Open Letter to UN Secretary-General António Guterres: Supporting the Call for a Global Study on the Crime of Apartheid and for its Inclusive Definition

September 2024

António Guterres
Secretary-General
United Nations
New York, NY 10017
United States

Dear Secretary-General,

We are writing to urge the United Nations to initiate a comprehensive global study on apartheid practices and to affirm an inclusive understanding of victims protected from the crime of apartheid. UN experts are increasingly pointing to apartheid practices and policies in different regions of the world, for example, the Occupied Palestinian Territories, Myanmar, Afghanistan and North Korea. In light of this trend and the multi-generational harms these practices cause, now is the time to recognize contemporary forms of apartheid and to bring the legal understanding of the crime of apartheid into compliance with international human rights and customary law. A UN study, in consultation with those impacted by apartheid, would play a transformative role in policy and accountability responses, including the drafting of the new Crimes Against Humanity Treaty (draft CAH treaty).

A system of institutionalized racist oppression and domination, apartheid strips people of their personal identities and systematically denies them their basic human rights and dignity. Apartheid in South Africa was “the very embodiment of injustice,” and its official end marked a crucial human rights victory. Nonetheless, its harmful effects continue to reverberate in the form of entrenched social and economic inequality. South African apartheid policies and practices are frequently analogized to Nazi policies, which were driven by a racist ideology that sought to isolate, dehumanize and ultimately exterminate the Jewish population. There was significant cross-pollination between the two regimes, underscoring these practices’ destabilizing, transnational risks.

Despite international efforts to eradicate apartheid, systematic forms of discriminatory oppression continue to plague societies across the world. UN experts and civil society have long alerted the international community to apartheid conditions in contemporary contexts, including for example, against Palestinians and Rohingyas. They have also called for the codification of gender apartheid in response to extreme rights violations and inhumane acts to subjugate women, girls and LGBTQI+ people in Afghanistan. Yet no one has ever been held criminally accountable for apartheid. This is in part due to inadequate political will but also because of shortcomings in the development of apartheid under international criminal law. 

These shortcomings are reflected in the recent International Court of Justice (ICJ) Advisory Opinion that, while finding Israeli abuses of Palestinians violate human rights protections against apartheid, declined to find the crime of apartheid. This was despite numerous states’ requests that it do so and despite ICJ judges’ observations that widespread discrimination in the Occupied Palestinian Territories is similar to that in apartheid South Africa. This decision makes clear that a UN study on the crime of apartheid and a definition in line with human rights and customary international law are urgently needed. At stake is whether women, girls and LGBTQI+ people will be recognized as victims if gender is added as a protected category under apartheid in the draft CAH treaty, and whether Palestinians, Rohingyas and others will be recognized as victims of the crime of racial apartheid.

I. Development of the Crime of Apartheid Under International Law

While the codification of apartheid as a crime against humanity was a vital achievement, its definition has two key limitations. First, because the definition arose from the struggle to end South African apartheid, it solely addresses racist regimes of oppression. The definition does not criminalize similar regimes based on additional protected categories, such as gender, listed in other Rome Statute crimes—namely genocide and persecution—that explicitly address discrimination. The movement to identify the Taliban’s worsening regime of discriminatory oppression as “gender apartheid” underscores the need to expand the categories listed in the apartheid provision under the draft CAH treaty.

Secondly, jurists have used outdated understandings to interpret the term “racial group” under international criminal law. This is despite the fact that for decades, international human rights law, in recognizing “race” and “gender” as grounds protected from discrimination, has defined them as social constructs. The understanding of these terms alone, however, is not at issue with apartheid’s legal definition. It is the understanding of protected “groups” under international criminal law that is at issue and will impact who is recognized as victims of apartheid.

International criminal law prohibits persecution, apartheid and genocide against enumerated protected groups. The term “racial group” under international criminal law has been interpreted using an outdated definition that dates back to World War II. The jurisprudence and the travaux preparatoires for, inter alia, the Rome Statute, the Genocide Convention, and the Apartheid Convention make this apparent. This outdated interpretation of “racial groups” requires the existence of at least some biological or hereditary criteria to demonstrate victims’ membership. Persecution is the only crime of the three that provides for an alternative understanding of “racial groups” under the Rome Statute. An examination of how protected “groups” are interpreted under genocide, apartheid and persecution demonstrates the need for clearer language in apartheid’s definition to ensure inclusive victim recognition and compliance with human rights and customary international law. For a more elaborate examination, see Lisa Davis & Kirby Anwar, Recognizing Women, LGBTQI+ Persons, Palestinians, Rohingyas and Other Victims of the Crime of Apartheid in the Draft Crimes Against Humanity Treaty (forthcoming, 2025) (available on request at Sarah.Bruchmann@law.cuny.edu).

