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 Cape
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
apartheid:

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.)

The
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’. The
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.

The
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.

Although
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). 

Although
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). The
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

The
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.) The
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
Africa

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
countries.

Clark
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
Africa.’

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
follows:

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;

(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.

The
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.

Israel’s
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.

Consequently,
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:

(i)           
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;

(ii)          
   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
Jerusalem; 

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

(v)         
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;

(vi)        
   the
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
businesses;

(vii)       
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;

(ix)        
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:

(i)           
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;

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

(iii)         
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. 

One African President Speaks Truth to Power on the ICC

By Max du Plessis

Monday 12 December, a cold and cloudless day
in New York, saw the start of the 10th session of the Assembly of States Parties
(ASP) to the International Criminal Court (ICC).

Here over the next few days the ASP will
select six new judges, decide on the ICC’s budget for 2012, and formalise the
consensus candidate for the next Chief Prosecutor of the ICC. About the
Prosecutor: already early in the morning the delegates are pumping hands and
slapping backs, congratulating Fatou Bensouda – the current Deputy Prosecutor of
the ICC – for being elevated to take over the wheel from her boss, Luis Moreno
Ocampo. Ocampo, who has focused his term on African prosecutions,
steps down in mid 2012 after eight years at the helm.

It is a good day for Africa when Bensouda,
an erudite and warm woman who was previously Justice Minister and Attorney
General in The Gambia, becomes the world’s most powerful prosecutor.
Nevertheless, the fact that all the ICC’s cases are in
Africa, together with fundamental concerns about the UN Security Council’s role
in the work of the court, has resulted in criticisms that the ICC is a
neo-colonialist institution that unfairly targets the continent. Relations
between the court and some states, as well as the African Union, are now
strained. Of most concern is that several African governments, including states
parties to the Rome Statute, have publicly refused to cooperate with the court
in the arrest and surrender of suspects.

Ocampo has borne the brunt of Africa’s
dissatisfaction with the court. As a result, some Africans have high
expectations that Bensouda’s ascension will deliver a prosecutor less inclined
to keep the ICC’s focus exclusively on Africa. Reducing resistance to the court
from African governments is a complex and politically charged task, but one that
will be an immediate and continuing priority for the new prosecutor.

The immediacy of that task, let alone its
complexity, has been accentuated by developments in just the past
month.

The most recent turn was a further African
affair for the court: involving the surrender and transfer to the ICC of former
Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The
Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal
six days earlier on 23 November 2011. His transfer to The Hague comes almost a
year to the day after Côte d’Ivoire`s disputed presidential election that
resulted in six months of violence. Gbagbo is charged with bearing
individual criminal responsibility, as indirect co-perpetrator, for crimes
against humanity allegedly committed in his own country.

Gbagbo is the first former head of state to
be transferred to the ICC. He joins a list of senior African
statesmen sought by the Court for international crimes, including arrest
warrants for Sudanese President Omar Hassan al-Bashir and Libyan leader Colonel
Muammar Gaddafi. Al-Bashir continues to evade justice, and Gaddafi met his end
injudiciously in Libya in October 2011.

Gbagbo’s destiny with The Hague occurs
alongside other notable developments in the past month. Most significantly is
the decision by a Kenyan High Court judge ordering Kenyan authorities to arrest
President al-Bashir. That order comes after Kenyan authorities
allowed al-Bashir safe passage through Kenya in violation of Kenya’s
international obligations to cooperate with the ICC in securing his arrest; an
obligation which Kenya’s Parliament has domesticated in its International Crimes
Act of 2008. The case was brought by Kenyan civil society, and the
order is directed at the Minister for Internal Security and the Attorney
General, who were the Kenyan government respondents in the
application.

In the diplomatic equivalent of a blowback,
and proving the increasing relevance of international criminal law (and its
potential political ramifications), the Sudanese government ordered the
immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese
government recalled its representative in Kenya. This backlash against the
ruling included Malawi’s President, Bingu wa Mutharika, reportedly condemning
the ruling while addressing a meeting of the East African
Community. Kenya’s leading newspaper carried a response from
Kenya’s foreign minister, Moses Wetangula, to the effect that this was “a
judgment in error” that “failed to balance the delicate international
relations.” He has said Kenya will find it difficult to obey the court
decision.

