The Significance of South Africa’s Accession to the 1973 Apartheid Convention and Suggestions for Improving the Treaty Text

[Gerhard Kemp is Professor of Law at UWE Bristol and Extraordinary Professor of Public Law at Stellenbosch University. 

Victor Kattan is Assistant Professor in Public International Law at the University of Nottingham School of Law.]

The Republic of South Africa deposited its instrument of accession to the International Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid Convention’) on 14 May 2024. The Convention will enter into force for South Africa on 13 June 2024. On the same day, South Africa also acceded to the International Convention for the Protection of All Persons from Enforced Disappearance which will also enter into force for South Africa on 13 June 2024. The fact that South Africa acceded to both treaties on the same day was not a coincidence; forced disappearance was one of the many inhumane practices of the apartheid state.

Our focus here is on the significance of South Africa acceding to the Apartheid Convention – thirty years after the end of apartheid and the country’s first democratic elections. This is remarkable, for the obvious reason that South Africa, the birthplace and paradigmatic case study of apartheid, remained a non-party to the Apartheid Convention, even though Namibia, the other Southern African nation most closely associated with the international wrong of apartheid, became a state party in 1982. Then the United Nations Council for Namibia, which had de jure competence to enter into international agreements on behalf of Namibia, became a party. 

Why did it take post-apartheid South Africa so long to accede to the Apartheid Convention? Does it matter that post-apartheid South Africa is a now a state party to the Apartheid Convention? And what improvements can be made to the text of the Apartheid Convention to better achieve its aims?

The 1973 Apartheid Convention 

It should come as no surprise that South Africa was one of four states (the other being Portugal, the United Kingdom and the United States) that voted against the adoption of the Apartheid Convention in 1973. It was noted that 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.’ From a South African point of view, the Apartheid Convention was a direct challenge to and condemnation of its domestic policy. While the Convention was primarily directed at southern Africa, states were ‘warned that the Convention was wide enough to cover other States that practiced racial discrimination’. 

Article II of the Apartheid Convention defines ‘the crime of apartheid’ as including ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa.’ The crime is defined as applying to several ‘inhuman acts’ that are crimes in ordinary law (murder, genocide, torture, persecution, forced labour etc.) as well as violations of human rights (discrimination, restrictions on freedom of expression, of movement, residence, occupation, and the right to work and to form trade unions etc.). These ‘inhuman acts’ are listed in Article II, paragraphs (a) to (f) of the Apartheid Convention. They are defined as comprising the ‘crime of apartheid’ when they are ‘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.’

The Apartheid Convention may be described as a hybrid treaty in that it combines elements of a human rights treaty with those of a penal treaty. In addition to declaring apartheid a crime against humanity, defining the crime, and providing for individual criminal responsibility in broad terms, the Convention established a mechanism for monitoring and reporting on human rights violations. The Convention’s monitoring mechanism is addressed in Articles VII, IX and X of the Convention. Pursuant to Article IX (1) the Chairman of the Commission on Human Rights appointed ‘a group consisting of three members of the Commission on Human Rights, who are also representatives of States Parties to the present Convention, to consider reports submitted by States Parties in accordance with article VII’.

From 1978, when the ‘Group of Three’, as it became known, was first appointed, until 1993, when the last meeting of the Group met to consider reports submitted by states parties, it reviewed 129 reports. In addition to detailing what the states parties to the Apartheid Convention were doing to combat apartheid in southern Africa, the reports also provided information on the legislative measures they had adopted to give effect to the penal provisions of the Apartheid Convention. In these reports, some states parties also commented on practices of apartheid beyond southern Africa. For example, Belarus, Cuba, Iraq, Qatar, Syria, and the UAE referred to Israel’s policies and practices toward the Palestinian people as falling within the territorial scope of Article II of the Convention. 

‘Fighting Racial Discrimination Worldwide’: South Africa’s Motivation for Acceding to the Apartheid Convention 

For obvious reasons, the Government of South Africa did not ratify the Apartheid Convention when the National Party was in office. But why did it take so long for South Africa to accede to the Convention following the end of apartheid and the country’s first multiracial election? 

