
In addition, evidence of a context of dehumanization and stigmatization of the targeted group will make an inference of the requisite purpose more likely.Footnote 115 In its Report to the Human Rights Council, the Independent Fact-Finding Mission on Myanmar emphasized the relevance to an inference of genocide's specific intent of both a broader context of dehumanization and othering of the targeted group and specific utterances of leaders and direct perpetrators.Footnote 116 In the case of apartheid, evidence of this kind points towards an intention to establish racial domination. Combined with evidence of the scale and systematicity of the wrongful acts, apartheid's wrongful purpose is likely to be found.
C. Racial Groups
The third issue in relation to the prohibition of apartheid concerns the meaning of a ‘racial group’—the State's purpose in undertaking the inhuman acts of apartheid must be to establish and maintain ‘domination by one racial group of persons over any other racial group of persons’. There may be cases where this aspect of the wrong will be easy to comprehend. In others, it will be more complex. In this respect, there are two questions. The first relates to the term ‘racial group’ itself.Footnote 117 The second concerns the relationship between racial discrimination for the purposes of apartheid and discrimination on the basis of citizenship or nationality.
On the first question, matters are rendered more straightforward by ICERD's approach to the definition of racial discrimination. Article 1(1) of the Convention provides:
In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, 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.Footnote 118
There is no reason to think that this definition, which is certainly broad, does not apply to the idea of ‘racial’ groups underpinning the prohibition on apartheid in Article 3 of ICERD.Footnote 119 That is, the State's purpose may be to establish domination by one group over another group defined by race, colour, descent, national origin, or ethnic origin. The same may be said for the customary rule. In this respect, as noted above the Apartheid Convention, which provides the definition for the customary rule, makes explicit reference to ICERD in the preamble.Footnote 120 More generally, it would be strange to think that a set of practices in relation to a particular group may constitute racial discrimination in terms of the general approach in ICERD but not, where the wrongful purpose exists, the domination of a racial group for the purposes of the prohibition of apartheid.
Beyond this point, certain others may be drawn out. First, in any particular context, these terms may overlap. Second, the inclusion of national or ethnic origin within the definition takes the pressure off, in part, complexity around the meaning of ‘race’, specifically. In relation to practice under ICERD, Thornberry puts this well: ‘‘‘National or ethnic origin’’ often function as a yoked pair of workhorses, employed whenever issues of colour (‘visible minorities’) are not the most prominent markers of discrimination.’Footnote 121 Third, though its significance is diminished by the preceding points, there may remain the problem of defining ‘race’ itself. In this respect, international criminal tribunals have shifted away from providing ‘objective’ elements that define a group,Footnote 122 instead focusing on the subjective perceptions of the perpetrators and/or victims.Footnote 123 This approach is more convincing—to look to the perceptions as well as practices of the actors, which over time instantiate the reality of race and domination in the particular context.Footnote 124
There persists, however, one other question—the relationship between racial discrimination and nationality: could a system of apartheid be imposed by one national group on another national group? This question is most likely to arise in the context of military occupation, where there exists the factual predicate for the imposition of a system of domination entailed by apartheid. In framing this question, some care is needed: it arises only where the measures target all nationals of the second State. In the context of occupation, more likely in practice is that the occupant distinguishes among nationals of the occupied State on the basis of either race per se or ethnic origin. In relation to ethnic origin, the relevant term may track the name of the State itself, but this should not mislead us into thinking it is a nationality distinction. Thus, for example, Azerbaijan's claim before the ICJ alleges discriminatory treatment by Armenia of Azerbaijanis as an ethnic group within Azerbaijan.Footnote 125 As set out in the submission, that group is one of many ethnicities in the country—‘Armenians, Russians, Ukrainians, Lezgis, Talyshs, Avars, Kurds, Jews and Tatars’.Footnote 126 Only if the impugned measures were imposed on all citizens would the difficult question of nationality and race arise.
In relation to this question, exceptional as it is, the law is unsettled. On one hand, the practice of the CERD Committee, in General Recommendation XXX and in the proceedings between Qatar and the United Arab Emirates, reads Article 1 of ICERD to encompass some forms of discrimination on the basis of citizenship or nationality.Footnote 127 Any such measures require a legitimate aim and a relationship of proportionality in achieving that aimFootnote 128—that is, determination of whether the measures constitute racial discrimination is pushed to a substantive evaluation of the justifiability of the measures themselves.Footnote 129 On the other hand, in parallel proceedings between those two States, the ICJ held that the term ‘national origin’ in Article 1(1) of ICERD does not encompass nationality.Footnote 130 On this account, measures that distinguish between people on the basis of citizenship do not constitute racial discrimination for the purposes of the Convention.Footnote 131 They would thus also not fulfil the relational element for the wrong of apartheid.