A. Understanding Protected Groups Under the Crime of Persecution

The Rome Statute Elements of the Crimes provides two options for determining groups protected from persecution, regardless of whether the group is based on gender, race, or other categories.  Group membership can be determined either (1) solely from the perpetrators’ perception (meaning who the perpetrator intended to target), or (2) based on the victims’ membership in the targeted group “in fact.” The first option requires “subjective criteria” and underscores that categories such as gender and race are social constructs. What is relevant under this option is that perpetrators targeted the victim because they believed the victim was a member of the targeted group.  International and domestic jurisprudence and the ICC Policy Paper on the Crime of Gender Persecution affirm this understanding of “groups” under persecution.

Taking language from the crime of genocide, the second option under persecution would require some amount of “objective criteria,” meaning that the victim must be verified as a member of the protected group. Under this option, courts can use “subjective” criteria, but must also demonstrate “objective” criteria to establish that the victim was “in fact” a member. For example, “objective” criteria for “race” has been understood to mean biological features or hereditary characteristics, such as skin color—reaffirming an outdated and scientifically debunked understanding of “race.” Applied to “gender,” it would set back advances under customary international law, opening the door to retrograde notions that “gender groups” are defined biologically. It would also deter survivors from coming forward in cases where perpetrators target victims because they perceive them as LGBTQI+ persons.

B. Understanding Protected Groups Under the Crime of Genocide

Under genocide, the only way to prove a victim is a member of one of the four protected groups (racial, ethnical, religious and national) is to verify that the victim is “objectively” a member of the group. The first option under persecution is not available under genocide. While ad hoc tribunals and courts adjudicating genocide have allowed for some “subjective criteria” (meaning how the perpetrator viewed the victim), they still continuously require some amount of “objective criteria” to prove the victim was “in fact” a member of the group. In 2007, the International Court of Justice upheld this approach in Bosnia and Herzegovina v. Serbia and Montenegro.

Recognizing that genocide courts still require some “objective” criteria, scholars argue that “racial groups” under international criminal law should instead consistently be understood as social constructs, as they are under human rights and customary international law. They point out that the idea of a biological basis for race has been scientifically debunked.

C. Understanding Protected Groups Under the Crime of Apartheid

The understanding and application of crimes and their legal terms (such as “groups”) derive from two primary sources: travaux préparatoires (the negotiations, discussions and drafting of a final treaty text) and jurisprudence (case law produced by courts). Since there has yet to be a conclusive criminal trial of an individual for racial apartheid, there is no formal jurisprudence available to interpret how “racial groups” are understood under the crime of apartheid.

There are, however, travaux préparatoires for the Apartheid Convention and the Rome Statute, which both prohibit racial apartheid. Additionally, UN experts on the situations in Myanmar and Palestine have discussed or applied an understanding of the crime of racial apartheid.In all these contexts, “racial groups” have been generally understood to follow the meaning posed by genocide. This approach has been interpreted to exclude recognition of groups such as Rohingyas and Palestinians as victims of apartheid. This likely contributed to the ICJ’s refusal to make a determination on apartheid as a crime in the recent Advisory Opinion on the policies and practices of Israel in the Occupied Palestinian Territory. Due to the exclusion posed by “objective” victim group determination, numerous U.N. experts and criminal law scholars who address apartheid continue to advocate for racial groups to be interpreted as a social construct in line with international human rights law.

D. Charging Other Inhumane Acts under Apartheid

In addition to charging acts committed against members of a racial group, the crime of apartheid also covers victims of inhumane acts who were not members of the oppressed racial group—so long as the perpetrator intended to maintain such a regime when committing the inhumane act. While these victims are not recognized as part of the “racial group” (those who suffer discrimination and oppression by the perpetrators), they may still be recognized as victims of inhumane acts. This recognition has been posited as a way to include LGBTQI+ individuals as victims of gender apartheid (if gender is added to the draft CAH treaty), even if they are excluded from the understanding of protected “gender groups.” In other words, LGBTQI+ people could be recognized as victims of the inhumane acts meant to uphold the system of oppression instead of as members of the “gender groups” that were targeted for discrimination and oppression.

