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THE DEFINITION OF APARTHEID IN CUSTOMARY INTERNATIONAL LAW AND THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

Published online by Cambridge University Press:  20 October 2022

Miles Jackson*
Affiliation:
Associate Professor of Law, University of Oxford, miles.jackson@law.ox.ac.uk.

Abstract

Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.

Type
Articles
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the British Institute of International and Comparative Law

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Footnotes

I am grateful to the editors and reviewers, and to Eleni Methymaki, Marko Milanović, Tsvetelina van Benthem, Massimo Lando, Hannah Woolaver, Dapo Akande, Sophie Ryan, and Antonios Tzanakopoulos for their comments and assistance. In part, this article builds on certain arguments I made in an opinion on the relationship between the prohibition of apartheid and the law of occupation commissioned and published by Diakonia International Humanitarian Law Centre in 2021. All errors are my own.

References

1 ICERD, ‘Communication submitted to the Committee on the Elimination of All Forms of Racial Discrimination by the State of Palestine pursuant to Article 11 of the International Convention on the Elimination of all Forms of Racial Discrimination’ (23 April 2018) ICERD-ISC-2018/3.

2 ibid, para 623.

3 Al-Haq et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel's Seventeenth to Nineteenth Periodic Reports (Report, 10 November 2019).

4 Yesh Din, ‘The Israeli Occupation of the West Bank and the Crime of Apartheid: Legal Opinion’ (June 2020).

5 Human Rights Watch, ‘A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution’ (Report, 27 April 2021); Amnesty International, ‘Israel's Apartheid against Palestinians: Cruel System of Domination and Crime against Humanity’ (Report, 1 February 2022). For a critical reflection, see N Sultany, ‘The Question of Palestine as a Litmus Test: On Human Rights and Root Causes’ (2021) 23 PYIL (forthcoming).

6 Human Rights Watch, “An Open Prison without End”: Myanmar's Mass Detention of Rohingya in Rakhine State (Report, 8 October 2020) 119–36.

7 Interpretation and Application of the International Covenant on the Elimination of All Forms of Racial Discrimination (Republic of Azerbaijan v. Republic of Armenia) (Application Instituting Proceedings) 23 September 2021, para 97 <https://www.icj-cij.org/en/case/181/institution-proceedings>. See also Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Application Instituting Proceedings) 16 September 2021, para 97 <https://www.icj-cij.org/en/case/180/institution-proceedings>.

8 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD).

9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Additional Protocol I) (concluded 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.

10 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243 (Apartheid Convention) art 2.

11 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute) art 7(1)(j), 7(2)(h). The definition in the Rome Statute is reproduced in the Malabo Protocol establishing the jurisdiction of the African Court of Justice and Human Rights: see Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted 27 June 2014) (Malabo Protocol) art 28(C)(1)(j), 28(C)(2)(h).

12 That is, the focus is not on individual criminal responsibility for apartheid as prescribed in the Rome Statute.

13 Apartheid Convention (n 10) art 2(c).

14 For an overview, see J Gebhard, ‘Apartheid’ (MPEPIL 2018).

15 P Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (OUP 2016) 236.

16 ICERD (n 8) (status as of 28 May 2022).

17 For a full list, see Gebhard (n 14).

18 UNGA Res 2396 (XXXIII) (2 December 1968) UN Doc A/Res/2396, para 1. The UN General Assembly first described apartheid as ‘a crime against humanity’ in 1966: see UNGA Res 2202 (XXI) (16 December 1966) UN Doc A/Res/2202(XXI), para 1 (The General Assembly ‘[c]ondemns the policies of apartheid practised by the Government of South Africa as a crime against humanity’). Previously, the UNGA's Declaration on the Elimination of All Forms of Racial Discrimination of 1963 called for an ‘end … without delay’ to policies of racial segregation and apartheid—UNGA Res 1904 (XVIII) (20 November 1963) UN Doc A/Res/18/1904.

19 UNSC Res 282 (23 July 1970) UN Doc S/Res/282. Resolution 282 was adopted by 12 votes to 0, with three abstentions. See also UNSC Res 417 (31 October 1977) UN Doc S/Res/417, para 3(f), adopted unanimously, demanding that the ‘racist régime of South Africa … abolish the policy of bantustanization, abandon the policy of apartheid and ensure majority rule based on justice and equality’.