When apartheid in South Africa ended in 1994, the question of how to deal with the country’s past was one of the crucial debates in the political negotiations that led to the adoption of the democratic constitution. Rather than Nuremberg-style criminal trials, the negotiators opted for a Truth and Reconciliation Commission (TRC) to deal with gross human rights violations committed between 1960 and 1994 on the side of both the apartheid state and the liberation movements. While its mandate was gross human rights violations in the broad sense (including crimes like murder, kidnapping, and aggravated assault), the TRC acknowledged that apartheid is a crime against humanity and that any process towards reconciliation had to start from this basic premise. The democratically-elected government did not prioritise membership of the Apartheid Convention. When the question of South Africa’s apparent failure to accede to the Apartheid Convention was raised in parliament in 2022, the response from the African National Congress-led government was that it had not moved on the Convention ‘because there was a perception that apartheid was over’. 

A closer look at the parliamentary discussion reveals that even some members of the governing party were questioning South Africa’s apparent lack of interest in acceding to the Apartheid Convention. The explanation offered by the government ministers and officials present at the parliamentary discussion, is telling. In one sense, the government regarded South Africa’s non-party status purely in domestic political terms. The government felt apartheid was gone and there was therefore no need to ratify the Apartheid Convention. On the other hand, there was a realisation that international instances of racial discrimination and oppression necessitates ratification of treaties such as the Apartheid Convention so that South Africa can ‘take the lead in fighting racial discrimination worldwide’. The matter was considered and approved by Parliament, which paved the way for South Africa to formally accede to the Apartheid Convention in May 2024. 

It is clear from the debates in parliament and the government’s explanations, that South Africa decided to accede to the Apartheid Convention, not for purposes of domestic law and policy, but rather to advance the international efforts to confront apartheid practices elsewhere in the world. Indeed, at the time of the above-mentioned parliamentary debates, apartheid was already a crime under South African law due to the incorporation in 2002 of the Rome Statute of the International Criminal Court into domestic law. The ICC crimes (including apartheid as a crime against humanity) were thus transformed into crimes under domestic criminal law. Apartheid is also criminalised in its customary form on the basis of a provision in the Constitution which incorporates customary international law into domestic law. In fact, two individuals, alleged to have committed the crime of apartheid in its customary form, are currently on trial. On the whole, it can be said that South Africa is, as far as domestic law is concerned, is in compliance with the aims of the Apartheid Convention. 

As mentioned in the parliamentary discussions, the main reason for South Africa’s decision to accede to the Apartheid Convention is to use this normative framework as a means to confront practices and policies of apartheid beyond southern Africa. This much is clear from South Africa’s references to apartheid in its application under the Genocide Convention against Israel at the ICJ, and in its submissions to the ICJ in the Advisory Opinion matter concerning the Legal Consequences of the Occupation of the Palestinian Territories. 

In fact, already in the above-mentioned parliamentary debates that preceded South Africa’s decision to accede to the Apartheid Convention, the question of Palestine and the system of apartheid imposed on the people of Palestine, were explicitly mentioned as part of the rationale to accede to the Apartheid Convention. 

Establishing a Special Mechanism to Combat Contemporary Forms of Apartheid 

Since the suspension of the Apartheid Convention’s treaty monitoring body in 1995, the following 11 states, including South Africa, have acceded to the Convention: Azerbaijan (1996), Georgia (2005), Kyrgyzstan (1997), Montenegro (2006), Paraguay (2005), Moldova (2005), Serbia (2001), Palestine (2014), and Uruguay (2012). Accordingly, these states have never been able to submit reports to the Group of Three. Given this lacuna, it is time the 110 states that are parties to the Apartheid Convention consider reactivating the Group of Three to monitor compliance with the Convention’s goals. 

During the proceedings at the ICJ concerning the Legal Consequences of the Occupation of the Palestinian Territories, 16 states parties to the 1973 Apartheid Convention made submissions that Israel is imposing an apartheid regime on Palestinians. In fact, Qatar, Namibia, and South Africa made the specific suggestion that the states parties to the Apartheid Convention consider establishing a special mechanism to combat apartheid in Israel/Palestine. This could take the form of either requesting that the Office of the United Nations High Commissioner for Human Rights (OHCHR) take steps to reactivate the Group of Three, as explained in this article. Alternatively, the UN General Assembly could consider re-establishing the UN Special Committee against Apartheid. The latter mechanism was established in November 1962 by UN General Assembly resolution 1761 (XXII). In addition to establishing the Special Committee, Resolution 1761 provides a template in paragraph 4 for what the UN General Assembly could recommend states do to end apartheid in Israel/Palestine.