Recognition of the group, however, is what reflects the context of an institutionalized regime of systematic domination and oppression. Including LGBTQI+ persons as victims of inhumane acts but excluding them as members of the targeted group (victims targeted for gender discrimination) would be highly problematic. It would reinforce binary and debunked biological framings of “gender” that extremists utilize to enforce gender discrimination and feed tropes about gender that fuel attacks on the LGBTQI+ community. Proponents of these tropes conflate sex characteristics and social constructs, selectively labeling some as objective characteristics, and claim the existence of only two gender categories, “male” and “female.” Like any new term, if not properly defined, the introduction of “gender groups” under apartheid will open the door to debates about its meaning. If “gender groups” under apartheid is included and interpreted narrowly, some women, girls and other LGBTQI+ persons will be left out. This is of utmost importance because a prosecutor will have to define and prove the existence of “gender groups” when bringing charges of gender apartheid.

The value of recognizing gender apartheid is that it will help visibilize systems of oppression and domination based on gender and enable accountability for perpetrators. Were gender apartheid codified as a crime against humanity, gender apartheid and gender persecution (and other crimes) could complement one another and be charged cumulatively. Failing to criminalize systems that oppress women, girls and LGBTQI+ persons reinforces the entrenched invisibility of many of these victims. It also risks reinforcing the idea that only some—not all—women and girls face gender oppression and that other LGBTQI+ persons should be excluded from recognition altogether.

Similarly, where “racial groups” under apartheid are understood to require “biological” or “hereditary” criteria, this can lead to a failure to recognize apartheid’s existence. In other words, if this “objective” criteria understanding precludes Palestinians or Rohingyas from recognition as “racial groups” under apartheid, a prosecutor might be able to charge other inhumane acts (crimes against humanity), but not apartheid.

If the UN clarifies an inclusive understanding of victim groups under apartheid and if that understanding is also adopted into the draft CAH treaty, this would help address the failure to recognize Palestinian and Rohingya victims. The draft CAH treaty’s definition of apartheid should also be revised to include “gender” and make clear the recognition of all women and LGBTQI+ apartheid victims.

E. Principle of Legality Under International Criminal Law

While international human rights precedents recognizing “gender,” “race” and “ethnicity” as social constructs are abundant, there is a dearth of jurisprudence under international criminal law. The difference between the two areas of law lies in the strict legal requirements for prosecuting crimes as opposed to what is required to demonstrate human rights violations.

As a crime, apartheid is interpreted more narrowly and in accordance with international criminal law principles such as the principle of legality. While international human rights law can be an interpretive aid for international criminal law, it cannot necessarily be transposed onto it. This significantly raises the importance of including a clearly inclusive definition of protected “groups” under apartheid in the draft CAH treaty—one that reflects human rights and customary international law. UN experts, discussing apartheid as a crime akin to genocide, have recognized that apartheid practices clearly amount to human rights violations, but that for these acts to constitute international crimes the standard is higher and more rigidly interpreted.

For example, a 1981 U.N. Study on means to implement the Apartheid Convention and establish an international jurisdiction for it, while observing that relevant human rights and other treaties can influence the interpretation of some acts named in the Apartheid Convention, noted that the principle of legality nonetheless requires a more distinct specificity to the interpretation of these than would be necessary under human rights treaties. They noted that “the specific conduct elaborated in the Apartheid Convention’s proscription is not merely a more detailed treatment of a human rights violation, but also of a seminal description of a class of international crime.”

II. Ensuring a definition of apartheid that recognizes all victims

With no jurisprudence on apartheid as a crime against humanity and outdated language passed down from treaty to treaty over the last half century, there is reason to modernize its understanding and broaden protections. Under the Rome Statute and the draft CAH treaty, apartheid is defined as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”The UN Working Group on Discrimination Against Women and Girls addresses the outdated language in apartheid’s current definition by using “based on” in their proposed definition of gender apartheid. They define it as “inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one group over any other group or groups, based on gender and committed with the intention of maintaining that regime.”