The African Union (AU) also weighed in. The
AU Commission issued a statement on 5 December saying that its chairperson “is
closely monitoring the developments in the relations between the Republic of the
Sudan and the Republic of Kenya”. The AU’s statement comes on the back of
troubling decisions by the AU in which it called on its member states not to
cooperate with the ICC in arresting African leaders, including, most recently,
in respect of Colonel Gadaffi (and that despite the blood-letting he had
personally unleashed in Libya, and despite the fact that the UN Security Council
unanimously with South Africa’s positive vote referred Gadaffi’s crimes to the
ICC for investigation). In its 5 December statement, the AU
trotted out that it had “no doubt” that “the entire membership of the AU will
continue to comply scrupulously with the African common position on the respect
of the immunity of the President of the Republic of the Sudan, Mr. Omar Hassan
Al Bashir, as well as that of all the other incumbent African Heads of
State.”

Attempting to capture (in both senses of the word) a common African
position is not as easy as the AU would have it. That is made
clear by what Botswana’s President Seretse Khama Ian Khama said in his keynote
address to the ASP plenary this morning in New York. President
Khama is not blind to what he described as “the perception that the ICC unfairly
targets African countries”. But, refreshingly and honestly, he is
also not blind to the irony, as he put it, “that these crimes are perpetrated,
in most cases, by the very leaders who are supposed to protect the
people”. Khama also regretted the AU’s decision in June 2011 “not
to cooperate with the ICC over the indictments and arrest warrants issued
against some leaders”, which in his view “is a serious setback in the battle
against impunity in Africa” and which “undermines efforts to confront war crimes
and crimes against humanity which are committed by some leaders on the
continent”.

It must therefore be asked: what common
African position is the AU’s Commission dreaming of? If there is a
dream worth focusing on, it might be one that President Khama set out so
forcefully in a UN building on the East River: that is, that we all, including
African leaders and the AU, “need to have the political will and the moral
courage to hold accountable, without fear or favour, anyone in authority –
including a sitting Head of State – when he or she is suspected of having
committed crimes against innocent people”.

The world now has a new chief prosecutor of
the ICC, and she is African. The world has a functioning and
permanent International Criminal Court, and its first cases are in response to
appalling African atrocities. And the world is looking on as
powerful African elites scramble to undermine the work of that
Court. The Court is not beyond reproach. It can and
must do its work faster; it can and must open cases outside of Africa to
deserving cases; and it can and must perform its outreach and publicity
better. But at the same time it’s important for the continent to
hear clearly the words of President Khama as he speaks truth to the AU’s power:
that is that the AU’s negative undermining of the ICC “places Africa on the
wrong side of history”, and “is a betrayal of the innocent and helpless victims
of such crimes”.

Max is senior research
associate on the International Crime in Africa Programme (ICAP) at the Institute
for Security Studies and associate professor at the University of
KwaZulu-Natal. Max is currently part of an ISS delegation
participating in the ICC ASP meeting in New York. ICAP is also
assisting the Botswana Government in drafting its domestic legislation to
incorporate the Rome Statute of the International Criminal Court.

Immunity, Cooperation and the Implementation Legislation of Kenya, Uganda and South Africa

My contribution to the African Study Group meeting (see below) focussed on the issue of immunity under the implementation legislation of Kenya, Uganda and South Africa: insofar as both cooperation with the Court and domestic prosecutions are concerned. The question of immunity and cooperation is clearly of imminent concern given the arrest warrants that have been issued for al-Bashir and Gadhaffi. Although I will be refining my paper over the next few weeks, here are my preliminary views on the issue of immunity vis-a-vis cooperation under each of the implementation acts:

South Africa’s Rome Statute Act (2002)

South Africa’s Rome Statute Act (2002) is silent on the relevance of immunity in relation to cooperation requests from the ICC. Contrary to Kenya and Uganda’s implementing legislation, the Rome Statute Act’s immunity provision focuses on the impact of immunity in domestic prosecutions and makes no mention of immunity in relation to cooperation with the ICC. 

In terms of section 8 of the ICC Act, when South Africa receives a request from the ICC for the arrest and surrender of a person for whom the ICC has issued a warrant of arrest, it must refer the request to the Director-General of Justice and Constitutional Development with the necessary documentation to satisfy a local court that there are sufficient grounds for the surrender of the person to The Hague. As we shall see when we consider Kenya and Uganda’s implementation legislation, this is the point at which the question of article 98’s application would arise, however the Rome Statute Act (2002) makes no mention of article 98. It merely directs the Director-General to forward the request (along with the necessary documentation) to a magistrate who must endorse the ICC’s warrant of arrest for execution in any part of the Republic.

It is worth noting that in practice the South African government has taken the position that immunity is not a bar to cooperation, as evidence by the belated (and begrudging) revelation that the al-Bashir arrest warrant had been endorsed by a South African magistrate, is active in the Republic and that President al-Bashir would be arrested should he be present in the Republic. At no point was mention made of article 98.

