TRC Final Report

Volume 1

Chapter 4

Part Appendix

Subsection 2

International conventions and other instruments

10 Article 1 of the International Convention on the Suppression and Punishment of the Crime of Apartheid adopted by the General Assembly in 1973 stated that apartheid was a crime against humanity.

11 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity³⁶ stipulated that “inhuman acts resulting from the policy of apartheid are condemned as crimes against humanity”.

12 The 1991 Draft Code of Crimes against the Peace and Security of Mankind³⁷ specifically lists apartheid,³⁸ together with other crimes such as genocide³⁹ and exceptionally serious war crimes,⁴⁰ as crimes against the peace and security of mankind.

13 Although the 1996 Draft Code of Crimes against the Peace and Security of Mankind⁴¹ no longer makes specific reference to apartheid as a separate crime, it does list a set of acts that specifically constitute crimes against humanity. Article 18(f) states:

A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a government or by any organisation or group: … (f) institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population.

14 The Preamble to the African Charter on Human and Peoples’ Rights, to which South Africa became a party in 1996, affirms that African states have a duty to:

...achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertak[e] to eliminate colonialism, neo-colonialism, apartheid [and] Zionism...

15 The international community is presently engaged in the establishment of a permanent International Criminal Court which will be given competence to try persons responsible for crimes against humanity. The proposed definitions of crimes against humanity encompass acts of the kind included in the Draft Code of Crimes against the Peace and Security of Mankind (1991); that is the kind of acts committed in execution of the policy of apartheid. The proposed permanent international criminal court will not have retrospective jurisdiction, with the result that those who have committed crimes of apartheid will not fall within its jurisdiction.

The International Law Commission (ILC).

16 In its Draft Articles on state responsibility, the ILC defines an international crime as a breach of an international obligation so essential for the protection of the fundamental interests of the international community that it is recognised as a crime by that community as a whole. Among such crimes, the ILC lists slavery, genocide and apartheid⁴² .

International courts

The International Court of Justice (ICJ)

17 In 1971, the ICJ asserted that:

Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on the grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. ⁴³

18 In the Barcelona Traction Judgement, the ICJ held that:

an essential distinction should be drawn between 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. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character. ⁴⁴

19 The International Criminal Tribunal for the Former Yugoslavia has recently handed down its historic first judgement. The Tribunal found a Bosnian Serb guilty of, inter alia, ‘crimes against humanity’. The significance of this judgement is evident from the first paragraph of the ruling:

It is the first determination of individual guilt or innocence in connection with serious violations of international humanitarian law by a truly international tribunal, the International Tribunal being the first such tribunal to be established by the United Nations. The international military tribunals at Nürnberg and Tokyo, its predecessors, were multinational in nature, representing only part of the world community. The International Tribunal was established by the Security Council of the United Nations in 1993, pursuant to resolution 808 of 22 February 1993 and resolution 827 of 25 May 1993.⁴⁵

20 The judgement confirms the view in international law that apartheid is a crime against humanity:

The customary status of the Nürnberg Charter, and thus the attribution of individual criminal responsibility for the commission of crimes against humanity, was expressly noted by the Secretary-General. Additional codifications of international law have also confirmed the customary law status of the prohibition of crimes against humanity, as well as two of its most egregious manifestations: genocide and apartheid.⁴⁶