20 UNSC Res 473 (13 June 1980) UN Doc S/Res/473.

21 See further J Crawford and T Viles, ‘International Law on a Given Day’ in J Crawford (ed), International Law as an Open System: Selected Essays (Cameron May 2002) 69–94.

22 cf Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95, para 142.

23 ibid, paras 152–153.

24 In addition, the first part of Article 3 of ICERD—‘States Parties particularly condemn racial segregation and apartheid…’ (emphasis added)—may be understood as giving the provision a ‘fundamentally norm-creating character’, thus contributing to the formation of a customary rule: see North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3, para 72.

25 ILC, ‘Fourth Report on Peremptory Norms of General International Law (Jus Cogens) by D Tladi, Special Rapporteur’ (31 January 2019) UN Doc A/CN.4.727, para 98. The ILC's draft conclusions, adopted by the Drafting Committee on 2nd reading on 11 May 2022, includes in its annex of norms that the ILC has previously referred to as having peremptory status: ‘The prohibition of racial discrimination and apartheid’.

26 UNGA Res 2074 (XX) (17 December 1965) UN Doc A/Res/2074, para 4. See also UNGA Res 2145 (XXI) (27 October 1966) UN Doc A/Res 2145.

27 UNSC Res 282 (23 July 1970) UN Doc S/Res/282.

28 UNGA Res 2145 (XXI) (27 October 1966) UN Doc A/Res 2145; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 106.

29 See further M Longobardo, ‘Preliminary but Necessary: The Question of the Applicability of the Notion of Apartheid to Occupied Territory’ (Just Security, 2 December 2021) <https://www.justsecurity.org/79381/preliminary-but-necessary-the-question-of-the-applicability-of-the-notion-of-apartheid-to-occupied-territory/>.

30 See Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures Order) [2008] ICJ Rep 353, para 109.

31 Thornberry (n 15) 259. For a recent application, see CERD Committee, ‘Decision adopted by the Committee under article 14 of the Convention, concerning communication No. 59/2016’, Anne Nuorgam et al v. Finland, CERD/C/95/D/59/2016, paras 7–8.

32 See eg ECtHR, Al-Skeini and Others v United Kingdom, App No 55721/07 (7 July 2011).

33 See eg UNHRC, ‘General Comment 36, Article 6 (Right to Life)’ (30 October 2018) UN Doc CCPR/C/GC/36, para 63.

34 For consideration of the interaction between the prohibition of apartheid and the law of occupation, see M Jackson, ‘Expert Opinion on the Interplay between the Legal Regime Applicable to Belligerent Occupation and the Prohibition of Apartheid under International Law’ (March 2021) <https://www.diakonia.se/ihl/news/expert-opinion-occupation-palestine-apartheid/>.

35 The ICJ also did not define the term in its 1971 South West Africa Advisory Opinion, in which it found apartheid as applied by South Africa in Namibia violated the UN Charter: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 131.

36 In addition, in the Third Committee of the United Nations, where Article 3 was adopted unanimously, there is no discussion of any value on the meaning of the term: see (18 October 1965) UN Doc A/C.3/SR.1308.

37 This is clearly evident in not only the UN resolutions, but also the drafting history of the 1963 Declaration, ICERD, and the Apartheid Convention: see eg UNGA, Official Records of the Eighteenth Session, 1261st Meeting (20 November 1963). For an assessment of racial policies prior to the Union of South Africa in 1910, see B Magubane, The Making of a Racial State: British Imperialism and the Union of South Africa 1875–1910 (Africa World Press 1996).

38 ‘Report of the Special Committee on the Policies of Apartheid of the Government of the Republic of South Africa’ (16 September 1963) UN Doc A/5497, para 436. The Special Committee was established by UNGA Res 1761 (XVII) (6 November 1962) A/Res/1761.

39 Report of the Special Committee (n 38) paras 441–459.

40 J Dugard, ‘Introductory Note: Convention on the Suppression and Punishment of the Crime of Apartheid’ (UNALIL 2008) <https://legal.un.org/avl/ha/cspca/cspca.html>.

