Monday, January 9, 2012

Competing Obligations: the African Union and the ICC

Our ISS position paper on the competing obligations on African ICC states parties in respect of the arrest and surrender of President al-Bashir was launched on the sidelines of the ASP and is available for download here. The following is a précis of the the paper:

The fulcrum of African states’ discontent with the International Criminal Court (ICC) was the arrest warrant issued for
President Omar al-Bashir of Sudan in 2009. In response, the African Union (AU)
has taken a number of measures, the most controversial of which are the
decisions that African states will not cooperate in the arrest and surrender of
Bashir. For African countries that are ICC members, these decisions present
particular legal challenges: on the one hand, states parties are obliged under
the ICC’s Rome Statute to cooperate fully with the court; on the other, the AU’s
Constitutive Act warns that the failure of a member state to comply with AU
decisions may result in sanctions being imposed. After interrogating the legal
aspects of these competing obligations, this paper delineates the international
obligations on African states in respect of Bashir, considers the obligations on
African states parties in respect of AU decisions, and presents two possible
means of resolving the apparent conflict between commitments to the ICC and the

The position paper was made possible through the support of the Open Society
Foundation of South Africa (OSF-SA), and the governments of the Netherlands and
Norway. In addition, general ISS funding is also provided by the governments of
Sweden and Denmark.

New Years Resolution #1: Update blog more

by Tour

First of all, my apologies for the intermittant posts towards the end of 2011. I've made it my New Years Resolution to update the blog more regularly. Thanks to Max for 'carrying' the blog while I was absent. As a result of my incompetence, there are a number of posts that should have been posted earlier that are only going up now. In addition to Max's submission to the Russell Tribunal from November 2011 (below), there is also a submission we made to South Africa's Parliament on the Geneva Convention's Bill, a short paper on Prosecuting Grand Corruption as an International Crime and some reflections on the PTC's now-thoroughly-reviewed Malawi non-cooperation decision: all of which I will post this week. My apologies for the delayed and consequently anachronistic posts, I trust they will be of some (albeit diminished) value. Finally, I've uploaded a full version of my paper titled 'Immunity, Cooperation and the Implementation Legislation of Kenya, Uganda and South Africa' (see post below) on ssrn (here).

The Prohibition Of Apartheid In International Law – And Its Relevance To Israel

The following presentation was made by Max du Plessis before the Third International session of the Russell Tribunal
on Palestine that took place in C
Town in November 2011.

The prohibition of apartheid
in treaty and customary law

The first international
instrument expressly to prohibit apartheid was the International Convention for
the Elimination of All Forms of Racial Discrimination (ICERD), adopted in 1965.
ICERD is a multilateral human rights treaty that seeks to eliminate all forms
and manifestations of racial discrimination and, as its chapeau states, ‘build
an international community free from all forms of racial segregation and racial
discrimination’. Its preamble affirms that parties to the Convention are
‘[a]larmed 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
’.  Article
3 then specifies the obligation of States parties to the Convention to oppose

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.

Including a prohibition of
apartheid in ICERD was an exception to the practice of the drafters not to
refer to specific forms of discrimination in the treaty.  This was done because apartheid differed from
other forms of racial discrimination ‘in that it was the official policy of a
State Member of the United Nations’.
(UN Doc.
A/C.3//SR.1313, cited in David Keane, Caste-based Discrimination in
International Human Rights Law, (Aldershot: Ashgate, 2007), p. 190.)

International Convention on the Suppression and Punishment of the Crime of
Apartheid (Apartheid Convention) was adopted shortly after ICERD to provide a
universal instrument that would make ‘it possible to take more effective
measures at the international and national levels with a view to the
suppression and punishment of the crime of apartheid’.
Apartheid Convention is thus intended to complement the requirements of Article
3 of ICERD, as its chapeau suggests in referring to Article 3. The Apartheid
Convention further declares that apartheid is a crime against humanity and
provides a definition of that crime in Article 2. It consequently imposes
obligations on States parties to adopt legislative measures to suppress,
discourage and punish the crime of apartheid and makes the offence an
international crime which is subject to universal jurisdiction.
(See Articles 4 and 5 of the Declaration).
Thus the Apartheid Convention supplements the general prohibition of apartheid
in ICERD by providing a detailed definition of the crime and by giving several
examples of practices amounting to apartheid when 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’. (See Article
2 of the Declaration.) Subsequent instruments elaborate the meaning of
apartheid and define what constitute the crime of apartheid. The formulation
used in the Apartheid Convention is very similar to that of the Rome Statute of
the International Criminal Court, adopted in 1998.  The Convention defines the crime of apartheid
in Article 2 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’, while the Rome Statute
codifies apartheid crimes as certain inhumane acts ‘committed in the context of
an institutionalized regime of systematic oppression and domination by one
racial group over any other racial group and committed with the intention of
maintaining that regime’ (Article 7(2)(h)). Both instruments emphasise the
systematic, institutionalized, and oppressive character of the discrimination
involved in apartheid, reflecting the original reasoning for including it in
ICERD as a distinct form of racial discrimination.

