Manual The Problem of Apartheid in South Africa 1945 - 1995. Fifty Years of Oppression

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  1. Nadine Gordimer and the South African Experience -
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It deals with policy formulation and backroom bargaining and uses trade union jargon, local language transposed into English, settler ironies, and nationalist slogans. It is a Henry Jamesian enterprise where society and marriage, politics and landscapes, mix without obscuring the pattern. The Conservationist , which won the Booker Prize for , evokes the sterility of the white community. Mehring, the Afrikaner antihero whose farm is as barren as his life, conserves both nature and the apartheid system, the one to keep the other at bay. In his moral vacuum, Mehring sees Africa returning to the possession of the blacks.

Using Zulu creation myths, she looks in a new way at nature in South Africa, leaving her white predecessors in art and literature behind. The Conservationist is a novel of ironies. Mehring is not a male chauvinist Boer; he is tolerant but no liberal, a financier using his farm as a tax-deductible expense. His leftist mistress travels round the world on his money. He likes to be seen as a country gentleman, but sexually he is a colonialist as we see when he picks up a coloured girl and takes her to an old mine property, only to be surprised by the mine guards. He identifies with the nameless black man under the reeds, burying him in a coffin.

Yet the corpse haunting Mehring and his house a symbol of South Africa is the claim on Africa by those who possess no land at all. Its minute details and documentary precision form an intricate web of meanings where each stone, egg, and piece of marble carry symbolic implications. She avoids explanations and leaves the reader free to interpret. Gordimer never claimed to portray him — although his daughter recognised their lives — but to convey the hidden truth behind a public person.

The challenge to the writer is to penetrate official lies and facades, to see beyond and behind, with an intuition and insight unhampered by social conventions or family discretion. In the latter, Gordimer catches both the unexpected moment when the revolutionary spark ignites and the daily routine when internal dissension rocks the upper reaches of the anti-apartheid movement.

About to enter a political collective struggle, he is caught between one state and another to come; he is himself the transition. Through him, and others, Gordimer enters into a dialogue with the future, with the absent forces that are to rule our lives in years ahead.

Nadine Gordimer and the South African Experience -

Gordimer reveals situations when reality suddenly takes another course and we are caught in our roles and expectations, in the traps of skin colour, class, family, and the body itself. She is drawn to those who try to escape from the trap: What makes the suburban housewife become an underground agent, the lawyer to sacrifice his life for a future not his, the young architect to hide a black freedom fighter? How do faithfulness and betrayal interact in an erotic and political context? Instead there was the free election of , the country narrowly drawing back from the brink of civil war.

Having stayed with Nadine Gordimer and her husband for several weeks at that time, I remember the joy, the laughter, and the hunger to see all and hear all of the miracles around us. Like A Guest of Honour , it is novel as history. Hillela is a despised daughter who enters palaces and presidencies through her political and sexual alliances. She marries an unscrupulous West African politician who becomes president of an African country and so attends the installation of the first South African black president a thinly disguised Nelson Mandela.

The finale is a vision of the future, but the focus is on Hillela as an honoured guest of a country where she was once a rebellious little white nobody. Gordimer took political and literary risks in this brutal fairy-tale of the dreadful year , but she was right in predicting that liberation was only a few years away. Behind the most intimate relations, as well as the most public, there is the same search for an identity, a self-confirmation, and a wish to belong and exist.

For Gordimer, the novel and the short story are instruments to penetrate a society that defends itself against scrutiny, hides in censorship and hypocrisy, refuses to recognise its history, and thus produces a grammar of lies where capitalism, liberalism, and Marxism mean the same thing: an onslaught on the volk. Her characters live in the shadow of violence, threatened by unpredictable brutality. Races and classes, conventions and codes ferment in a decoction of final showdowns and a mysteriously glimmering hope of unexpected mergers and elective affinities outlined in the sands of the future.

Unsentimental and diagnostic, she reports from the heart of darkness. In a country that for so long feared new thoughts and orientations, Gordimer has scraped away the many layers of prejudice and egoism; she has dug out the fragile roots of a common fate and made us glimpse the brilliant colours of a world untainted by apartheid. A white murderer may now be defended by a black lawyer; in fact, it is this highly educated black man on whom two intelligent, well-read parents depend for the survival and sanity of their souls and for the redefinition of meaning in their lives.