41 cf Convention on the Prevention and Punishment of the Crime of Genocide (entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art 2(c).

42 Apartheid Convention, (n 10) art 2(a)–(f).

43 cf Additional Protocol I (n 9) art 51; Rome Statute (n 11) art 8(2)(b)(iv).

44 See, for instance, in relation to the crime of aggression, Understanding No. 4, ‘Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression’, Annex III to Resolution (31 May–11 June 2010) RC/Res.6; see further ILA, ‘Final Report on Aggression and the Use of Force’ (2018). For a wider discussion, see R O'Keefe, International Criminal Law (OUP 2015) 47–83.

45 Apartheid Convention (n 10) (status as of 28 May 2022). On the non-ratification by Western States, see Eden, P, ‘The Role of the Rome Statute in the Criminalization of Apartheid’ (2014) 12 JICJ 171, 179Google Scholar; Gebhard (n 14) para 26.

46 See also Apartheid Convention (n 10) arts 6, 7.

47 See eg UNGA Third Committee, Summary Records of the 2004th Meeting (23 October 1973) UN Doc A/C.3/SR.2004, para 7 (where the representative of Romania stated that ‘[i]n the light of the references to apartheid in the United Nations instruments and resolutions mentioned in the preamble to the draft Convention, it could be said that apartheid was already regarded in international law as constituting a crime against humanity. The purpose of the draft Convention was to reflect that development in international law and embody it in a legal instrument. In that context, article II determined in a comprehensive and precise way the acts which constituted the crime of apartheid’). See also UNGA Third Committee, Summary Records of the 2005th meeting (24 October 1973) UN Doc A/C.3/SR.2005, para 25 (representative of Mongolia describing the Convention as a ‘logical follow up to the instruments and resolutions adopted by the United Nations during the previous 20 years’); UNGA Third Committee, Summary Records of the 2006th meeting (25 October 1973) UN Doc A/C.3/SR.2006, para 12 (representative of the Ukrainian Soviet Socialist Republic noting that ‘[a]partheid had always been regarded as a crime against humanity’ and that ‘[t]he purpose of the draft Convention was to define that crime precisely and provide for its punishment’), para 24 (representative of the Byelorussian Soviet Socialist Republic noting that ‘[u]nder the draft Convention, apartheid was viewed as a crime which violated existing norms of international law and the fundamental principles and purposes of the United Nations’ and that ‘article II … for the first time in international law gave a definition of the policy and practice of apartheid’).

48 (19 November 1973) UN Doc A/9233/Add.1. The Convention itself was adopted by 91 votes to four, with 26 abstentions—see Dugard (n 40). In 1973, there were 135 members of the United Nations.

49 Those States that subsequently made statements explaining their decision to abstain mainly cited concerns of the desirability and feasibility of establishing universal jurisdiction in their domestic laws for apartheid ‘so broadly defined’: see eg UNGA Third Committee, Summary Records of the 2008th meeting (26 October 1973) UN Doc A/C.3/SR.2008, paras 10–11 (Spain), 14 (Canada), 23 (Japan), 30 (Italy), 37 (New Zealand), and 44 (Costa Rica), although cf para 19 (United Kingdom).

50 ILC, ‘Draft conclusions on identification of customary international law, with commentaries’ (2018) II(2) YILC Conclusion 8.

51 UNGA Third Committee, ‘Guinea and Union of Soviet Socialist Republics: draft of a Convention on the suppression and punishment of the crime of apartheid’ (28 October 1971) UN Doc A/C.3/L.1871.

52 UNGA Third Committee, ‘Guinea, Nigeria and the Union of Soviet Socialist Republics: revised draft Convention on the suppression and punishment of the crime of apartheid’ (24 October 1972) UN Doc A/C.3/L.1942/Rev.1.

53 UNGA Third Committee, ‘Draft Convention on the Suppression and Punishment of the Crime of Apartheid’ (19 November 1973) UN Doc A/9233/Add.1, preambular para 4. This recital was adopted without opposition.