customary status of the prohibition of apartheid is indicated by its
configuration within general United Nations efforts aimed at the eradication of
racial discrimination more generally The practice of apartheid has been
condemned in numerous United Nations resolutions and other international
treaties, and reaffirmed as constituting a crime against humanity in the Rome
Statute of the International Criminal Court (1998).  As a particularly pernicious manifestation of
racial discrimination, the practice of apartheid is contrary to fundamental
guiding principles of international law including the protection of human
rights and the self-determination of all peoples. Article 55 of the United
Nations Charter lays the foundation, when it requires Member States to promote
‘universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion’.
Equally important is Article 2 of the Universal Declaration of Human Rights
(1948) which states 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’. 
The subsequent adoption of ICERD was the more concerted effort under
international law to address racial discrimination, including the particular
practice of apartheid.  State parties to
the Convention on the Elimination of Discrimination Against Women emphasise
that ‘the eradication of apartheid, all forms of racism, racial discrimination,
colonialism, neo-colonialism, aggression, foreign occupation and domination and
interference in the internal affairs of States is essential to the full
enjoyment of the rights of men and women’.
At the time of writing,, there are 173 States parties
to ICERD and 185 States parties to the Convention on the Elimination of Discrimination
Against Women, demonstrating near-universal support and legal commitment to the
elimination of racial discrimination and the prohibition of apartheid.

the Russell Tribunal is not concerned with the question of individual criminal
responsibility for the crime of apartheid, establishing that apartheid is
considered an international offence affirms the seriousness with which it is
viewed under international law and affirms the international community’s
commitment to its eradication. The United Nations General Assembly first
referred to apartheid as a crime against humanity in Resolution 2202 (1966), a
statement that was reiterated by the 1968 Proclamation of Tehran by the
International Conference on Human Rights. 
The enunciation of apartheid as a crime against humanity in the
Apartheid Convention supplemented the general prohibition in ICERD and was
followed by inclusion of the crime of apartheid in Additional Protocol I to the
1949 Geneva Conventions (1977) and the Rome Statute of the International
Criminal Court (1998). 

the majority of States accept the prohibition in ICERD, fewer have ratified the
Apartheid Convention, given the heighted political disagreement at the time it
was created and due to concerns that the convention was seen as seeking to
‘extend international criminal jurisdiction in a broad and ill-defined manner’.
(Myres S. McDougal, Harold D. Lasswell and Lung-chu Chen, Human
Rights and World Public Order (New Haven/London: Yale University Press, 1980),
p. 545.)
Currently, 107 States are parties to the Apartheid
Convention. A majority of States (168) have ratified Additional Protocol I to
the Geneva Conventions of 1949, and an ever-increasing number of States,
currently standing at 119, have become parties to the Rome Statute of the
International Criminal Court, which gives the Court jurisdiction over the crime
of apartheid. There is
no demonstrable
hostility to the apartheid provisions by non-States parties to the treaties,
and several non-parties to the Apartheid Convention have ratified the latter
instruments (for example, the United Kingdom and South Africa).
movement of the international crime of apartheid towards customary
international law reinforces the fact that the prohibition itself is clearly a
rule of customary law. 

