- Procedural History
||By John Dugard
||Professor of International Law
||Department of Public Law, Faculty of Law, Leiden University
The Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter Apartheid Convention) has it roots in the opposition of the United Nations to the discriminatory racial policies of the South African Government – known as apartheid – which lasted from 1948 to 1990. Apartheid was annually condemned by the General Assembly as contrary to Articles 55 and 56 of the Charter of the United Nations from 1952 until 1990; and was regularly condemned by the Security Council after 1960. In 1966, the General Assembly labelled apartheid as a crime against humanity (resolution 2202 A (XXI) of 16 December 1966) and in 1984 the Security Council endorsed this determination (resolution 556 (1984) of 23 October 1984). The Apartheid Convention was the ultimate step in the condemnation of apartheid as it not only declared that apartheid was unlawful because it violated the Charter of the United Nations, but in addition it declared apartheid to be criminal. The Apartheid Convention was adopted by the General Assembly on 30 November 1973, by 91 votes in favour, four against (Portugal, South Africa, the United Kingdom and the United States) and 26 abstentions. It came into force on 18 July 1976. As of August 2008, it has been ratified by 107 States.
When the Apartheid Convention was being drafted in the Third Committee of the General Assembly there was a division of opinion over the scope of the Convention. Most delegates saw the Convention as an instrument to be employed only against South Africa. Others, however, warned that the Convention was wide enough to cover other States that practised racial discrimination (Twenty-eighth session of the General Assembly, Summary record of the 2004th meeting of the Third Committee, held on 23 October 1973, (A/C.3/SR.2004), paragraph 4)).
The Apartheid Convention declares 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” are international crimes (art. 1). Article 2 defines the crime of apartheid –“which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa” – as covering “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”. It then lists the acts that fall within the ambit of the crime. These include murder, torture, inhuman treatment and arbitrary arrest of members of a racial group; deliberate imposition on a racial group of living conditions calculated to cause its physical destruction; legislative measures that discriminate in the political, social, economic and cultural fields; measures that divide the population along racial lines by the creation of separate residential areas for racial groups; the prohibition of interracial marriages; and the persecution of persons opposed to apartheid.
International criminal responsibility is to apply to individuals, members of organizations and representatives of the State who commit, incite or conspire to commit the crime of apartheid (art. 3).
Although consideration was given in 1980 to the establishment of a special international criminal court to try persons for the crime of apartheid (E/CN.4/1426 (1981)), no such court was established. Instead it was left to States to enact legislation to enable them to prosecute apartheid criminals on the basis of a form of universal jurisdiction. The Apartheid Convention allows State parties to prosecute non-nationals for a crime committed in the territory of a non-State party where the accused is physically within the jurisdiction of a State party (arts. 4 and 5).
No one was prosecuted for the crime of apartheid while apartheid lasted in South Africa. And no one has since been prosecuted for the crime. Apartheid was abandoned in 1990 by the regime that had introduced it and in 1994 a democratic South Africa came into being as a result of a peaceful negotiated settlement between the apartheid regime and movements opposed to apartheid. Consequently, there were no prosecutions of the leaders or agents of the apartheid regime for crimes of apartheid. Instead a Truth and Reconciliation Commission was established with the tasks of achieving reconciliation and supervising the granting of amnesty to those who had committed serious violations of human rights during the apartheid years. Significantly, post-apartheid South Africa has not become a party to the Apartheid Convention.
That the Apartheid Convention is intended to apply to situations other than South Africa is confirmed by its endorsement in a wider context in instruments adopted before and after the fall of apartheid. In 1977, Additional Protocol I of the Geneva Conventions of 1949 recognized apartheid as a “grave breach” of the Protocol (art. 85, paragraph 4 (c)) without any geographical limitation. Apartheid features as a crime in the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission on first reading in 1991 without any reference to South Africa and in 1996 the Draft Code adopted on second reading recognized institutionalized racial discrimination as species of crime against humanity in article 18 (f) and explained in its commentary that this “is in fact the crime of apartheid under a more general denomination”(Report of the International Law Commission on the work of its forty-eighth session (A/51/10), p. 49). In 1998, the Rome Statute of the International Criminal Court included the “crime of apartheid” as a form of crime against humanity (art. 7). It may be concluded that the Apartheid Convention is dead as far as the original cause for its creation – apartheid in South Africa – is concerned, but that it lives on as a species of the crime against humanity, under both customary international law and the Rome Statute of the International Criminal Court.
A. Legal Instruments
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, United Nations, Treaty Series, vol. 1125, p. 3.
Rome Statute of the International Criminal Court, Rome, 17 July 1998, United Nations, Treaty Series, vol. 2187, p. 3.
