Redefining Apartheid in International Criminal Law

This article asks: to what extent is Article 7(1)(j) of the Rome Statute—the crime of apartheid—a tenable crime in international criminal law? It will be argued that despite the obligations incumbent on states not to intentionally discriminate against social groups, there is no customary legal norm of apartheid as a distinct crime against humanity. This is premised on the distinction between state obligations as different from norms demanding individual liability in international criminal law, as well as inadequacies of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the absence of case law relying on apartheid as a crime against humanity. Further, the weaknesses hindering the formation of a customary norm of apartheid as a distinct crime against humanity will be assessed with regard to the Rome Statute. Also it will be shown that the lack of coherence of Article 7(1)(j) demonstrates that the crime of apartheid is subsumed by the crime of persecution. Finally, two suggestions are offered on how the crime of apartheid could be established as a distinct offence in international criminal law. The central thesis of this paper is that the crime of apartheid is ambiguous and inoperable. In order for Article 7(1)(j) to be relevant in international criminal law, the offence must be reworked and clearly articulated.