Their son has killed a man he loves, out of jealousy. Natalie, the mistress who is the impetus for the murder, is self-destructive and rebels against every form of personal dependence. It is a fable of violence and the search for new forms of freedom; it is also courtroom reportage. Had not the house gun been around, as it generally is in white families, no murder would have happened.

This, in turn, evokes reflection on the fact of the general rise of violence in the world. The gun bought like any commodity in many countries — in the United States, Great Britain, France, or Japan — serves domestic violence and often falls into the hands of a child, with tragic consequences. Like The Conservationist , it stands stylistically apart from many of her other works. Who is the subject of this tragedy?

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Gordimer is not afraid to present women of extraordinary intelligence and utmost delicacy of feeling as well as their vulgar counterparts. Vera wants someone who is committed to matters she thinks are important. She finds in work a defiant independence, which earlier she has experienced in her erotic life. May, The security police begins day arrests. In practice people are often released after ninety days only to be re-detained on the same day for a further ninety-day period. The Act also allows for further declaration of unlawful organisations.

The State President can declare any organisation or group of persons which has come into existence since 7 April to be unlawful. Sections and repealed by the Internal Security Act No 74 of The United Nations Special Committee on Apartheid publishes its first Interim Report, recording with satisfaction the number of countries that have broken off diplomatic and commercial relations with South Africa, but noting with regret that nearly 20 member states still maintain these.

The British Ambassador in Pretoria and High Commissioner for the Protectorates, Sir John Maud, confirms that a distinction is made between ordinary political refugees and people who flee to the Protectorates to organize revolution. It incorporates the draft Constitution for the Transkei, as finally approved by the Transkei Territorial Authority in December Number of alleged Poqo members arrested is 3 House of Assembly, June It analyses the main causes of the riots. Robert grows up in Wentworth, a suburb 11km from the city centre of Durban. Converted from a World War 2 military transit camp, Wentworth is flanked by the industrial area of Jacobs and an oil refinery, and is reserved for Coloured people.

The Security police disclose the existence of an underground group the Yu Chi Chan, said to include people trained in Peking and Algeria for sabotage in South Africa. Harold Wolpe, a Johannesburg solicitor, and listed Communist, is arrested on the Bechuanaland border. It comes into immediate effect. The resolution is adopted by six votes to two, with ten abstentions. Yugoslavia closes its consular office in Johannesburg. The SA government reaffirms its decision not to participate in the debate arguing that discussions would be on matters it considers to fall solely within its domestic jurisdiction.

August, The Christian Institute of southern Africa, a non-racial interdenominational organisation, is founded under the directorship of Rev. South Africa is denied landing and over flying rights by the United Arab Republic as from this date. A previous attempt to arrest him on 19 July was obstructed by the local community at Rehoboth, SWA.

Conflicting accounts surround the circumstances of his arrest. He himself claims to have been abducted from Bechuanaland, where he had been travelling between Ghanzi and Lobatsi. Jassat escape from prison and leave the country. Indonesia announces the severance of diplomatic and commercial relations with South Africa, and the closure of Indonesian ports to South African vessels.

Sudan closes her sea and airports to South Africa and Portugal. Mauritius closes her sea and airports to South Africa and Portugal. He and his three companions, are returned to Ghanzi on 31 August , and the charge of sabotage is withdrawn on 11 September September, South African Airways is excluded from flying over the African continent; the only exception is Portuguese territory. Their ultimate aim is the guaranteeing of equal rights to all citizens 12 September, Chad closes its air space to South Africa and Portuguese aircraft, as well as to all other planes carrying goods or passengers to or from the two countries.

It is unanimously approved and published on 18 September Thirty-seven airports are designated as compulsory landing points twelve for Basutoland, seventeen for Bechuanaland and eight for Swaziland. The Conference is left without a quorum and adjourned on 24 September Such a journey is not seen as furthering a solution to the South African problem in accordance with the principles of the United Nations Charter.