54 ICERD (n 8) preambular para 4.

55 Statements by States in the Third Committee can also be read as confirming this interpretation. See eg UNGA Third Committee, Summary Records of the 2004th meeting (23 October 1973) UN Doc A/C.3/SR.2004, paras 7 (Romania), 25 (Mongolia), 26 (Algeria); UNGA Third Committee, Summary Records of the 2006th meeting (25 October 1973) UN Doc A/C.3/SR.2006, paras 12 (Ukrainian Soviet Socialist Republic), 20 (USSR), 24 (Byelorussian Soviet Socialist Republic), cf para 19 (United Kingdom rejecting ‘the basic assumption of the draft Convention, namely, that apartheid was a crime against humanity’).

56 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) arts 31(3)(b), 32.

57 ILC, ‘Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries’ (2018) II(2) YILC (Draft Conclusions) Conclusion 4(2).

58 ibid Conclusion 4(3).

59 ibid Commentary to Conclusion 4, para 35.

60 ibid Commentary to Conclusion 4, para 16 (emphasis added).

61 VCLT (n 56) art 31(3)(b). To be clear, it is not that practice of all the parties is required, but rather that agreement of those parties is required. See, in relation to silence constituting acceptance, Conclusion 10.

62 UNGA Third Committee, Summary Records of the 2008th meeting (26 October 1973) UN Doc A/C.3/SR.2008, 165 para 17.

63 Dugard (n 40). The United Kingdom ratified ICERD on 7 March 1969. See also UNGA Third Committee, Summary Records of the 2006th meeting (26 October 1973) UN Doc A/C.3/SR.2007, para 51 (United States); UNGA Third Committee, Summary Records of the 2008th meeting (26 October 1973) UN Doc A/C.3/SR.2008, paras 10–11 (Spain), 19 (United Kingdom), 37 (New Zealand).

64 VCLT (n 56) art 32. For a reflection on the distinction between art 31(3)(b) and art 32 VCLT (and, more widely, between sources of law and interpretation), see J D'Aspremont, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation’ (2016) 27 EJIL 1027.

65 The Report of the Third Committee does not record the identity of the three States voting against the definition.

66 See Draft Conclusions (n 57) Conclusion 9(3).

67 Thornberry (n 15) 260.

68 ibid 257.

69 See eg CERD, ‘Consideration of reports submitted by States parties under article 9 of the Convention’ (9 March 2012) UN Doc CERD/C/ISR/CO/14-16, para 24; CERD, ‘Concluding observations on the combined seventeenth to nineteenth reports of Israel’ (27 January 2020) UN Doc CERD/C/ISR/CO/17-19, para 23.

70 CERD, ‘Concluding observations on the combined seventeenth to nineteenth reports of Israel’ (27 January 2020) UN Doc CERD/C/ISR/17-19, para 54.

71 See eg CERD, ‘Reports submitted by States Parties under Article 9 of the Convention, Bulgaria’ (5 August 1996) UN Doc CERD/C/299/Add.7, paras 25–28; CERD, ‘Reports submitted by States Parties under Article 9 of the Convention, Cuba’ (30 January 2010) UN Doc CERD/C/CUB/14-18, paras 106–110. States also regularly refer in their periodic reports to the fact of being a party to the Apartheid Convention as evidence of their compliance with Article 3: see eg CERD, ‘Consideration of reports submitted by States Parties under Article 9 of the Convention, Argentina’ (23 January 1997) UN Doc CERD/C/299/Add.11, para 36; CERD, ‘Reports submitted by States Parties under Article 9 of the Convention’ (6 November 2012) UN Doc CERD/C/BFA/12-19, para 43.

72 CERD, Communication No 46/2009, Mahali Dawas and Yousef Shava (2 April 2012) para 6.2.

73 ICERD Communication by the State of Palestine (n 1).

74 ibid, para 586. See also para 593 (referring to ‘Art. 2 of the Apartheid Convention as a primary interpretative tool for the content of the international legal definition of apartheid’).

75 These are (a) murder, (b) extermination, (c) enslavement, (d) deportation or forcible transfer, (e) imprisonment, (f), torture, (g) forms of sexual violence, (h) persecution, (i) enforced disappearance, … and (k) ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.