However, there are two definitions circulating through the UN. The second version, included in a report by the UN Special Rapporteur on Afghanistan, risks being interpreted in a way that excludes LGBTQI+ victims. While outdated, this proposed definition represents an appropriate place to begin when drafting new treaty language. It utilizes original language and simply swops out the word “racial” for “gender.” The definition states: “inhumane acts …  committed in the context of an institutionalized regime of systematic oppression and domination … by one gender group over another gender group or groups.” This definition, however, uses treaty language that has been interpreted to identify victims’ groups based on biological characteristics.

It would better serve justice to revise the definition, as called for by the Working Group on Discrimination Against Women and Girls, to include “by reason of” or “based on” (language reflected under persecution) and to expand groups to include “gender.” This would ensure the definition of apartheid has a contemporary and inclusive recognition of its victims. Language like this would also uphold principles of legality and constitute a clear warning to would-be perpetrators of discriminatory systems of oppression, in line with principles of fair labeling.  

This is a pivotal moment in the struggle for accountability for crimes driven by discrimination—one that offers an opportunity to create the tools needed to ensure recognition for all victims. The codification of gender apartheid as a crime against humanity in the new draft CAH treaty would contribute to the progressive development of international law and should be fully supported as part of a contemporary apartheid definition. However, codification of apartheid with an outdated definition that does not reflect developments in customary international law could negatively impact decades of hard-fought wins for racial justice as well as for women’s, girls’ and LGBTQI+ rights. This is an especially urgent consideration given the draft CAH treaty currently lacks a provision like that in the Rome Statute requiring its interpretation to accord with human rights law. A UN study on apartheid could provide invaluable guidance for states, including for CAH treaty drafters, on bringing its understanding into congruence with human rights and customary international law.

III. Why the United Nations Should Study Apartheid Now

The United Nations stands as a beacon of international cooperation in its commitment to promoting human rights and addressing discrimination worldwide. As part of this commitment, the UN has commissioned various studies to understand, address and mitigate discrimination in its many forms. These have informed international policies, shaped human rights norms, and driven global advocacy efforts aimed at creating a more equitable and inclusive world.

A logical place to begin when drafting a new treaty is to start with old language and then revise as needed. This was the process used to create the draft CAH treaty. The natural next step would be for the UN to provide input on the crime of apartheid, both for CAH treaty drafters as well as for member states’ other accountability initiatives. A decision alone to commission such a study would, at minimum, respond to growing global awareness of and concern about entrenched forms of discrimination and oppression that demand attention. It would recognize the long-standing call for recognition of Palestinian victims of racial apartheid and the renewed groundswell of support for the inclusion of “gender apartheid” in the draft CAH treaty. The outcome of a study on apartheid could clarify that the understanding of contemporary forms of apartheid crimes should be based on subjective understandings of victims, in line with human rights and customary international law. Any such study must be conducted in direct consultation with victims of contemporary apartheid practices.

UN studies on apartheid have had a profound impact on both international opinion and the practical efforts to dismantle apartheid. From 1978–1993, the Group of Three on Apartheid served as a special commission in response to the international community’s concern over the apartheid system in South Africa. Tasked with studying apartheid and its implications, the Group of Three conducted thorough and impartial examinations of apartheid practices, documented the human rights violations associated with them, and provided recommendations to dismantle these injustices. Recognizing its potential future necessity, the commission was suspended “without prejudice to any subsequent reactivation of the monitoring mechanism,” and could therefore be recommissioned. Growing global concern about apartheid has fueled recent calls to revive the Group of Three, a proposal that a UN study could explore.

A new study on contemporary forms of apartheid would contribute to the development of global standards and frameworks for addressing and preventing apartheid-like conditions by fostering dialogue and cooperation. For these reasons, we urge the United Nations to commission a study on contemporary forms of the crime of apartheid and to clarify an inclusive understanding and recognition of its victims.

Respectfully yours,

Kirby Anwar, Senior Legal Fellow at Human Rights and Gender Justice Clinic at CUNY Law School

Wendy Isaack, International Human Rights Lawyer at Harnessing Rights Initiative- Advocacy for Global Gender Justice

Artemis Akbary, Co-Founder and Executive Director of ALO: Afghan LGBTIQ+ Organization

Zahra Mousawy, Founder of Afghan Women’s Studies Academy

Randa Siniora, General Director at Women’s Center for Legal Aid and Counseling (WCLAC)

Yifat Susskind, Executive Director of MADRE

Maria Sjödin, Executive Director of Outright International