Many of them had been arrested on the Rivonia farm. It is approved, and the following day, 11 October , passed by the General Assembly by votes to one. The General Assembly adopted resolution XVIII requesting the Government of South Africa to abandon the Rivonia Trial of Nelson Mandela and other leaders, and forthwith to grant unconditional release to all political prisoners and to all persons imprisoned, interned or subjected to other restrictions for having opposed the policy of apartheid.

The vote was to 1, with only South Africa voting against. He pleaded guilty and does not appeal against the sentence. However, on instructions from Vorster he is released on parole the following day. November, The Minister of Security announces that people have been detained under the day clause. Of these have been released, have been charged in court, 61 are due to be charged shortly, five have escaped and 51 are still being questioned.

Louw, Foreign Minister since January , announces his intention to retire. There are no political parties, the choice being between candidates supporting Chief Kaiser Matanzima and those supporting Paramount Chief Victor Polo Ndamase of the West Pondos, believed to favour multi-racialism. All adults are entitled to vote; voters comprise all Xhosa, not only in the Transkei, but throughout South Africa. Hilgard Muller, will be sworn in as Foreign Minister on 9 January In elections held earlier, opponents of Bantustan policy won a majority of the 45 elected seats.

But they were outnumbered by 64 appointed Chiefs who became members of the assembly. The Prosecutor, Dr Percy Yutar gives details of explosives to be used to commit acts of destruction, to be followed by guerrilla activity and military invasion. Chief Matanzima forms a political party with the backing of the non-elective chiefs and their supporters; Chief Poto goes into opposition as the leader of the democratically elected members. Chief Kaiser Matanzima is installed as Chief Minister.

He must therefore serve his 6 year prison sentence. South Africa signs treaty with Southern Rhodesia on the continuation of the extradition agreement of 19 November It is announced in Pretoria that Dr. Carel de Wet, M. Mkaba and Z. Khanyiga, all eastern Cape trade union leaders, are executed for killing a police informer.

African Self-Help Association is set up. This marks the beginning a phase of deep frustration for the small Black membership, as virtually all channels for the expression of anti-apartheid sentiment are closed. The students allow themselves to be co-opted into the new non-risk style of NUSAS politics, since they are unable to adequately articulate their opposition to injustice. Black Labour Act No Consolidated the laws regulating the recruiting, employment, accommodation, feeding and health conditions of black labourers.

Education Act No 2:This over-rides the South African apartheid schooling system and provides for black schooling and subsidies. He was a bus driver in the rural village of Harding, southern Natal. The Federation leadership is persecuted, arrested, or banned. Eric Sono dies in a car crash at the age of The Pretoria Sundowns soccer team is revived. Dr Verwoerd refuses to resign.

South Africa; Liberia v. South Africa the counter-memorial of South Africa has been filed. Its aims include the retention of the Transkei as an integral part of South Africa. The resolution is passed by thirty-two votes to fourteen with two abstentions. The State President will be able to confer power on the Council, to make laws for Coloureds in respect of finance, local government, education, community welfare and pensions. There is no question of television being introduced.

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They recommend that South Africa halt current trials of anti-apartheid leaders and refrain from executing persons already sentenced to death. The Minister of Defence, Dr. The United Nations Special Committee on Apartheid publishes a report recommending that the Security Council call on South Africa to refrain from executing people sentenced to death for political offences. Alexander and four others are found guilty of sabotage and are sentenced to ten years imprisonment. The judge finds that the accused participated in the activities of the National Liberation Front NLF , a continuation of the Yu Chi Chan Club, whose aims was to further violence and revolution.

South Africa signs agreement with France and a third party. Indication of recommendations. Nelson Mandela addresses court at Rivonia trial. The only vulnerable spot is oil supply. Vorster , serves Albert Luthuli with yet another five-year ban confining him to his home in Groutville. President Kayibanda of Rwanda says the people and government condemn apartheid but think a realistic view should be taken of the probable effects of economic sanctions. The Bantu Laws Amendment Bill passes its third reading, giving the Minister of Bantu Administration the powers to declare prescribed areas in which the number of Africans to be employed could be determined; to override local authorities in African affairs and to redirect redundant labour to African Reserves.