76 Rome Statute (n 11) art 7(2)(h).

77 For discussion of other differences, see L Van den Herik and R Braga da Silva, ‘Article 7 – Crimes against Humanity – Apartheid’ in K Ambos (ed), Rome Statute of the International Criminal Court (4th edn, Beck/Hart/Nomos 2022).

78 That is, if the relevant purpose exists, responsibility arises with the imposition of the first set of repressive measures.

79 Jackson (n 34) para 25.

80 For a detailed account, see Eden (n 45). Eden notes in summary that ‘[t]he sub-group of delegates that worked on the consensus language did not consider themselves bound by the definition in the Apartheid Convention’: ibid 97.

81 Draft Conclusions (n 57) Draft Conclusion 4.

82 See generally Draft Conclusions (n 57).

83 O'Keefe (n 44) 79–81. See relatedly Additional Protocol I (n 9) art 51 and Rome Statute (n 11) art 8(2)(b)(iv)—the respective rules on proportionality in attack.

84 Opened for signature 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.

85 Opened for signature 19 December 1966, entered into force 3 January 1976) 993 UNTS 3.

86 Apartheid Convention (n 10) art 2(a).

87 UNHRC, ‘General Comment 35, Article 9 (Liberty and Security of Person)’ (16 December 2014) UN Doc CCPR/C/GC/35.

88 Apartheid Convention (n 10) art 2(e).

89 See Joseph, S and Castan, M, International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013) 329–34Google Scholar.

90 Convention concerning Forced or Compulsory Labour (adopted 28 June 1930, entered into force 1 May 1932); Convention (No. 105) concerning the abolition of forced labour (adopted 25 June 1957, entered into force 17 January 1959) 320 UNTS 291.

91 Apartheid Convention (n 10) art 2(c).

92 It is worth noting the mental element in Article 2(c) itself—‘calculated to prevent a racial group…’, which overlaps with the purpose requirement in the chapeau.

93 On the relationship between apartheid and self-determination, see Sultany (n 5).

94 In the South African case, for example, the Prohibition of Mixed Marriages Act (1949) and the Group Areas Act (1950).

95 As discussed in the next subsection, absent direct evidence of such a goal it is likely that the wrongful purpose will need to be inferred from, inter alia, the systematicity of the underlying acts.

96 Rome Statute (n 11) art 8(2)(h). See J Kern, ‘Uncomfortable truths: how HRW errs in its definition of “Israeli apartheid”, what is missing, and what are the implications?’ (EJIL:Talk!, 7 July 2021) <https://www.ejiltalk.org/uncomfortable-truths-how-hrw-errs-in-its-definition-of-israeli-apartheid-what-is-missing-and-what-are-the-implications/>.

97 Apartheid Convention (n 10) art 2.

98 See also Ambos, K, Treatise on International Criminal Law: Volume I: Foundations and General Part (2nd edn, OUP 2020) 396Google Scholar.

99 C Lingaas, ‘The Crime against Humanity of Apartheid in a Post-Apartheid World’ (2015) Oslo Law Review 86, 99; Van den Herik, L and da Silva, R Braga, ‘Article 7 – Crimes against Humanity – Apartheid’ in Ambos, K, Rome Statute of the International Criminal Court (4th edn, OUP 2021) mn 268Google Scholar.

100 For discussion, see Ambos, K, Treatise on International Criminal Law: Volume II: The Crimes and Sentencing (OUP 2014) 5961Google Scholar.

101 ICTY, Appeals Chamber, Prosecutor v Kunarac et al, IT-96-23&IT-96-23/1-A (12 June 2002) para 94 citing ICTY, Trial Chamber, Prosecutor v Kunarac et al, IT-96-23&IT-96-23/1 (22 February 2001) para 429. See further Werle, G and Jeßberger, F, Principles of International Criminal Law, (4th edn, OUP 2014) 340Google Scholar.

