By Steven R. Ratner

Nelson Mandela described apartheid as “the color line that all too often determines who is rich and who is poor… who lives in luxury and who lives in squalor… who shall get food, clothing, and health care… and who will live and who will die.”

Apartheid was the system of racial discrimination and separation that governed South Africa from 1948 until its abolition in the early 1990s. Building on years of discrimination against blacks, the National Party adopted apartheid as a model for separate development of races, though it served only to preserve white superiority. It classified persons as either white, Bantu (black), colored (mixed race), or Asian. Its manifestations included ineligibility from voting, separate living areas and schools, internal travel passes for blacks, and white control of the legal system.

As part of its decades-long efforts to eliminate the practice, the UN adopted in 1973 the International Convention on the Suppression and Punishment of the Crime of Apartheid, which 101 States have ratified. It characterizes apartheid as a crime for which individuals can be held accountable. The convention defines apartheid as a series of “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.” These include denial of the right to life and liberty, imposition of living conditions designed to destroy the group, legislative measures to prevent the group’s participation in national life, division of the population along racial lines, and exploitation of the group’s labor force. It also declares apartheid a crime against humanity.

The Geneva Conventions commit States to a policy of nondiscrimination in treating the sick and wounded, the shipwrecked and stranded, captured combatants and civilians under an occupation regime or caught up in conflict. Apartheid has also been labeled a war crime in international conflicts under Additional Protocol I to the Geneva Conventions. Protocol I lists as grave breaches apartheid “and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination,” though these would only be grave breaches during international armed conflict. The inclusion of apartheid as a grave breach stemmed from the international campaign to isolate South Africa and was opposed by several Western powers as not sufficiently connected to armed conflict. The International Committee of the Red Cross (ICRC) has noted that its presence on the list of grave breaches does not expand the scope of war crimes significantly as many of the worst practices of apartheid would qualify as war crimes if committed in armed conflict. But some acts that were perhaps not criminal previously (though they were unlawful) clearly became such with apartheid’s inclusion—e.g., segregating prisoners of war or civilians by race.

The most recent attempt to criminalize apartheid took place in the context of the UN’s International Law Commission’s 1996 draft code of international crimes, which includes as a crime against humanity an offense called “institutionalized discrimination,” a sort of generic version of apartheid; and the Rome Statute of the International Criminal Court (ICC), which also lists apartheid as a crime against humanity, defining it generically as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups… with the intention of maintaining that regime.”

Despite the Apartheid Convention’s (and now the ICC’s) geographically unconfined definition, states and nongovernmental organizations (NGOs)have only rarely referred to systems outside South Africa as apartheid. Groups such as the Kurds, the Tamils, the South Sudanese, or other indigenous peoples do suffer systematic discrimination that might well meet the definition of apartheid, even if those practices lack all the legal trappings of the South African model. But the term has not been invoked by victims or their advocates, no doubt because it is still associated with South Africa. Thus, the likelihood that individuals will be prosecuted domestically or internationally in the near future for apartheid remains small.

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