This comprehensive piece of apartheid legislation is an essential component of the overall plan for separate development. The Republic of South Africa will continue to assist the Transkei and will train its successors in office. The Commission recommends the setting up of a press council to control newspapers and correspondents. The inquiry is to be held in secret. The UNO Security Council - in resolution - urges the South African Government to end the Rivonia Trial and grant an amnesty to all persons imprisoned or restricted for having opposed the policy of apartheid.

The central figure in the trial is Nelson Mandela who argues that he was driven to acts of sabotage by the frustration of all legitimate means of political protest. His argument is rejected by the Judge. The State has not charged the accused with High Treason, and Mr Justice de Wet accordingly decides not to impose the supreme penalty. Nelson Mandela and other accused, except Rusty Bernstein, are sentenced to life imprisonment at the Rivonia Trial. At the Rand Criminal Sessions three Africans are imprisoned for twelve years and one for eight years on a charge of sabotage.

The petition was signed by 91, persons in 28 countries. The World Campaign informed the Secretary-General that the demand for the release of South African political prisoners has been supported by organisations with a membership of over million. Parliament ends its session after days and the passing of bills. Sobukwe was thus imprisoned until This clause was re-enacted in amended form in July, The police make many arrests throughout the country under the provisions of the General Laws Amendment Act.

Mahomed Suliman Bhana, who had been active in the TIYC and is outspoken against apartheid policies, is served a banning order restricting him from attending any political or social gatherings, from entering any location and from leaving the Magisterial District of Johannesburg. Frederick John Harris is later tried and sentenced to death for this offence.

Bomb explodes at Johannesburg station, killing a white woman. John Harris later convicted and hanged. Vorster, states at a Nationalist Party meeting that he is not prepared to lift the 90 day detention clause because of activity in five places in Africa where saboteurs are being trained for sabotage in South Africa and because of the regrouping of Communists since the Rivonia Trial. August, Winnie Mandela and Albertina Sisulu are given permission to visit Robben Island, but are forbidden to travel together as they are both banned. Jan F. Haak becomes Minister of Planning and of Mines: the three portfolios previously held by Paul Sauer are allocated to the following Ministers in addition to their existing portfolios: Lands, D.

Uys; Forestry, WA. South Africa signs a treaty with Northern Rhodesia on postal services. South Africa signs a treaty with Malawi on postal services. Landing and passage facilities have already been refused to South African aircraft. South Africa signs multilateral agreement accepting the constitution of the Universal Postal Union. The appeals of the three - V. Mini, W. Khayinga and Z. Mkaba - against their sentences, are rejected by the Supreme Court.

South Africa signs an agreement with Portugal for Mozambique providing for the extension of cooling facilities for citrus fruit. South Africa signs treaty with Portugal for Mozambique on railway matters. South Africa signs an economic agreement with Portugal. Piet Koornhof, general secretary of the Broederbond since , retains the seat for the National Party with an increased majority of nearly 1 Immediate action concerning the Simonstown Agreement has been avoided. Vorster, announces the suspension, from 11 January , of the clause in the General Law Amendment Act providing for detention for ninety days.

All detainees will have to be released or charged in court by that date. Transkeian Police Act No 5:Provides for a national policing service and the various powers vested in it. In , the SA Indian Council took over certain educational functions. Indian education was also made compulsory.

Letters are read in court enumerating the reasons for his action and making a bitter attack on government policy. A warrant of arrest is issued. Vorster, tells Parliament that 1 people have been detained under the ninety-day clause during the eighteen months imprisonment without trial, since law has been in operation. The tour will no longer be undertaken because the government has refused permission for the mission to meet Dr.

Albert Luthuli. Verwoerd ,discloses that the restriction on Seretse Khama, now Prime Minister of Bechuanaland, visiting South Africa has been lifted and friendly relations with Bechuanaland are now desired. Botha, the Commissioner appointed to inquire into the activities of secret societies - the Broederbond, the Freemasons and the Sons of England - is unable to make any finding against any of these organisations. Extensive evidence is led on behalf of South Africa. Although provincial, the campaigns are conducted on national, and particularly racial, issues.

