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 criminal ised under international law, the concept

of apartheid for the bet ter part never escaped its geographical origin:

the situation in southern A frica.

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

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

by an alogy 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 Hum an Rights Situat ion in

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

may f‌it the legal def‌inition of apar theid in his January 20 07 report to

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

Miguel d’Escoto Brockm ann, spoke in late 2008 of the import ance of

the United Nations using the apartheid terminology to describe Israeli

policies (see fur ther Reynolds ‘The Spe ctre of South Africa’ (2011),

available at http://www.jadaliyya.com/page s/index/3006 /the-spe ctre-

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 M iddle 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 terr itories 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 draft s) (the report is available at

http://ww w.hsrc.ac. za/Medi a_R eleas e-378.phtml ).

The HSRC commi ssioned the study to tes t the hypothesis p osed by

Professor Dugard in the report he presented to the U N Human Rights

Council in Januar y 2007, in his capacity as U N 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 occ upation constitute forms of

Recent cases 417

(2011) 24 SACJ 417

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