There would be cost implications associated with re-establishing these bodies. The Group of Three only met a few days a year to consider the reports of states parties and would be the less costly option.  Reconstituting the UN Special Committee against Apartheid in Israel/Palestine, a permanent body, would obviously be more costly. There may also be overlap between the work of the Special Committee against Apartheid and existing UN bodies such as the Committee on the Inalienable Rights of the Palestinian People. These are matters that proponents of these options would have to consider. 

Further Suggestions for Reform: Amending the Apartheid Convention’s Compromissory Clause 

We would also suggest amending the Apartheid Convention’s notorious dispute resolution clause (compromissory clause) that was introduced during the drafting process in 1972 by the Soviet sleight of hand. The original Non-Aligned Movement (NAM) draft submitted by Nigeria, Pakistan, and Tanzania, which took the form of a separate Protocol to be annexed to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), provided that:

Disputes between States Parties relating to the interpretation, application or fulfilment of the present Protocol which are not settled by negotiation or by the procedures provided for in the Convention, shall, at the request of any of the States Parties to the dispute, be referred to the International Court of Justice, for decision, unless the disputants agree to another mode of settlement [emphasis added].

The NAM draft was closely modelled on the dispute resolution clause in Article 22 of ICERD with its two-tier system that aims to settle a dispute by negotiation prior to seizing the Court. However, in the subsequent draft—an amalgam of a Soviet/Guinean draft and a Non-Aligned Movement draft – the Soviets removed the reference to ‘of any of’ the States Parties to the dispute, so that it reads:

Disputes between States Parties arising out of the interpretation, application or implementation of this Convention which have not been settled by negotiation shall, at the request of the States Parties to the dispute, be brought before the International Court of Justice, save where the parties to the dispute have agreed on some other form of settlement [emphasis added].

The final text of the dispute resolution clause (Article XII) in the Apartheid Convention was modelled on the Soviet text and provides: 

Disputes between States Parties arising out of the interpretation, application or implementation of the present Convention which have not been settled by negotiation shall, at the request of the States parties to the dispute, be brought before the International Court of Justice, save where the parties to the dispute have agreed on some other form of settlement.  

As Andreas Zimmerman and Felix Boos have noted, Article XII of the Apartheid Convention ‘does not provide for the possibility of seizing the ICJ unilaterally’, unlike the Genocide Convention, for example. The removal of the reference to ‘of any of the States Parties’ means that states parties would have to agree to submit their dispute to the ICJ following negotiations. Yet, it is highly unlikely that states would agree to submit a dispute concerning the interpretation, application or implementation of the Apartheid Convention if it concerned their own policies, given the consequences of such a finding. Accordingly, we would suggest modifying the text of Article XII of the Apartheid Convention as originally proposed by NAM so that it refers to ‘any of the States Parties to the dispute’.

Article XVII of the Apartheid Convention provides that a request for the revision of the Apartheid Convention may be made at any time by any state party by means of a notification in writing addressed to the UN Secretary-General.  The UN General Assembly shall decide upon the steps, if any, to be taken in respect of such request.  

Conclusion 

The inaugural Global Anti-Apartheid Conference on Palestine was recently held in Johannesburg. The outcome document from this conference outlines political, cultural, social, diplomatic, and legal strategies for the total dismantling of Israeli apartheid. These strategies are broadly modelled on the historic Anti-Apartheid Movement that made a significant contribution towards the end of apartheid in South Africa. While the Apartheid Convention is not explicitly mentioned in the outcome document of the Johannesburg conference, the document draws attention to the fact that the former apartheid state – South Africa – is now at the forefront of legal efforts to confront apartheid practices elsewhere in the world, specifically Israeli apartheid policies imposed on the people of Palestine. Indeed, the South African government is of the view that its legal actions at the ICJ is part of an emerging global anti-apartheid movement on Palestine and that South Africa can and should play a leading role in this regard. 

We are not aware of any specific proposals by South Africa (or any other state) to revise the Apartheid Convention along the lines suggested above, but we are of the view that South Africa (and like-minded states) would do well to use the galvanising opportunity of the new anti-apartheid movement to request amendments to the Apartheid Convention. South Africa’s accession to the Apartheid Convention shows this instrument’s continued relevance. The political will expressed in South Africa’s parliament to use the Apartheid Convention as an instrument to confront apartheid beyond southern Africa, is a positive development. An amended Apartheid Convention holds the potential to make international law more effective and useful as a means to confront and end racism and oppression worldwide.