The invitation is rejected. On 13 April they are sentenced to terms of imprisonment ranging from one to five years. It is the R Gross of the New York Bar. It is alleged that South Africa has infringed its League of Nations Mandate by applying its racial policies in the territory. Bongco and F. Harris for acts arising from their opposition to apartheid. Bills include one to establish a separate Transkei flag and one to reorganize the Regional, Tribal and Community Authorities and consolidate existing legislation.

Botha, announces in Parliament that Local Authorities must issue permits to householders who wish to have more than one servant sleeping on their premises. This is construed as a move to keep the suburbs White at night. It is designed to prevent the publication of information which would hamper or nullify the operations of the security police.

The effect is to prolong the terms of the present M. The Minister of Transport, B. Schoeman, replies that the air strip being constructed at Katimo Mulilo, is intended only for administrative purposes when roads in the Caprivi Strip are impassable. It is designed to combat the infiltration of saboteurs from other parts of Africa. This is seen as interference in the domestic affairs of South Africa. Among its provisions, this Bill empowers the Attorney General to order the Court not to give bail to defendants and to arrest and detain, for up to six months before a trial, any state witness who might be open to intimidation, or be considered likely to abscond.

The General Bar Council of South Africa criticises the Bill as a grave interference with the rule of law and the administration of justice. The Attorney-General was empowered to order the detention of persons likely to give evidence for the state in any criminal proceedings relating to certain political or common-law offences. Unlike the ninety-day provision, this did not specify interrogation as part of the detention. Detainees could be held for six months in solitary confinement and only state officials were permitted access to them.

No court had the jurisdiction to order the release of prisoners or to rule on the validity of the regulations under the Act. The police raid the editorial offices of the Rand Daily Mail in Johannesburg and confiscate documents relating to a series of articles on prison conditions written by Harold Strachan. He has already been imprisoned for three years for conspiring to cause explosions. South Africa appoints ambassadors, R. Coaton to Argentina, J.

Maree to Australia, A.

Hamilton to Spain. Nuclear power will be used for peaceful purposes only. The Minister of Mines, J. Haak, says the government has decided that the colour-bar in the mining industry should be withdrawn. He promises that European-owned farms will soon be bought by the South African government and distributed to the people.

There is a strong reaction in New Zealand to this declaration of policy. Salterwaite, due to leave South Africa on 18 November Abram Fischer, Q. The General Assembly requests the Secretary-General to establish a United Nations Trust Fund for South Africa to provide humanitarian assistance to persons persecuted under discriminatory and repressive legislation in South Africa and to their dependants.

Education Act No 9:Enacted various schooling mechanisms. Commenced: 6 January Phyllis Naidoo is banned. She is arrested for ten days for breaking her banning order. She leaves for Lesotho where she becomes a victim of a parcel bombDorothy Nyembe is released and banned for five years. She is restricted to the magisterial district of Durban Phyllis Naidoo decides to study law.

Tabata, nephew of the Tembu Chief Jongintaba Dalindyebo, dies.

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It was this latter chief to whom Henry Mandela entrusted his young son, Nelson Mandela. Regular relations will be maintained with both parties. A closer check is to be kept on political asylum figures. He pleads not guilty to all allegations. This power is applied in the case of Robert Sobukwe and his detention will be extended.

No reason is given for these restrictions despite requests. It is an autonomous South African body providing legal aid for persons accused of political offences and support for the families of political prisoners. Defence and Aid Fund is declared an unlawful organisation in South Africa. The result is a sweeping victory for the National Party, who have a majority of 82 seats over the combined opposition.

United Party members decline from 49 to 39 and the Progressive Party duly obtain one seat. Gunzana, is elected leader to succeed Paramount Chief Victor Poto who is to retire. South Africa signs agreement with Italy on the postal administration between South Africa and Italy on the exchange of money orders. South Africa signs treaty with Denmark, Norway and Sweden on the extension of the period of validity of traffic rights at Zurich in respect of South African territory granted to SAS by the agreement.