Kenya’s International Crimes Act (2008)

In contrast, Kenya’s International Crimes Act (2008) specifically addresses the relevance of immunity in relation to cooperation requests. Section 27(1) thereof – titled ‘Official capacity 
of person no bar 
to request’ – states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person shall not constitute a ground for (a) refusing or postponing the execution of a request for surrender or other assistance by the ICC; (b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC”. However, section 27(1) is subject to the provision of section 115 of the Act, which addresses 'Requests involving conflict with other international obligations'. In terms of this section: “If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General shall inform the ICC to enable it to direct its request to the other State or international organization”. The provision goes on to state that the Minister may postpone the request for assistance in such circumstances.

These provisions of Kenya’s International Crimes Act are interesting for a number of reasons: 

First, the Act (section 115) expressly refers to article 98 of the Rome Statute and in doing so it arguably adopts an interpretation of the article 27/98 relationship that implicitly rejects the article 27 waiver argument adopted by most academics. (See Akande, ‘International Law Immunities and the International Criminal Court’, 98(3) AJIL (2004), 407-433). Section 115 is by no means perfect, it appears to conflate article 98(1) and article 98(2) by referring to requests relating to “persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement”. This is different from article 98(1) which refers to “obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”. What is more, the reference to persons, property or information “subject to the control of another State” is novel and potentially casts the net far wider that traditional immunity ratione personae. However, these difficulties aside, section 115 clearly does not distinguish between persons coming from states parties to the Rome Statute, as the article 27 waiver argument requires. Notably, other implementing acts do make such a distinction. In terms of the United Kingdom’s International Criminal Court Act (2001), “[a]ny state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings… [related to arrest and surrender] in relation to that person”. In contrast, where “state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Statute” a waiver must be obtained from the state or organization concerned.

Second, the Act charges the Court with making a request to the “third state” or organization. This will be done in terms of Rule 195 of the Court’s Rules of Procedure and Evidence, which states that “[w]hen a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98”. What happens thereafter is not clear from the wording of section 115. The most coherent reading suggests that if the request is refused by the third party and the Court decides not to proceed with the original request, then Kenya shall refused the original request for assistance. If the Court nevertheless decides to proceed with the original request regardless, the Kenya shall accede to it provided that “there is no other ground for refusing or postponing the request”. This suggests that Kenya considers itself bound by the Court’s decision in such circumstances. 

Finally, Kenya’s immunity provision makes it clear that personal immunity shall not be a bar to surrender of a person to another state as well, not merely the ICC. In this respect it might go beyond what is permissible under customary international law by allowing Kenya to extradite an official who would otherwise enjoy immunity at the request of a third country. In terms of the ICJ Arrest Warrant decision this would definitely amount to a violation of Kenya’s obligations under customary international law to the ‘sending state’.

Uganda’s ICC Act (2010)

Uganda’s ICC Act (2010) addresses the immunity of immunity in articles 25 and 26. Article 25(1), titled ‘Official capacity of person no bar to request’, states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person is not ground for – (a) refusing or postponing the execution of a request for surrender or other assistance made by the ICC; (b) holding that a person is ineligible for arrest or surrender to the ICC under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC.” This is a carbon-copy of section 27 of Kenya’s Rome Statute Act (2002), with the exception of the reference to surrender to other states. 

In terms of article 25(2) of Uganda’s ICC Act (2010), this section is made subject to section 24(6) which states:

“If the [Justice] Minister is of the opinion that the circumstances set out in article 98 of the [Rome] Statute apply to a request for provisional arrest, arrest and surrender or other assistance, he or she shall consult with the ICC and request a determination as to whether article 98 applies.”

There are obvious similarities between this provision and Kenya’s correlative provision. Both address immunity ratione personae (i.e article 27(2) of the Rome Statute) in relation to cooperation requests rather than domestic prosecutions (in almost identical terms). 

Further, like Kenya, Uganda makes this provision subject to article 98 of the Rome Statute through section 24(6) but makes no distinction between requests relating to state parties to the ICC and those not party. In this respect it contradicts, or at least does not confirm, the article 27 waiver argument in the same way that Kenya’s legislation does.