The norm against
apartheid – a jus cogens norm imposing obligations erga omnes

prohibition of apartheid can also be considered a norm of jus cogens which creates obligations erga omnes. (see, for instance, A. de Hoogh, Obligations erga omnes
and international crimes (Kluwer: The Hague: 1996), pp. 53-56, 91; and M.
Ragazzi, The concept of international obligations erga omnes (Clarendon Press:
Oxford: 1997) Chapter Three, pp. 182 and 190) 
The International Law Commission has viewed the prohibition of apartheid
as a peremptory norm of general international law and contended that the
practice of apartheid would amount to ‘a serious breach on a widespread scale
of an international obligation of essential importance for safeguarding the
human being’.
(See Draft articles on Responsibility of
States for Internationally Wrongful Acts, with commentaries, 2001, Yearbook of
the International Law Commission (2001) Vol. II, part two, pp. 112-113.)
Commission noted that a general agreement is shared by States as to the
peremptory character of the prohibition on apartheid and other norms at the
Vienna Conference on the Law of Treaties and how apartheid has been prohibited
by a treaty admitting of no exception. With regard to the concept of erga omnes obligations, the
International Court of Justice identified these in the Barcelona Traction case (paras 33-34):

…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 concerned, all States can be held to have
a legal interest in their protection; they are obligations erga omnes

The Court has stated that such an obligation would
arise, for example, ‘from the principles and rules concerning the basic rights
of the human person, including protection from slavery and from racial
discrimination.’ If the prohibition of racial discrimination is to be
considered a rule of jus cogens, then
it follows that the prohibition of apartheid, which addresses a particularly
severe form of racial discrimination, is even more so a rule of jus cogens entailing obligations erga omnes— that is, obligations owed to
the international community as a whole.

The application of the prohibition beyond southern

The Apartheid Convention
takes its inspiration from apartheid South Africa not only in adopting the term
‘apartheid’ but in defining the ‘crime of apartheid’ in the chapeau of Article
2 as ‘similar policies and practices of racial segregation and discrimination
as practiced in southern Africa’. This phrasing clearly indicates that the
Apartheid Convention can be applied outside southern Africa, but it could also
be interpreted to indicate that apartheid in southern Africa provides the
precise and unique template or model by which all other potential regimes are
to be tested for apartheid.

This interpretation would be
incorrect. Because an occurrence of apartheid outside of southern Africa will
inevitably present unique features, reflecting local histories and social
particularities, limiting the Apartheid Convention’s application too closely to
practices of the South Africa apartheid regime could effectively exclude any
other case from qualifying as a ‘crime of apartheid’. Acts in potential
violation of international law are correctly measured against the provisions of
the legal instruments drafted to address them; other cases where their
violation occurred are illustrative. This interpretation of apartheid is
supported by the Committee on the Elimination of Racial Discrimination, which
observed in General Comment 19, paragraph 1:

The Committee on the Elimination of Racial Discrimination calls the
attention of States parties to the wording of article 3, by which States
parties undertake to prevent, prohibit and eradicate all practices of racial
segregation and apartheid in territories under their jurisdiction. The
reference to apartheid may have been directed exclusively to South Africa, but
the article as adopted prohibits all forms of racial segregation in all

also contends that ‘the Convention is drafted in such a way as not to apply
solely to the South African case, although South Africa is mentioned as an
example’. (Roger S. Clark, ‘Apartheid’, in M. Cherif Bassiouni, International
Criminal Law, Volume I, 1999, 643, pp. 643-644.) The prevailing view of
international legal scholars is that while the Convention was drafted
specifically with southern Africa in mind, it is clearly universal in character
and not confined to the practice of apartheid as seen in southern Africa.
During the drafting of the Apartheid Convention, state representatives admitted
that its terms could apply beyond the geographical limits of southern Africa.
In the words of the Cypriot delegate: “When drafting and adopting such an
international convention, it must be remembered that it would become part of
the body of international law and might last beyond the time when apartheid was being practiced in South

That the drafters of the
Apartheid Convention intended that it supply a self-standing and universal
human rights instrument can be read literally in Article I:

The States Parties to the present Convention declare that apartheid is a
crime against humanity and that inhuman acts resulting from the policies and
practices of apartheid and similar
policies and practices of racial segregation and discrimination, as defined in
Article 2 of the Convention
, are crimes violating the principles of
international law, in particular the purposes and principles of the Charter of
the United Nations, and constituting a serious threat to international peace
and security
. [emphasis added]

Reference to practices by
the South African apartheid regime might nonetheless prove useful to this
Tribunal by providing some indication of what the international community
sought to prohibit in adopting the Apartheid Convention. Reference to South
Africa should therefore be treated as a comparative case useful to illuminating
possible practices that fall within the ambit of the Apartheid Convention.