Over 30 prisoners stand to benefit. A crowd of more than sees nearly 20 troops and aircraft take part in the proceedings. He speaks at several universities, meets ex-Chief Albert Luthuli, banned leader of the ANC, but at no time does any member of the government meet him and official hostility is evident. The government sees the seminar simply as part of the political campaign waged against South Africa at the United Nations.

The Anglican Prelate was to have been one of the eight conference presidents. Of the names there are 49 that are listed both as communists and as banned. South Africa signs a parcel post agreement with the Netherlands. Thirdly, it lists the general principles of law, should both the first and second order fail. The general principles have to be consistent with the Rome Statute and international law as well as internationally recognised norms and standards Article 21 1 c.

The ICC may — but does not have to — apply principles and rules of law as interpreted in its previous decisions Article 21 2. For this analysis, the interpretation of the provisions contained in the Rome Statute are of primary importance. Although the Elements of Crimes are not strictly binding, they help clarify the different elements of each crime and as such are a tool to assist the Court in their interpretation.

One delegate at the Rome Diplomatic Conference in emphasised that the principle of legality — expressed by nullum crimen sine lege, nulla poena sine lege — results in that the elements of crimes must not be left to a later stage. State parties must be sure of the commitments that they were undertaking, see Bassiouni n 24 , fn The following analysis of the elements of the actus reus of the crime against humanity of apartheid builds on a legal interpretation of Article 7 1 j and Article 7 2 h Rome Statute.

The general, overarching requirements of crimes against humanity in the chapeau of Article 7 Rome Statute will hereafter not be analysed; instead, the focus will be on the specific requirements of the crime of apartheid. While the ordinary meaning of treaty terms is always linked with its context, it may be treated separately for analytical purposes. The following subchapters examine the different elements of the actus reus of the crime of apartheid. In so doing, the challenges — or pitfalls — of the criminal provision on apartheid will be revealed.

Each respective subchapter deals with one of these elements, these being: inhumane acts, a character similar to those referred to in paragraph 1, an institutionalised regime, systematic oppression and domination and, lastly, the racial group. Article 7 2 h Rome Statute requires that the act is of an inhumane character similar to other crimes against humanity set forth in its Article 7 1. In practice, there may be a large degree of similarity between the inhumane acts of the crime of apartheid and the other crimes listed in paragraph 1. However, such acts could also fall under the definition of the crime of persecution in Article 7 1 h Rome Statute, if they contain a discriminative intent based on the identity of a group, for example a racial group.

There is seemingly a real risk that the acts committed would be subsumed under any of the other paragraphs of Article 7 1 Rome Statute, thereby making the provision on the crime of apartheid obsolete. However, the principle of specificity, which emanates from the guiding principle of legality or nullum crimen sine lege , demands for criminal provisions to be as specific and clear as for judges to render consistent, coherent and foreseeable judgments and for perpetrators to foresee the consequences of their criminal behaviour.

Punishment may only be imposed if the criminal provision that foresees punishment for a specific behaviour is sufficiently precise. Thus, in criminal law the specificity of a provision is of paramount importance. The more specific and precise a criminal norm is, the more likely it is to be in coherence with the principle of legality.

It could therefore be argued that a detailed provision, such as Article 7 2 h Rome Statute, is more likely to adhere to the principle of legality than a generic provision such as Article 7 1 k Rome Statute. The question of whether a comprehensive provision is more likely to lead to a conviction in a criminal trial before an international tribunal is yet another, completely different and primarily pragmatic, issue.

The above-cited suggestions by legal scholars reveal the ambiguity caused by the wording of Article 7 1 Rome Statute. Indeed, the reference is unclear, since it seems to point to Article 7 1 k Rome Statute without stating this explicitly. However, Article 7 1 k Rome Statute is also a rather open provision lacking a closer definition.

There is therefore a substantial risk that a prosecutor would choose not to indict a perpetrator for the crime of apartheid because it creates an additional burden of proof. Or, instead, the prosecutor could choose to indict an alleged offender of Article 7 1 k Rome Statute, thereby limiting his burden of proof to an inhumane act. Whether this discrimination should be enforced by de jure authority eg legal decrees or simply by de facto actions is not apparent from the statutory provision in the Rome Statute; it should be ascertained that a de facto discrimination would be sufficient.

