The ICC should speedily investigate the crime against humanity of apartheid in Palestine

Four years after the fall of apartheid in 1994, apartheid was criminalised under Article 7(1)(j) of the Rome Statute of the International Criminal Court (ICC) in 1998. The Hague-based ICC was established to ensure accountability and individual criminal responsibility under its founding document, the Rome Statute, for serious crimes within its jurisdiction, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Even heads of state are not immune from responsibility under ICC jurisdiction.

The Rome Statute defines apartheid as a crime against humanity (serious human rights violations) committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over another with the intention of maintaining that regime. Many scholars agree that apartheid as a crime against humanity has reached customary international law status, which means that it is law that is considered binding on states under international law even if a state has not ratified an applicable treaty prohibiting apartheid.

States parties acceding to the Rome Statute recognise that apartheid as a crime against humanity can occur in contexts other than that of South Africa and reiterate their commitment to the principle that there should be no impunity for perpetrators of this crime.  There has not, as yet, been any prosecution of this crime under international criminal law.  In South Africa, apartheid as a crime against humanity is an offence under the Implementation of the Rome Statute of the International Criminal Act, 2002 (Act 27 of 2002).

Under international humanitarian law, apartheid has been designated by the High Contracting Parties to the Geneva Conventions as a grave breach under the 1977 Protocol Additional 1 if committed during an armed conflict or an occupation. Article 85(4) defines a series of “wilfully committed” acts as grave breaches of the protocol, among them: “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based upon racial discrimination”. 

The question of whether Israel’s treatment of Palestinians under its’ laws, practises and policies amounts to the crime against humanity of apartheid has been the subject of widespread consideration and condemnation for many years by Palestinians, the United Nations, legal scholars, the media, activists, and human rights organisations. 

The ascription of the apartheid label in its political and legal sense should not be conflated — a legal classification has direct consequences for how state and corporate actors will be able to conduct themselves in relation to a state whose head or officials are found to be perpetrators of the crime, as legally defined, and how international organisations may treat the state and its perpetrators under international law. Corporates may be held liable in their domestic jurisdictions for damages caused by their aiding and abetting of regimes that violate customary international law. A legal classification brings victims a step closer to accessing justice under international criminal law.

Despite the Israeli authorities dogged denial of allegations that it is an “apartheid state”, it is becoming increasingly difficult for them to maintain that denial in the face of mounting support for the claim their policies, practices and laws in Israel and in the Occupied Palestinian Territories do amount to the crime against humanity of apartheid. This year seems to be ushering in a new era in the discourse about the catastrophic violations of human rights against Palestinians since 1948. Certain seminal reports and opinions by international and Israeli organisations in the lead up to 2022 are evidence of this.   

The January 2014 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Chapter V of which focusses on the question of apartheid and segregation, examined in statistical detail, among others,  the murder and detention of Palestinians by the Israeli state, the treatment of Palestinian children under Israeli law, unlawful Israeli settlements in the West Bank, how the rights to work, education, freedom of movement and residence, and freedom of expression and assembly of Palestinians are affected by the wall, and the policies and practices of Israel in the Occupied Palestinian Territories through the legal framework of the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention).  In similar vein to the Rome Statute, the Apartheid Convention defines “the crime of apartheid” as inhuman acts 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 then special rapporteur stated that “[n]one of the human rights violations discussed in the context of possibly constituting inhuman acts for the purpose of the … Apartheid [Convention] or the Rome Statute can be said to be isolated events. Rather, their commission reflects systematic and discriminatory Israeli policies, laws, and practices, which determine where in the occupied land Palestinians may or may not travel, live and work.” The wilful, systematic, institutionalised and oppressive nature of Israeli conduct is in keeping with certain of the key elements of the definition of apartheid under the Rome Statute.   

Palestine was accorded non-member observer State status in the United Nations by the United Nations General Assembly Resolution 67/19 on 4 December 2012.  This reaffirmed the right of the Palestinian people to self-determination and independence in their state. Palestine can thus accede to treaties that are open to “any state” or “all states” that are deposited with the UN secretary-general.  On 2 April 2014, Palestine acceded to the Apartheid Convention and on 1 January 2015, Palestine accepted the ICC’s jurisdiction retroactively to 13 June 2014 regarding crimes committed in the Occupied Palestinian Territories, including East Jerusalem. 