Study on ways and means of insuring the implementation of international instruments such as the Convention on the Suppression and Punishment of the Crime of Apartheid, including the establishment of international jurisdiction envisaged by the Convention, 19 January 1981 (E/CN.4/1426).
Third Committee of the General Assembly, Summary record of meeting No. 2004, held on 23 October 1973, (A/C.3/SR.2004), paragraph 4.
Report of the International Law Commission on the work of its forty-third session, 29 April - 19 July 1991 (A/46/10).
Promotion of National Unity and Reconciliation Act, No. 34 of 1995, establishing the Truth and Reconciliation Commission in South Africa.
Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996 (A/51/10).
M.C. Bassiouni & D. Derby, “Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments”, Hofstra Law Review, vol. 9, 1981, p. 523.
H. Booysen, “Convention on the Crime of Apartheid”, South African Yearbook of International Law, vol. 2, 1976, p. 56.
R.S. Clark, “The Crime of Apartheid” in International Criminal Law (ed. M.C. Bassiouni) vol. 1 (Crimes), Dobbs Ferry, N.Y., Transnational Press, 1986, p. 299.
J. Dugard, “L’Apartheid” in Droit International Pénal (eds. H. Ascensio, E. Decaux & A. Pellet), Paris, A. Pedone, 2000, p. 349.
At the twenty-sixth session of the General Assembly, during the discussion of the item entitled “International Year for Action to Combat Racism and racial discrimination”, Guinea and the Union of Soviet Socialist Republics (USSR) submitted a draft convention on the suppression and punishment of the crime of apartheid (A/C.3/L.1871) to the Assembly’s Third (Social, Humanitarian and Cultural) Committee, on 5 November 1971. Following the debate in the Third Committee (A/C.3/SR.1859-1863), the General Assembly, by resolution 2786 (XXVI) of 6 December 1971, invited the Secretary-General to transmit the draft convention, together with the relevant records of the debate, to the Commission on Human Rights. It also recommended that the Commission and the Economic and Social Council should consider this item as a matter of priority, in cooperation with the Special Committee of Apartheid (which had been established by resolution 1761 (XVII) of the General Assembly on 6 November 1962 to keep racial policies of the Government of South Africa under review when the Assembly is not in session).
The Economic and Social Council decided, on 6 January 1972, to transmit the above-mentioned resolution of the General Assembly to the Commission on Human Rights. The Commission considered the item at its twenty-eighth session, during the same year, and, following a discussion on different draft resolutions proposed by Member States, adopted resolution 4 (XXVIII) on 23 March 1972, by which it requested the Secretary-General to circulate inter alia the text of the draft convention to Governments for their views, invited the Special Committee on Apartheid to consider the draft and requested the Economic and Social Council to invite the General Assembly to give priority to the question of the adoption of an international instrument on the topic at its following session. The Economic and Social Council, by resolution 1696 (LII) of 2 June 1972, requested the General Assembly to consider this question.
At the twenty-seventh session, in 1972, the item was again referred to the Third Committee of the General Assembly for consideration. On 24 October 1972, a revised draft convention was submitted to the Third Committee by Guinea, Nigeria and the USSR (A/C.3/L.1942/Rev.1). Following the discussion at the Third Committee, the General Assembly adopted resolution 2922 (XXVII) of 15 November 1972, by which it requested the Secretary-General to transmit to the Special Committee on Apartheid and to States the revised draft convention submitted by Guinea, Nigeria and the USSR, and the amendments thereto submitted by Egypt, as reproduced in the report of the Third Committee (A/8880, paras. 42 and 43) for their comments and views. It also invited the Economic and Social Council to ask the Commission on Human Rights to consider at its following session, as a matter of priority, the revised version of the draft convention.
On 10 January 1973, the Economic and Social Council decided to transmit the Assembly’s request to the Commission on Human Rights, asking it to submit the results of its consideration to the Assembly.
The Commission on Human Rights examined the revised draft convention, together with amendments thereto and comments received from 29 Governments (A/8768 and Add.1; E/CN.4/1123 and Add.1-6), at its twenty-ninth session in February-April 1973. After a debate held from 5 to 7 March of the same year, the Commission agreed to set up a working group composed of Bulgaria, Chile, Ecuador, Egypt, India, the Philippines, Senegal, the USSR and Zaire to consider the revised draft convention. On 2 April 1973, having heard the report of the working group (E/CN.4/L.1252), the Commission adopted resolution 16 (XXIX), by which it approved a preamble and the articles, excluding article VIII, of the draft convention and recommended that the Economic and Social Council also approve it and, in turn, recommend its approval by the General Assembly.