From an evaluative perspective, the better approach is to recognize that distinctions on the basis of nationality may, in certain circumstances, coincide with an operative racial classification in a particular context—that is, nationality may track a conception of race in a certain place and time.Footnote 132 Regimes of domination imposed in such cases may entail both discrimination on the basis of nationality and discrimination on the basis of race—and, thus apartheid.
V. WIDER IMPLICATIONS
Moving away from these specific aspects of the prohibition on apartheid, a further question is why, or how much, these issues matter? A sceptical view might note that the compound structure of the wrong—in essence, human rights violations committed with particular purpose—means that any practices that constitute apartheid will necessarily be wrongful in any event under other rules of international law. The enumerated acts—defined as they are in relation to international human rights law—will breach the rights to liberty, education, movement, or expression, as the case may be. Moreover, any conduct of this kind undertaken with the purpose of systematic oppression will violate the prohibition of non-discrimination under international law. What, in reality, does the prohibition of apartheid add?
Leaving aside the question of individual criminal responsibility for apartheid under international law, the proper delineation and appreciation of the State wrong is important for at least three reasons. First, in relation to law's expressive function, labelling and condemning this particular political system is important. The distinctive evil of apartheid—the systematic domination of a group of people on racial grounds—is captured and communicated, and for those subject to such a regime, recognized.Footnote 133 Second, and connected to the first, that these practices constitute apartheid and not (just) discrimination or human rights abuses may be significant politically. It may be significant in driving a particular situation onto the political agenda, or provoking political actors’ engagement with it. For advocacy organisations, it provides a point of focus—using the term's expressive power as a basis for mobilisation.Footnote 134 Finally, there are additional legal consequences that follow from a breach of the prohibition of apartheid. Apartheid is widely understood to fall within the small set of peremptory norms of international law.Footnote 135 At set out in Article 40 of the Articles of State Responsibility, where the breach is ‘serious’—as it surely will be in all cases of apartheid—the consequences set out in Article 41 will apply.Footnote 136 This entails for all States the three duties of cooperation in bringing to an end the serious breach, non-recognition of the situation as lawful, and non-assistance in the maintenance of the situation.Footnote 137
This is to say that the prohibition of apartheid matters even though the relevant acts will also breach other rules of international law. In addition, the recognition and application of the wrong of apartheid is important for another reason. This reason concerns the kinds of harm and violence regulated by international law and which international law marks out as particularly grave—whether through penalisation under international criminal law or through the aggravated regime of State responsibility for peremptory norms. In recent years, this question has provoked a rich stream of scholarship across different fields.Footnote 138 For instance, Cusato's monograph identifies obstacles to the recognition of what she calls slow or ‘less visible forms of violence’ by international law.Footnote 139 Schmid argues that the ‘mechanisms of international criminal law often marginalise or ignore those crimes that overlap with’ violations of economic, social, and cultural rights.Footnote 140 And more widely, Miller, writing in 2008, argued that ‘the literature, institutions and international enterprise of transitional justice historically have failed to recognize the full importance of structural violence, inequality and economic (re)distribution to conflict’.Footnote 141
How does this stream of scholarship relate to the prohibition of apartheid in international law? In the wrong of apartheid, international law has marked with particular normative significance a set of practices that need not entail any forms of individualized violence to life or bodily integrity. Indeed, we may put that more strongly—these forms of individualized violence are not at the heart of the wrong. Rather, as in Article 2(c) of the Apartheid Convention, the heart of the wrong concerns practices ‘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’.Footnote 142 Thus, in the South African case, the Group Areas Act of 1950,Footnote 143 the Natives (Abolition of Passes and Co-Ordination of Documents) Act of 1952,Footnote 144 the Bantu Education Act of 1953,Footnote 145 the Native Labour (Settlement of Disputes) Act of 1953,Footnote 146 and the Reservation of Separate Amenities Act of 1953Footnote 147 together imposed a regime of repression of black South Africans’ rights to movement, property, education, and equal access to public goods, as well as their labour rights.Footnote 148 This is not to deny that the sharp edge of the State backed up this regime, or that the State undertook numerous acts of murder, torture, and arbitrary imprisonment.Footnote 149 Rather, however, it is to emphasize the significance of a wrong at whose heart are forms of systematic harm, imposed on racial grounds, that do not involve life or bodily integrity in the narrow sense.Footnote 150
VI. CONCLUSION
In Nicaragua, the International Court of Justice suggested that sovereignty entailed for States the freedom to choose their ‘political, economic, social and cultural system’.Footnote 151 This isn't quite true,Footnote 152 for all States are prohibited from adopting a system of apartheid. As to what such a system entails, this article has argued that the Apartheid Convention of 1973 provides the definition of the wrong binding all States in customary international law, as well as definition for the treaty rule in Article 3 of ICERD. This amounts to the commission of human rights violations for the purpose of establishing and maintaining racial domination and systematic oppression. Although some elements of the prohibition are complex and will likely be contested as the wrong assumes greater importance in international legal practice, the core is clear: the categorical and non-derogable proscription by international law of systems of racial domination.