The core elements of the definition of apartheid

To assess whether the State
of Israel is practising apartheid in the occupied Palestinian Territory (OPT),
it will be necessary for this Tribunal to draw principally on the definition of
apartheid contained in the Apartheid Convention. The definition of apartheid in
the Apartheid Convention is contained in Article 2 and reads in full as

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

(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

(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;

Persecution of organizations and persons, by depriving them of fundamental
rights and freedoms, because they oppose apartheid

construction of a ‘racial group’ is fundamental to the question of apartheid.
Having regard to the definition of ‘racial’ in international law, on the broad
construction given to that term in ICERD, on the jurisprudence of the ad hoc international criminal tribunals
on the interpretation of ‘racial group’, and on the perceptions (including
self-perceptions) of Jewish identity and Palestinian identity, illustrate that
Israeli Jews and Palestinian Arabs should be defined as distinct racial groups
for the purposes of the definition of apartheid.

status as a ‘Jewish state’ is inscribed in its Basic Laws, and it has developed
legal and institutional mechanisms by which the state seeks to ensure an
enduring Jewish character. These laws and institutions are channelled into the
OPT to convey privileges to Jewish settlers and disadvantage Palestinians on
the basis of their respective group identities. This domination is associated
principally with transferring control over land in the OPT to exclusively
Jewish use, thus also altering the demographic status of the territory. This
discriminatory treatment cannot be explained or excused on grounds of
citizenship, both because it goes beyond what is permitted by ICERD and because
certain provisions in Israeli civil and military law provide that Jews present
in the OPT who are not citizens of Israel also enjoy privileges conferred on
Jewish-Israeli citizens in the OPT. In sum, the state of Israel exercises
control in the OPT with the purpose of maintaining domination by Israeli Jews
over Palestinian non-Jews. It will be for the Tribunal to determine whether
this system resembles that of apartheid.

Israeli policies and practices that correspond to practices cited in Article 2
of the Apartheid Convention, Article 5 of ICERD, and Article 7(1) of the Rome
Statute can be interpreted as serving the purpose of maintaining racial
domination by one group over another. The Tribunal might consider, having
regard relevant practices with Article 2 of the Apartheid Convention as the
guiding framework:

  • Whether article 2(a)
    regarding denial of the right to life and liberty of person is satisfied
    by Israeli measures that repress Palestinian dissent against the
    occupation and its system of domination.

  • Whether article 2(b)
    regarding ‘the deliberate imposi­tion on a racial group or groups of
    living conditions calculated to cause its or their physical destruction in
    whole or in part’ is satisfied; that is, whether Israel’s policies and
    practices in the OPT are intended to cause the physical destruction of the
    Palestinian people. Policies of collective punishment that entail grave
    consequences for life and health, such as closures imposed on the Gaza
    Strip that limit or eliminate Palestinian access to essential health care
    and medicine, fuel, and adequate nutrition, and Israeli military attacks
    that inflict high civilian casualties, are serious violations of interna­tional
    humanitarian and human rights law. 
    The Tribunal will have to consider whether they meet the threshold
    required by this provision regarding the OPT as a whole.

  • Whether article 2(c)
    regarding measures calculated to prevent a racial group from participation
    in the political, social, economic and cultural life of the country and to
    prevent the full development of a group through the denial of basic human
    rights and freedoms is satisfied, in particular, having regard to:

restrictions on the Palestinian right to
freedom of movement, for example, arising from Israel's control of the OPT's
border crossings, from the Wall in the West Bank, from a matrix of checkpoints
and separate roads, and from the all-encompassing permit and ID systems;

   administrative restrictions on the right of
Palestinians to choose their own place of residence within their territory,
including the the limitations on both residency and building in East

the limitations upon Palestinians of their
right to leave and return to their country;

the restrictions on Palestinians right to work,
particularly those that curtail Palestinian agriculture and industry in the
OPT, restrict exports and imports, and impose obstacles to internal movement
that impair access to agricultural land and travel for employment and business;

fact that Palestinian trade unions exist but are not recognised by the Israeli
government or by the Histadrut (the largest Israeli trade union) and cannot
effectively represent Palestinians working for Israeli employers and

the fact that while Israel does not operate the
school system in the OPT, it is severely impeded by military rule, including extensive
school closures, direct attacks on schools, severe restrictions on movement,
and arrests and detention of teachers and students; and, through Israel’s
denial of exit permits, particularly for Palestinians from the Gaza Strip, the
impact on students wishing to continue their education abroad;

