The Crime against Humanity of Apartheid in a Post-Apartheid World

Abstract

The crime against humanity of apartheid has been widely neglected: jurisprudence is non-existent and the academic discourse modest. The International Criminal Court (ICC) is the first international criminal tribunal to include the crime against humanity of apartheid in its statute, notwithstanding the controversy of this crime. According to critics the crime is a South African phenomenon that has not reached the status of customary law. The provision on apartheid in the Rome Statute of the ICC builds on the Apartheid Convention, which is highly contentious and not signed by any Western State. All the more, it is surprising that apartheid was included in the Statute. Despite the fact that the crime of apartheid has never been prosecuted, this article argues that its inclusion into the Rome Statute raises some unique and interesting questions. It shows the international community’s belief in the deterrent effect of this crime, as well as its continued importance. This article will scrutinise the elements of the crime and reveal definitional challenges. It will, in particular, discuss potential contemporary situations of apartheid. The ICC Prosecutor will have to release apartheid from its historical connection in order to bring to justice perpetrators of systematic racial oppression.