102 Lingaas, ‘The Crime’ (n 99) 99; Van den Herik and Braga da Silva (n 99) mn 268.

103 ICTY, Trial Chamber, Prosecutor v Krstić, IT-98-33-T (2 August 2001) para 571 (emphasis in the original). See also ICTY, Appeals Chamber, Prosecutor v Krstić, IT-98-33-A (19 April 2004) para 37; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 (Bosnian Genocide) paras 186–189.

104 ICTY, Appeals Chamber, Prosecutor v Jelisić, IT-95-10-A (5 July 2001) para 46 (emphasis added).

105 Ambos, ‘The Crimes’ (n 100) 24.

106 The relevant conduct will likely breach other rules of international law.

107 See similarly Gropengießer, H, ‘The Criminal Law of Genocide: A German Perspective’ (2005) 5 ICLR 329, 339Google Scholar and further Ambos, ‘Foundations’ (n 98) 364–5.

108 See similarly Milanović, M, ‘State Responsibility for Genocide’ (2006) 16 EJIL 553, 568Google Scholar and generally, Bosnian Genocide (n 103) paras 377–415. That is, the presence of a lawful purpose does not exclude the parallel existence of an unlawful purpose.

109 Milanović (n 108) 568.

110 Finnis, J, ‘Intention and Side Effects’ in Intention and Identity: Collected Essays Volume II (OUP 2011) 173, 176CrossRefGoogle Scholar. See further Kim, S, A Collective Theory of Genocidal Intent (Asser Press 2015) 97–9Google Scholar.

111 Human Sciences Research Council of South Africa, ‘Occupation, Colonialism, Apartheid?’ (2009) 166. See in relation to the specific intent of genocide and intermediate goals, Gropengießer (n 107) 339; Ambos, ‘Foundations’ (n 98) 365.

112 Bosnian Genocide (n 103) para 373. See similarly, Milanović (n 108) 568–9.

113 ICTY, Appeals Chamber, Prosecutor v Jelisić, IT-95-10-A (5 July 2001) para 47.

114 ibid.

115 See analogously, HRC, ‘Report of the Detailed Findings of the Independent Fact-Finding Mission on Myanmar’, A/HRC/39/CRP.2 (17 September 2018) paras 1419–1426.

116 ibid, paras 1419–1424.

117 See, in particular, J Verhoeven, ‘Crime de genocide : originalité et ambiguïté’ (1991) 24 RBDI 5, 21–22; DM Amann, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2 ICLR 93; C Lingaas, ‘The Elephant in the Room: The Uneasy Task of Defining “Racial” in International Criminal Law’ (2015) 15 ICLR 485; C Lingaas, ‘Imagined Identities: Defining the Racial Group in the Crime of Genocide’ (2016) 10 Genocide Studies and Prevention: An International Journal 79.

118 ICERD (n 8) art 1(1).

119 See similarly in relation to ‘racial’ segregation in Article 3 of ICERD, Thornberry (n 15) 249.

120 cf Lingaas, ‘The Uneasy Task’ (n 117) 489–91 in relation to relationship between international human rights law and international criminal law specifically. The present article is not concerned with international criminal responsibility.

121 Thornberry (n 15) 125.

122 See eg ICTR, Trial Chamber, Prosecutor v Akeyesu, ICTR-96-4-T (2 September 1998) para 514.

123 See eg ICTY, Trial Chamber, Prosecutor v Brdanin, IC-99-36-T (1 September 2004) paras 683–684. For a detailed assessment of different approaches, see Lingaas, ‘The Uneasy Task’ (n 117).

124 See relatedly ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’ (25 January 2005) para 499, and further G Verdirame, ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’ (2000) 49 ICLQ 578, 592; Lingaas, ‘Imagined Identities’ (n 117) 129. See also Lingaas, ‘The Crime’ (n 99) 101–2 and more widely M Desmond and M Emirbayer, ‘What Is Racial Domination’ (2009) 6 Du Bois Review 335.

125 Azerbaijan v Armenia (n 7) para 3.

126 ibid, para 5. See also Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (Preliminary Objections) (Judgment) [2019] ICJ Rep 558, para 95, noting that the parties accept that ‘Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups under ICERD’ (emphasis added).

