Draft Crimes Against Humanity Convention: Prosecuting the Crime Against Humanity of Apartheid: Never, Again

• Jurisdiction: South Africa
• Citation: (2018) African Yearbook on International Humanitarian Law 25
• Date: 19 August 2019
• Author: Gevers, C.
• Pages: 25-49
• Published date: 19 August 2019

Prosecuting the Crime Against

Humanity of Apartheid: Never, Again

Christopher Gevers*

Abstract

Despite being declared a c rime against human ity by the United Nations

General Assembly in 1966, a nd being the subject of a convention signed

by more than half of the world’s states to demand its pun ishment (the

1973 Convention on the Suppression and Punishment of the Cr ime of

Apartheid), there has never be en a single prosecution of the cr ime against

humanity of apart heid committed in South A frica. This pap er interrogates

the commitment of an ‘invisible college of inter national (crimi-nal) lawyers’

never to prosecute apartheid, bot h at Rome in 1998 and more recently

in the case of the Cri mes Against Humanit y Initiative and Internationa l

Law Commission to produce a spec ialised convention on crimes aga inst

humanity. It argues that at best t he ‘symbolic’ inclusion of apartheid in

the last-mentioned signies a comm itment once again never to prosecute

this crime aga inst humani-ty (thi s time at the national level), and at worst

discloses the racia l politics of international cr iminal law that render t he

prosecution of crimes com mitted by the West or in its name not only

untimely, but unthinkable.

Keywor ds: 1973 Convention on the Suppression and Punishment

of the Crime of Apartheid, Rome Statute of 1998, Crimes Against

Humanity Initiative, International Law Com mission, racial politics of

international crimi-nal law, to never prosecute apartheid

1 INT RODUCTION

In 1968, on a sunny but cool mid-autumn Wednesday afternoon, a

Kenyan diplomat rose to address the Third Committee of the Genera l

Assembly in New York. He wished to respond to the objections of the

Honourable Lady from the United Kingdom regarding the inclusion

of the crime against human ity of ‘apartheid’ in the Convention under

discussion, and echo in part those of the Honourable Gentleman f rom

Cyprus. The former had repe ated the position of her government that

the Convention should be limited to ‘war crimes of a grave nature’ and

added that, in any event, it was ‘neither necessary nor desirable to list in

detail the various t ypes of crimes again st humanity’.1 The Gentleman

from Cyprus d isagreed: he supported the specic inclusio n of the ‘crime

* Lecturer, School of Law, University of KwaZulu-Natal. gevers@ukzn.ac.za.

1 United Nations General Assembly 23rd Session 3rd Comm. 1566th Meeting

(9October 1968) 1.

25

(2018) African Yearbook on International Humanitarian Law 25

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26 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

of apartheid’ in sub-paragr aph (b), but added that ‘the Convention

was not only a humanitarian doc ument, but a legal document which

should take into account certain major legal principles’, chief among

them the ‘principle of non-retroactivity’ (somewhat bizarr ely, given

that the convention under discussion was the Convention on the

Non-Applicability of Statutory Limitations to War Crimes and Cri mes

Against Humanity (the 1968 New York Convention)).

In his response, the Gentleman f rom Kenya repeated the unanimous

position of African representatives that ‘it [was] essential to [specical ly]

enumerate the crimes against humanit y [of apartheid]’.2 In this much

he was in agreement with the gentleman from Cy prus. However, on the

question of the ‘legal principle of non-retroactivity’ t hey departed, the

Kenyan delegate insisting that ‘[i]t was important that the convention

should apply to crimes past, present and future. Apartheid was one of the

gravest crimes against human ity being committed today and it would

render the draft convention meaningless if [it] … were omitted.’3

Thirty yea rs later, on a midsummer Wednesday night, this time in

Rome, some African delegates might have experienced de ja vu, sor t

of, as they debated the inclusion of the crime against humanity of

apartheid in Art icle 7 of what would become the Rome Statute of the

International Crimina l Court (the Rome Statute).

However, there was a notable difference. In New York in 1968

African delegates were ghting attempts by Western states to limit that

Convention’s exclusive focus on past c rimes (and in particula r those

of Nazi Germany) at the expense of c rimes of the present and future,

including but not limited to the crimes of apart heid.4 In contrast, in

Rome in 1998 it fell to African states (and Haiti) to redirect attention

from an exclusive focus on fut ure cri mes, at the expense of cri mes of

the past (including but limited to the crime of apar theid). During

the Plenary, the Organisation of African Unit y (OAU) representative

noted that ‘Africa had a particular interest in t he establishment of the

Court, since its peoples had been the vict ims of large-scale violations

of human rights over the centuries: slavery, wars of colonial conquest

and continued acts of war and violence, even in the post-colonial era’.5

African states prevailed b oth in 1968 and 1998, and the crime against

humanity of apartheid was included i n the resultant Conventions, but

the victory was pyr rhic in both cases. The cri me against humanity of

2 Ibid.

3 Ibid.

4 As the delegate from Tanzania put it in 1968, it was essential that the Convention

be made ‘applicable not only to the events which had taken place in Europe

between 1939 and 1945, but also to the present situation and the future’. Delegate

from United Republic of Tanzania. United Nations General Assembly 23rd

Session 3rd Comm. 1568th Meeting (10 October 1968) 2.

5 Ofcial Records of the United Nations Diplomatic Conference of Plenipotentiaries

on the Establishment of an International Criminal Court (1998) Volume II 104 at

116.

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