How section 24(6) will operate however is not clear ex facie. The provision grants the Minister the discretion to consult with the ICC and request a determination as to whether article 98 applies. This consultative process is closer to article 97 of the Rome Statute which provides that states must “consult with the Court without delay” if they receive a request from the Court “in relation to which it identifies problems which may impede or prevent the execution of the request”. Although the article goes on to list what some of these problems might be, the list is clearly illustrative and not exhaustive. The obvious question is to whom might the Justice Minister consult? In terms of section 3 of the ICC Act – which contains definitions – reference to ‘the ICC’ includes any of the organs of the Court (i.e. the Prosecutor, the Registry, Chambers or the Presidency). The request for “a determination” aspect however is closer to the procedure under article 98. Presuming this is the procedure that the Ugandan legislators where referring to then requests for a determination under section 24(6) of the ICC Act will be directed to the Court who will then make a determination on its applicability in the circumstances. Finally, unlike Kenya, Uganda chose to exclude extradition to “other States” from this procedure.

African Study Group on International Criminal Law

Over the past few days I had the privilege of taking part in the inaugural meeting of the African Expert Study Group on International Criminal Law, established with the support of the Konrad Adenauer Stiftung foundation. The Group is inspired by a similar initiative made up of South American academics, which has been running for a number of years now. The meeting was attended by academics and practitioners from Kenya, Rwanda, DRC, Nigeria, Sierra Leone, South Africa and Zimbabwe, as well as Prof Kai Ambos who is involved in the South American Group. Each participant presented a paper under the broad theme of 'The Implementation of the Rome Statute', which will be refined and published in a book. A very big thank you to the organizers and my fellow participants for a rich and engaging few days and I look forward to future meetings of the Group.

Libya: Essential that ICC member states not lend support to Gaddafi evading justice

As reports roll in of rebels successfully advancing into Tripoli, a key question is the whereabouts of Libya’s Brother Leader, Colonel Muammar Gaddafi. On 27 June, the International Criminal Court (ICC) issued arrest warrants for Gaddafi, his son and de facto Prime Minister Saif al-Islam, and military intelligence chief Abdallah al-Senussi for alleged crimes against humanity, including murder and persecution of people in opposition to Gaddafi’s 42-year rule. Because the ICC does not have its own police force, whether Gaddafi will see a courtroom in The Hague depends firstly on Libyans (to the extent that they can get their hands on him). It also depends a great deal on states parties to the ICC, who are duty-bound to assist the Court in ensuring Gaddafi’s capture and surrender to the ICC for trial.



There have been alarming reports suggesting that Gaddafi may travel to Angola or Zimbabwe, apparently with the assistance of South Africa, where he could be granted political exile and evade justice – neither Angola nor Zimbabwe are parties to the Court.



Following rumours that South Africa had sent aeroplanes to Libya to assist in transferring Gaddafi out of Libya to a “safe” destination, the South African Department of International Relations and Co-operation (DIRCO) announced on Monday that it will not offer asylum to Colonel Gaddafi and/or assist in his transfer. The announcement made by DIRCO should be welcomed. Itdemonstrates the commitment expected of all states that voluntarily assumedobligations under the ICC Statute.



That commitment to the ICC specifically, and international criminal justice in general, is expected in four ways. Firstly, as member states of the ICC Statute, South Africa and the other 31 African states parties have a duty to cooperate with the ICC. This includes a negative obligation not to assist anyone who is the subject of an ICC arrest warrant to evade justice. Secondly, South Africa, is not only a state party to the ICC Statute, its Parliament has enacted legislation, which gives domestic effect to its cooperative obligations with the ICC. Obviously this means that South Africa – like all other states parties – may not formally or informally provide assistance to Gaddafi to evade trial. Thirdly, South African officials and/or nationals who make themselves complicit in Gaddafi’s evasion of justice would place themselves at risk of being responsible under both South African law and international criminal law as accessories after the fact to the crimes thatGaddafi is alleged to have committed. To allow a wanted criminal to hide in your back garden, or to assist his escape to a friendly neighbour, makes you guilty by association. Lastly, as the UN Secretary General has confirmed, the question of Gaddafi’s future is centrally in the hands of the Libyan people. To assist Gaddafi’s exile from justice would be an unacceptable form of foreign intervention that directly undermines the will of the Libyan people to deal with Gaddafi in collaboration with the ICC.



 For these reasons, if there ever was any substance to the stories about South African intentions to assist Gaddafi, DIRCO’s public denunciation of the rumours confirms a careful consideration by South Africa of its own position under law. The denunciation has averted the need for civil society organisations to approach a High Court urgently for appropriate relief compelling the South African government to keep to its obligations. And the denunciation is of enormous international significance – as the world watches, with bated breath, to learn whether a man that has butchered his own people will face or evade justice.





Max du Plessis is a Senior Research Fellow for the International Crime in Africa Programme (ISS) and Professor of Law at the University of Kwa-Zulu Natal



Ottilia Anna Maunganidze is a Researcher for the International Crime in Africa Programme (ISS)