He concludes that there are no indications in the Rome Statute that would prevent a broader interpretation of the term to include a system institutionalised by an armed group in control of a certain area, thereby allowing an armed group to qualify as a regime. According to other scholars, the crime of apartheid effectively required a government policy of apartheid. According to Bultz, a non-state regime is not really institutionalised at all; instead he believes that any non-institutionalised discrimination would be covered by the crime of persecution and need not be embraced as a crime of apartheid.

An established law or practice by a government or prevailing order is most likely the closest to a definition of an institutionalised regime one gets. An institutionalised regime would indisputably exist when the oppression and the domination are anchored in domestic law, with the South African apartheid legislation as the prime example. One must, however, be cautious so as not to demand the same requirements for a contemporary apartheid situation. The threshold is created by the institutionalisation of a regime of systematic discrimination and oppression, not by a comparison to the governmental methods and legislation of the Union of South Africa.

The criterion of systematic oppression by the regime suggests that there exists some controlling and harsh treatment of the racial group. Yet, precisely this requirement of systematicity of the treatment could present considerable challenges for the prosecution to prove. The problem is created by the chapeau for all crimes against humanity in Article 7 1 Rome Statute that only disjunctively requires a systematic or widespread attack.

Article 7 2 h Rome Statute seemingly re-introduces this out-dated requirement, thereby countermanding the development of international criminal law. Some scholars suggest that they cannot be distinguished and are essentially the same. The crime of apartheid is defined as an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups. If the prosecutor cannot prove the existence of a racial group, the crime of apartheid becomes untenable.

The crime of apartheid has certain elements in common with the crime of genocide. The latter protects a racial group as one of four exclusive victim groups in the Convention on the Prevention and Punishment of the Crime of Genocide Genocide Convention and the corresponding Article 6 Rome Statute. The Apartheid Convention was, as a matter of fact, modelled after the Genocide Convention.

However, while the crime of genocide protects four distinct groups racial, ethnical, national and religious , the crime of apartheid limits its protection to the racial group only. The legal definition of the racial group therefore becomes of paramount importance. The classification of the victims as members of a racial group constitutes a legal threshold, which must be proven in order for the crime of apartheid to occur.

At that time, the common understanding of race merged the notion of nation states with sub-groups of people. However the concept of race is also burdened by an out-dated pseudo-scientific explanation dating back to times of imperialism and colonialism asserting that people can be categorised by their features and innate characteristics. Natural sciences have long reached the conclusion that there are no genetic or biological differences amongst the different races. Moreover, it has become accepted that race is the outcome of collective ascription and is typically used to refer to a group of people who are perceived as being different and possibly inferior to another group.

Thus, race is created by a specific society in order to indicate and justify differences in treatment or in position. Modern genetics tend not to speak of race for three predominant reasons: first, there has been so much interbreeding between human populations that there are no pure racial groups. Secondly, hereditary physical traits are not evenly distributed within clear boundaries. Lastly, hereditary characteristics cannot explain cultural variations. People everywhere in the world have the same inborn abilities and variations exist only on an individual level, not at a group level.

The reason for this approach is the fact that the racial group is an element of the actus reus , a threshold of the crime. Consequently, the international criminal tribunals tried to objectively define race, with rather mixed results. While international criminal law seemingly tries to avoid any confrontation with race and racial groups, socio-anthropology has extensively dealt with the issue and commonly defines race as the perception of differentness. Noticing this, legal scholars have suggested turning to anthropology in search of a legal definition of race: [A]partheid constitutes a very specific crime against humanity, based solely on racial discrimination.

According to the contemporary socio-anthropological definition of race, the only matter of importance is whether social actors treat races as real and organise their lives and exclusionary practices accordingly. Race is therefore a social construct, defined and moulded by a group, usually in response to another group.