(viii)       the
impact on Palestinians’ right to freedom of opinion and expression through
censorship laws enforced by the military authorities;

the limitation on the right to freedom of
peaceful assembly and association through military orders;

o   Whether
article 2(d) relating to division of the population along racial lines, is
satisfied, in particular, having regard to:

the effect of Israeli policies that have
divided the OPT into a series of non-contiguous enclaves or ‘reserves’ into
which Palestinians are effectively confined;

the practical obstacles to any potential mixed
marriage between Israelis and Palestinians;

the appropriation by Israel of Palestinian land
in the OPT for exclusively Jewish use.

o   Whether
article 2(e) relating to exploitation of labour is satisfied.

o   Whether
the arrest, imprisonment, travel bans and the targeting of Palestinian
parliamentarians, national political leaders and human rights defenders, as
well as the closing down of related organisations by Israel, represent
persecution for opposition to the system of Israeli domination in the OPT,
within the meaning of Article 2(f).

It is reiterated that any
comparative analyses of South African apartheid practices by the Tribunal
should be done to illuminate, rather than define, the meaning of apartheid, and
there are certainly differences between apartheid as it was applied in South
Africa and Israel’s policies and practices in the OPT. Nonetheless, it will be
for the Tribunal to determine whether the two systems can be defined by similar
dominant features.

A troika of key laws
underpinned the South African apartheid regime—the Population Registration Act
1950, the Group Areas Act 1950, and the Pass Laws—and established its three
principal features or pillars. The first pillar was formally to demarcate the
population of South Africa into racial groups through the Population
Registration Act (1950) and to accord superior rights, privileges and services
to the white racial group: for example, through the Bantu Building Workers Act
of 1951, the Bantu Education Act of 1953 and the Separate Amenities Act of
1953. This pillar consolidated earlier discriminatory laws into a pervasive
system of institutionalised racial discrimination, which prevented the enjoyment
of basic human rights by non-white South Africans based on their racial
identity as established by the Population Registration Act.

The second pillar was to
segregate the population into different geographic areas, which were allocated
by law to different racial groups, and restrict passage by members of any group
into the area allocated to other groups, thus preventing any contact between
groups that might ultimately compromise white supremacy. This strategy was
defined by the Group Areas Act of 1950 and the Pass Laws—which included the
Native Laws Amendment Act of 1952 and the Natives (Abolition of Passes and
Co-ordination of Documents) Act of 1952—as well as the Natives (Urban Areas)
Amendment Act 1955, the Bantu (Urban Areas) Consolidation Act 1945 and the
Coloured Persons Communal Reserves Act 1961.

This separation constituted
the basis for the policy labelled ‘grand apartheid’ by its South African
architects, which provided for the establishment of ‘Homelands’ or ‘Bantustans’
into which denationalised black South Africans were transferred and forced to
reside, in order to allow the white minority to deny them the enjoyment of any
political rights in, and preserve white supremacy over, the majority of the
territory of South Africa. Although the Homelands were represented by the South
African government as offering black South Africans the promise of complete
independence in distinct nation-States, and thus satisfying their right to
self-determination, the Homelands were not recognised by either the African
National Congress or the international community and were condemned by UN
resolutions as violations of both South Africa’s territorial integrity and of
the right of the African people of South Africa as a whole to
self-determination. Having divided the population into distinct racial groups,
and dictated which groups could live and move where, South Africa’s apartheid
policies were buttressed by a third pillar: a matrix of draconian ‘security’
laws and policies that were employed to suppress any opposition to the regime
and to reinforce the system of racial domination, by providing for
administrative detention, torture, censorship, banning, and assassination.

The Tribunal might consider
whether Israel’s practices in the OPT share the same or similar features to
these three ‘pillars’ of apartheid South Africa.

Not each and every act of apartheid listed in the 1973
Convention need necessarily be perpetrated for a finding of apartheid

The language of the Apartheid Convention indicates
that the list of ‘inhuman acts’ described in Article 2 as comprising the ‘crime
of apartheid’ are intended as illustrative and inclusive, not as exhaustive or
exclusive. That a narrower range of policies could constitute a case of
apartheid is suggested by the history of apartheid South Africa, where, for
example, Article 2(b) regarding the intended “physical destruction” of a group
was not applicable. A broader potential range of policies is implied by the
qualifier of “similar policies and practices … as practiced in southern
Africa”. The ‘shall include…’ wording of the Apartheid Convention also suggests
that a positive finding of apartheid need not establish that all practices
cited in Article 2 are present, or that precisely those practices are present,
but rather  that ‘policies and practices
of racial segregation and discrimination’ form a comprehensive system that has
not only the effect but the purpose of maintaining racial domination by one
racial group over the other.