The 2014 Gaza War thus forms part of the jurisdictional reach of the ICC. Palestine ratified the Rome Statute on 2 January 2015. As a punishment, a majority of United States senators moved to cut funding to the Palestinian Authority for the decision to join the ICC. A 2015 US appropriations Act prohibited funding for the Palestinian Authority if they initiated or actively supported an ICC investigation into alleged Israeli crimes against Palestinians. 

Even though Israel is not a signatory to the Apartheid Convention or the Rome Statute, its conduct in the Occupied Palestinian Territories is subject to scrutiny under these treaties since Palestine is a signatory. Israel is a signatory to International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), article 3 of which provides that “States parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”.  

Palestine acceded to ICERD in 2014. John Dugard, the eminent South African professor of international law and a former special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 stated in his 2007 report that despite Israel’s denial that international conventions dealing with racial discrimination apply to its laws and practises in the Occupied Palestinian Territories, it is difficult to resist the conclusion that many of its laws and practices violate the provisions of ICERD.

Palestine’s accession to the Rome Statute is a major development and a step towards justice for those victims of serious crimes of concern to the international community but the wheels of justice are turning very slowly if at all. Shortly after Palestine’s accession in 2015, then ICC Prosecutor, Fatou Bensouda, opened a preliminary examination into the situation in the state of palestine to determine whether Rome Statute criteria for opening an investigation were met.  

It was only in December 2019, that the prosecutor announced that all statutory criteria had been met, this notwithstanding that hundreds of communications on crimes allegedly committed in Palestine were received by her office as far back as 2009. A procedural hearing followed in which the prosecutor sought a ruling from the ICC to clarify the territorial scope of the court’s jurisdiction in this situation, a legal step which some have criticised as being an unnecessary one.  

On 5 February 2021, a majority of judges of the ICC’s pre-trial chamber II found that the ICC could exercise its criminal jurisdiction in the situation and that the scope of its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. In March 2021, the prosecutor announced the official opening of an investigation into the situation. To date, however, the ICC has not issued any arrest warrants in this matter.  

Although each situation is different, the speed with which an ICC investigation got underway in Ukraine is noteworthy, which is not to say that the victims of the military action in this region are not deserving of the justice to be meted out by the ICC, but that the resources of the court should be allocated expeditiously and on an equitable basis to all situations requiring its attention.  

Ukraine accepted ICC jurisdiction in 2013 with the prosecutor announcing a reasonable basis to proceed with an investigation shortly thereafter. Within days of the Russian Federation’s recent military action, the current ICC prosecutor, Karim AA Khan, QC announced his decision to seek the court’s authorisation to open an investigation into the situation in Ukraine indicating that an active investigation would be “significantly expedited” if a State Party were to refer the situation to his office. This prompted the immediate referral to the ICC of the Ukraine situation by no less than 39 ICC member states. 

After the prosecutor’s institution of the necessary procedures to authorise an investigation, the ICC presidency earlier this month ordered the assignment of the Ukraine situation to a pre-trial chamber with immediate effect. An ICC investigative team has now been deployed to the region to commence evidence-collection activities.

Palestinians have been calling for the recognition of Israel’s rule as apartheid for several decades. A number of distinguished human rights organisations and other groups have published meticulously detailed studies and reports examining the policies, practices, and laws of Israel in relation to Palestinians.  

The 2009 legal study by the South African Human Sciences Research Council on Israel’s practices in the Occupied Palestinian Territories found that: The State of Israel exercises control in the OPT with the purpose of maintaining a system of domination by Jews over Palestinians and that this system constitutes a breach of the prohibition of apartheid.” 

In 2020, the Israeli human rights organisation Yesh Din with reference to the “creeping” annexation in the West Bank issued a legal opinion which found that the Israeli occupation comes with a “gargantuan colonization project that has created a community of citizens of the occupying power in the occupied territory” and that the treatment of the Palestinian population of the West Bank meets the definition of the crime of apartheid under both the Rome Statute and the Apartheid Convention. 

In January 2021, another Israeli human rights organisation, B’Tselem, issued a position paper entitled A rRgime of Jewish Supremacy From the Jordan River to the Mediterranean Sea: This is Apartheid. B’Tselem observed that the perception that there are two regimes operating in this area — the one, a permanent democracy for Israeli citizens and the other, a temporary military occupation imposed on Palestinian subjects — obfuscates the reality that the entire area between the Mediterranean Sea and the Jordan River “is organised under a single principle: advancing and cementing the supremacy of one group — Jews — over another — Palestinians”. After considering the laws and policies devised by Israel to entrench their control over the Palestinians, B’Tselem concludes that “the bar for defining the Israeli regime as an apartheid regime has been met”. 

