Recent Case: International criminal law: The crime of apartheid revisited

• Jurisdiction: South Africa
• Author: Max Du Plessis
• Citation: (2011) 24 SACJ 417
• Published date: 06 September 2019
• Date: 06 September 2019
• Pages: 417-428

International criminal law:

The crime of apartheid revisited

MaX DU Plessis

University of KwaZulu-Natal, Durban

Introduction

While prohibited and criminalised under international law, the concept

of apartheid for the better part never escaped its geographical origin:

the situation in southern Africa.

Since 2007, however, the question of the relevance of apartheid to the

situation of the Palestinians and their treatment by Israel, not merely

by analogy to South Africa but as def‌ined by international law, has

gained currency with authorities in the United Nations. Professor John

Dugard, former Special Rapporteur on the Human Rights Situation in

the Palestinian Territories, raised the issue of whether Israel’s practices

may f‌it the legal def‌inition of apartheid in his January 2007 report to

the Human Rights Council. And the President of the General Assembly,

Miguel d’Escoto Brockmann, spoke in late 2008 of the importance of

the United Nations using the apartheid terminology to describe Israeli

policies (see further Reynolds ‘The Spectre of South Africa’ (2011),

available at http://www.jadaliyya.com/pages/index/3006/the-spectre-

of-south-africa, accessed on 15 Dec 2011).

This question was taken up by the Human Sciences Research Council

(HSRC) of South Africa, which in 2008 convened a team of international

lawyers from Palestine, Israel, South Africa and Europe to examine the

matter. On 16 May 2009, in London, the HSRC launched the results of a

study it had commissioned and coordinated by its Middle East Project

(MEP) of the Democracy and Governance Programme. The study’s title

was Occupation, Colonialism, Apartheid? A re-assessment of Israel’s

practices in the occupied Palestinian territories under international

law (the HSRC study). The HSRC study had been completed over

a period of 15 months, and was the result of extensive research,

discussion and debate (through seven drafts) (the report is available at

http://www.hsrc.ac.za/Media_Release-378.phtml).

The HSRC commissioned the study to test the hypothesis posed by

Professor Dugard in the report he presented to the UN Human Rights

Council in January 2007, in his capacity as UN Special Rapporteur. In

his report Professor Dugard posed the following question: Israel is

clearly in military occupation of the occupied Palestinian Territory.

At the same time, elements of the occupation constitute forms of

Recent cases 417

(2011) 24 SACJ 417

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