127 CERD Committee, General Recommendation XXX on Discrimination against Non Citizens (2004) UN Doc CERD/C/64/Misc.11/rev.3, para 4; CERD Committee, ‘Admissibility of the Inter-State Communication Submitted by Qatar against the United Arab Emirates’ (27 August 2019) CERD/C/99/4.

128 General Recommendation XXX (n 127) para 4; Decision on Admissibility (n 127) para 60. See ET Achiume, ‘Governing Xenophobia’ (2018) 51 Vanderbilt Journal of Transnational Law 333, 356–8.

129 General Recommendation XXX (n 127) para 4; Decision on Admissibility (n 127) para 60. See also Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Qatar v. United Arab Emirates (Preliminary Objections) 4 February 2021 (Qatar v UAE) Dissenting Opinion of Judge Robinson, paras 6–18.

130 Qatar v UAE ibid para 105.

131 For criticism, see C Costello and M Foster, ‘Race Discrimination Effaced at the International Court of Justice’ (2021) 115 AJIL Unbound 339, 341–3; D Desierto, A Study in Contrasting Jurisdictional Methodologies: The International Court of Justice's February 2021 Judgments in Iran v. USA and Qatar v. UAE’ (EJIL:Talk!, 15 February 2021) <https://www.ejiltalk.org/a-study-in-contrasting-jurisdictional-methodologies-the-international-court-of-justices-february-2021-judgments-in-iran-v-usa-and-qatar-v-uae/>.

132 ibid 342. See further Qatar v UAE (n 129) Declaration of Judge Yusuf, para 14 and more widely Desmond and Emirbayer (n 124).

133 See further Amann (n 117) 117–31.

134 See generally B Sander, ‘The Expressive Turn of International Criminal Justice: A Field in Search of Meaning’ (2019) 32 LJIL 851, 866-71; and specifically N Erakat and J Reynolds, ‘We Charge Apartheid? Palestine and the International Criminal Court’ (20 April 2021) TWAILR.

135 ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (12 December 2001) UN Doc A/Res/56/83 (ARSIWA), Commentary to Article 40, para 4; ILC, 4th Report (2019), para 94; ILC, ‘Peremptory norms of general international law (jus cogens): Texts of the draft conclusions and Annex adopted by the Drafting Committee on second reading’ (11 May 2022), UN Doc A/CN.4/L.967, Annex (e).

136 ARSIWA (n 135) arts 40, 41.

137 ibid. See also C Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’ (2002) 13 EJIL 1161; M Jackson, Complicity in International Law (OUP 2015) 172–4.

138 For an account of international law's role in the creation of injustice, see J Linarelli, M Salomon and M Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (OUP 2018).

139 E Cusato, The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law (CUP 2021).

140 E Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (CUP 2015) 3. See also J Reynolds and S Xaiver, ‘“The Dark Corners of the World”: TWAIL and International Criminal Justice’ (2016) 14 JICJ 959; I Kalpouzos, ‘International Criminal Law and the Violence against Migrants’ (2020) 21 German Law Journal 571.

141 Z Miller, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’ (2008) 2 IJTJ 266, 267. See also C Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law (CUP 2021) 96–126.

142 See also Apartheid Convention (n 10) art 2(d).

143 Act 41 of 1950.

144 Act 67 of 1952.

145 Act 47 of 1953.

146 Act 48 of 1953.

147 Act 49 of 1953.

148 Pre-1948.

149 For a partial overview, see Truth and Reconciliation Commission of South Africa Report, Volume Six (March 2003).

150 For a critique of South Africa's Truth and Reconciliation Commission's individualized approach to victims and perpetrators, see M Mamdani, ‘Amnesty or Impunity: A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC)’ (2002) 32 Diacritics 33. See further T Madlingozi, ‘Good Victims, Bad Victims: Apartheid Beneficiaries, Victims and the Struggle for Social Justice’ in W Le Roux and K Van Marle (eds), Law, Memory and Apartheid: Ten Years after AZAPO v President of South Africa (PULP 2007) 107–26.

151 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) (Judgment) [1986] ICJ Rep 14 para 205.

152 A Tzanakopoulos, ‘The Right to be Free from Economic Coercion’ (2015) CJIL 616, 630–1.