The April 2021 Human Rights Watch report, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, states that “Israeli authorities have deprived millions of people of their basic rights by virtue of their identity as Palestinians. These long standing policies and systematic practices box in, dispossess, forcibly separate, marginalise, and otherwise inflict suffering on Palestinians.”  

Amnesty International’s report released on 1 February 2022, entitled “Israel’s Apartheid Against Palestinians”, methodically and effectively marshals all major aspects of Israeli conduct into the legal elements of the crime against humanity of apartheid.  All aspects of life for Palestinians under Israeli occupation have been considered from their status under Israel’s Basic Law, the territorial fragmentation into different domains of control, the expansion of illegal Israeli settlements in the Occupied Palestinian Territories, segregation, deprivation of economic and social rights, forced displacement, arbitrary arrest and illegal imprisonment and unlawful killings, among others.  Based on its investigations, Amnesty International calls upon the ICC to consider adding to its investigation the applicability of the crime against humanity of apartheid committed in the Occupied Palestinian Territories since 13 June 2014.   

Last month, the International Human Rights Clinic at Harvard Law School and Addameer Prisoner Support and Human Rights Association released a report based on an examination of the situation in the West Bank focussing on military orders, military courts, administrative detentions and the use of the military justice system to suppress the civil and political rights of Palestinians.  

The report found that Israel’s actions in the occupied West Bank are in breach of the prohibition of apartheid and amount to the crime of apartheid under international law.  Despite a lack of evidence, the Israeli authorities recently designated the Addameer Prisoner Support and Human Rights Association, and other leading human rights organisations, as “terrorist organisations” under Israel’s Counter-Terrorism Law of 2016, a move condemned by Palestinian civil society and the United Nations High Commissioner on Human Rights.  

In 2004, the International Court of Justice issued an advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territories and found that the construction of the wall, and its associated regime, are contrary to international law.

UN Security Council Resolution 2334 adopted in December 2016 states that Israel’s settlement activity constitutes a flagrant violation of international law and has no legal validity. 

The March 2022 report of the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, examines the current human rights situation in the Occupied Palestinian Territories, with specific emphasis on whether Israeli rule over them can now be called apartheid.  A notable fact for the special rapporteur is the February 2021 pre-trial chamber decision of the ICC that it has criminal jurisdiction to hear complaints regarding purported violations of the Rome Statute with respect to the situation in Palestine.  

The special rapporteur states: “[A]ccordingly, the relevant international law establishes that the [OPT] is a territorial unit where the prohibition against apartheid can be applied to assess whether apartheid practices exist. Among the factors that support this conclusion: the universal application of customary international law; the ratification by both Israel and Palestine of the ICERD; the ratification by Palestine of the [Apartheid Convention] and the Rome Statute; and the customary international humanitarian law status of the prohibition against apartheid.”

After a thorough analysis of the tests laid down in the Apartheid Convention and the Rome Statute, the special rapporteur concludes that “the political system of entrenched rule in the [OPT] which endows one racial-national-ethnic group with substantial rights, benefits and privileges while intentionally subjecting another group to live behind walls, checkpoints and under a permanent military rule ‘sans droits, sans égalité, sans dignité et sans liberté’ satisfies the prevailing evidentiary standard for the existence of apartheid”.  The special rapporteur recommends that the international community support any references or applications to the ICC or the International Court of Justice respecting the legal consequences of the practice of apartheid in the Occupied Palestinian Territories. 

In keeping with its independence and its legitimacy as an international institution established to end impunity for crimes under international criminal law, the ICC’s office of the prosecutor should investigate whether any person may be held responsible for the commission of any of the crimes within the jurisdiction of the ICC, that is not just war crimes, but the crime of genocide and also the crime against humanity of apartheid. For now, Palestinian victims of crimes of serious concern to the international community await justice. The legality of the charge of crimes against humanity of apartheid against Israeli state officials can and must be tested in independent court proceedings as soon as possible — at the ICC.

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Shehnaz Seria
Shehnaz Seria is an advocate and a former member of the Cape Bar based in Cape Town. She writes in her personal capacity.

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