On 10 May 1973, the Economic and Social Council’s Social Committee approved the draft resolution and recommended the Council to approve it as well. The Council did so on 18 May 1973, by resolution 1784 (LIV), in which it recommended that the General Assembly approve the draft text proposed by the Commission on Human Rights at its following session.
Pursuant to the General Assembly’s request contained in resolution 2922 (XXVII), the Special Committee on Apartheid gave its comments on the draft convention on the suppression and punishment of the crime of apartheid in its annual report submitted to the Assembly (A/9022, p. 27).
At the twenty-eighth session of the General Assembly, the item “Draft Convention on the Suppression and Punishment of the Crime of Apartheid” was allocated to the Third Committee, which considered it from 22 to 26 October 1973. The Committee approved the draft convention as a whole on 26 October 1973 (A/9095 and Add.1) and submitted a report to the General Assembly (A/9233 and Adds.1 to 3) by which it recommended to the Assembly a draft resolution, to which was annexed the draft international convention.
As recommended by the Third Committee, on 30 November 1973, the General Assembly adopted, by a vote of 91 to 4, with 26 abstentions, resolution 3068 (XXVIII), by which it adopted and opened for signature the International Convention on the Suppression and Punishment of the Crime of Apartheid, the text of which was annexed to the resolution. The Convention entered into force, in accordance with its article XV, on 18 July 1976, following the deposit of the twentieth instrument of ratification.
Text of the Convention
Selected preparatory documents
(in chronological order)
Guinea and Union of Soviet Socialist Republics: Draft of a convention on the suppression and punishment of the crime of apartheid (A/C.3/L.1871, 5 November 1971)
General Assembly resolution 1761 (XVII) of 6 November 1962 (The policies of apartheid of the Government of the Republic of South Africa)
General Assembly resolution 2786 (XXXVI) of 6 January 1972 (Draft convention on the suppression and punishment of the crime of apartheid)
Nigeria, Pakistan and United Republic of Tanzania: Draft resolution relating to a separate Protocol on the Suppression and Punishment of the Crime of Apartheid, to be annexed to the International Convention on the Elimination of All Forms of Racial Discrimination (E/CN.4/L.1189, 14 March 1972)
Nigeria and the Union of Soviet Socialist Republics: Revised draft resolution (E/CN.4/L.1193/Rev.1, 23 March 1972)
Commission on Human Rights resolution 4 (XXVIII) of 23 March 1972 (Draft convention on the suppression and punishment of the crime of apartheid)
Economic and Social Council resolution 1696 (LII) of 2 June 1972 (Draft convention and draft protocol on the suppression and punishment of the crime of apartheid)
Guinea, Nigeria and Union of Soviet Socialist Republics: Revised draft Convention the suppression and punishment of the crime of apartheid (A/C.3/L.1942/Rev.1, 24 October 1972)
Report of the Third Committee to the General Assembly (A/8880, 13 November 1972)
General Assembly resolution 2922 (XXVII) of 15 November 1972 (Draft convention on the suppression and punishment of the crime of apartheid)
Note by the Secretary-General, “Elimination of all forms of racial discrimination. Draft convention on the suppression and punishment of the crime of apartheid” (A/8768, 14 September 1972)
Report of the Working Group of the Commission on Human Rights on the draft convention on the suppression and punishment of the crime of apartheid (E/CN.4/L.1252, 28 March 1973)
Bulgaria, the Byelorussian Soviet Socialist Republic, Chile, India, Mauritius, Nigeria, Philippines, Romania, Senegal, the Union of Soviet Socialist Republics, the United Republic of Tanzania, Zaire: Draft resolution (E/CN.4/L.1259, 30 March 1973)
Commission on Human Rights resolution 16 (XXIX) of 2 April 1973 (Draft convention on the suppression and punishment of the crime of apartheid)
Economic and Social Council resolution 1784 (LIV) of 18 May 1973 (Draft convention on the suppression and punishment of the crime of apartheid)
Report of the Special Committee on Apartheid (A/9022, 2 October 1973)
Note by the Secretary-General, “Elimination of all forms of racial discrimination. Draft convention on the suppression and punishment of the crime of apartheid” (A/9095 and Add.1, 26 October 1973)
Report of the Third Committee to the General Assembly (A/9233 and Adds.1 to 3, 10 November 1973)
General Assembly resolution 3068 (XXVIII) of 30 November 1973 (International Convention on the Suppression and Punishment of the Crime of Apartheid)
The Convention entered into force on 18 July 1976. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see:
The Status of Multilateral Treaties Deposited with the Secretary-General