Race is heavily influenced and ultimately created by stigmatisation and the perception of differentness. Race is thus not real, but imagined. In addition to the specific intention of maintaining an institutionalised regime of systematic oppression and domination, Article 30 Rome Statute requires that the perpetrator commits the material elements with intent and knowledge. Thus, the mens rea of the crime of apartheid demands awareness by the perpetrator of the factual circumstances, such as the nature and gravity of his or her acts, and an intention of maintaining the institutionalised regime of systematic oppression and domination over a racial group.

Of importance is that the systematic oppression and domination not only have the effect, but moreover the purpose of maintaining a regime by one racial group over another racial group. The crime of apartheid therefore demands a special intent to sustain an institutionalised system of racial discrimination, in addition to the general intent of committing the crime. However, it could be argued that any regime, once established, also has to be maintained. Furthermore, the wording suggests that replacing one regime with another is not included.

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While there are controversies as to whether the Apartheid Convention was intended for, and could be applied to, contexts other than South Africa, this discussion is no longer valid for the Rome Statute. Since Article 7 1 j in conjunction with Article 7 2 h Rome Statute removed any reference to Southern Africa, the Southern African situation can no longer be used as a conditio sine qua non to determine the existence of the crime of apartheid in other cases.

The crime of apartheid has been released from its former geographical shackles. The provisions on apartheid in the Rome Statute can therefore be applied to any situation occurring in the territory of any state party. The shadow of the South African legacy still lingers over the crime of apartheid. Yet, with the inclusion of the crime of apartheid into the Rome Statute and the removal of any reference to the Southern African case, the time has now come to put Article 7 1 j Rome Statute to the test.

South Africa history

As a matter of fact, there are a significant number of states with institutionalised regimes of systematic oppression and domination. Two cases will be briefly analysed in chapter 5, demonstrating that the provisions on apartheid could be applied by the ICC in the near future. There are three possible sources under international law, namely treaty, custom and general principles of law.

Customary law demands evidence of a subjective recognition by states of what they consider to be a binding rule of international law opinio juris as well as an objective constant and uniform state practice. International crimes are mostly created through conventions, but also through custom. The contentiousness of the Apartheid Convention and the not yet universal ratification of the Rome Statute as treaty sources containing the crime against humanity of apartheid, reveal the importance of the customary status of this crime.

The Rome Statute attempted to codify pre-existing customary or conventional law, particularly crimes that were already prohibited in codified international law, such as the crime of apartheid. Von Hebel Robinson n 36 91, ; Kittichaisaree n 4 56, According to McCormack some states displayed a selective and at times promiscuous approach to a commitment to customary norms n 36 , The crimes listed in the Rome Statute thus coincide to a large extent with customary law.

Whether or not the crime against humanity of apartheid has reached customary law status remains an issue of dispute. This chapter will attempt to demonstrate why the crime of apartheid is not only a treaty crime, but most probably also a customary crime. Not only norms proscribing racial discrimination, but also governmental practices of systematic racial discrimination are considered prohibited under customary human rights law. The customary law status of the prohibition of racial discrimination and apartheid as a case of qualified racial discrimination seems uncontested. While the customary nature of racial non-discrimination is recognised, the question remains whether the crime against humanity of apartheid is a customary norm too.

Evidence of opinio juris will often be drawn from debates in the General Assembly or from negotiation of international treaties, where the opinion of states on their legal obligations becomes apparent. The ICJ in the Advisory Opinion on Nuclear Weapons recognised that also General Assembly resolutions, even if they were not legally binding, could in certain circumstances provide evidence of an opinio juris. This statement is of particular importance for the examination of the customary nature of the crime of apartheid.

No court has ever prosecuted the crime of apartheid national or international ; no person has ever been tried for the crime of apartheid. It was apartheid that unified the international community in its struggle to bring to an end the South African regime in the midst of the Cold War era. Numerous UN resolutions condemned apartheid, an indication of its seriousness. Indeed, in the period from to , at least 14 General Assembly resolutions confirmed apartheid to be a crime against humanity.

This is in addition to a multitude of other resolutions dealing with the consequences of the South African apartheid regime. Although purely related to the Southern African context, these UN resolutions shaped the understanding of the crime of apartheid and continue to be relevant with regards to its legal definition.