Is it possible to apply the notion of apartheid in a situation of occupation or are these two legal notions mutually exclusive? This question, which has been rarely addressed by international legal scholarship (with the notable exception of this study by Miles Jackson), is preliminary to the consideration of whether apartheid occurs in a specific occupied territory. Recently, thanks to the work of some NGOs in relation to the Occupied Palestinian Territory, the debate over whether apartheid is occurring in certain portions of the West Bank has been rekindled, including, for example, in an EJIL:Talk! symposium. However, although the possibility of applying the concept of apartheid in this territory is not a novel source of debate, the preliminary question on the compatibility between apartheid and occupation has not received the attention it needs.
The Law of Occupation as the Main Legal Framework Governing Occupied Territory
International humanitarian law governs the main duties and faculties of occupying powers. The relevant rules embodied in the 1907 Hague Regulations, the 1949 Fourth Geneva Convention, and 1977 First Additional Protocol are often labelled as “the law of occupation.” In a nutshell, they vest the occupying power with certain administrative powers, in particular to restore and ensure public order and civil life in the occupied territory (Art. 43 of the Hague Regulations).
Under the law of occupation, the occupying power never acquires sovereignty over the occupied territory, and the local population is not bound by any duty of obedience to the occupying power. Rather, an occupation is a situation where two hostile entities are forced to live together temporarily, so that a balance must be provided: although the occupying power cannot violate certain rights of the local population (e.g. those protected by Arts. 44-56 of the Hague Regulations, by Arts. 49-78 of the Fourth Geneva Convention, and by Art. 75 of the First Additional Protocol), the occupying power nevertheless holds specific, extensive powers in relation to the maintenance of public order and civil life (Art. 43 of the Hague Regulations and Arts. 27(4), 49(2) and 78 of the Fourth Geneva Convention).
Although the administration of the occupied territory should focus on the welfare of the local population, nothing in the law of occupation suggests that the occupying power must treat the local population according to the same standards that it would apply to its own population. Rather, the law of occupation preserves the distinction between the action of the occupying power towards its own population (based on its own domestic legal system and the concept of sovereignty) and the action of the occupying power toward the local population (based on the idea that the occupying power must alter the daily life and legal framework of the occupied territory as little as possible). Since the law of occupation allows the occupying power to restrict the rights and freedom of the local population to preserve the security of the occupying army and public order in the occupied territory, one could argue that the law of occupation allows the application of different legal regimes to the local population and the population of the occupied territory.
The Law of Occupation as an Open (or Porous) Legal Framework
On the other hand, it is necessary to recognize that, in occupied territory, the applicable legal framework is not exhausted by the law of occupation. As affirmed by the International Court of Justice in the 2004 Wall Opinion, “some rights [pertaining to the administration of the occupied territory] may be exclusively matters of international humanitarian law” (para. 106; verbatim, this statement has been reproduced in the 2005 DRC v. Uganda Judgment, para. 216), but other issues can be governed by other applicable bodies of law. The Court was discussing the application of international human rights law conventions, clearly, but in some preceding paragraphs it had already ruled that two other rules of international law embodied in the U.N. Charter and in customary international law alike, namely the ban on the use of armed force and the principle of self-determination of peoples, apply in occupied territory (Wall Opinion, paras. 87-88).
After these pronunciations, the attention of scholars has been, understandably, hijacked by the debate on the application of international human rights law conventions to occupied territory and the occurrence of possible normative conflicts with international humanitarian law rules – a topic that cannot be explored in detail in this post (for my opinion on this, see here at 62-82). However, the real question is broader and regards the applicability of treaty and customary law rules in occupied territory as an additional source of obligations for the occupying power outside the rules codified by the law of occupation. In this, some relatively dated scholarship correctly pointed towards a broader approach to this question, which has repercussions on a number of issues beyond human rights law, including protection of the environment and protection against pandemics.
The starting point is that there is nothing in the law of occupation that prohibits the application of other rules of international law in occupied territory, as long as their application does not result in a violation of the law of occupation itself, or unless the relevant rule in question is in itself inapplicable in times of armed conflict. Neither of these circumstances apply to apartheid.
Apartheid as an International Crime Applicable to Occupied Territory
According to the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, the definition of apartheid, “which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to [some] 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.”
Contrary to what is argued by some scholars, there is nothing in international law that excludes the application of apartheid to occupied territory. A situation of occupation and an apartheid regime are not mutually exclusively. The fact that apartheid is most commonly seen as a violation of the right to internal self-determination of a people (see e.g. Cassese, 120-121; Dugard, 86; Senaratne, 68), whereas occupation impinges upon external self-determination (Cassese, 90-99), merely reflects the most famous case of apartheid – that of South Africa – which occurred within the very same state.
When dealing with the application of a treaty in occupied territory, two questions must be addressed: whether that treaty applies in armed conflict (because any occupation is a portion of an armed conflict) and whether that treaty applies extraterritorially (because occupied territory is by definition a portion of territory that does not belong to the occupying power). The Apartheid Convention does not mention its applicability in armed conflict, nor does it limit its applicability to peacetime. Similarly, the Convention does not explain its territorial scope of application. Is this enough to consider that apartheid does not apply in occupied territory?
I don’t think so. First, it should be noted that the Apartheid Convention can be seen as either a human rights treaty or as an international criminal law treaty. In this, the Convention is similar to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. Whereas both these conventions clarify that they apply to armed conflict, the lack of a similar specification in the Apartheid Convention is not conclusive either way. Considering the Apartheid Convention as a human rights law treaty, one should conclude that absent any derogation, it is applicable to armed conflict. This is the conclusion offered by the International Court of Justice in the aforementioned Wall Opinion (para. 112) in relation to the 1966 International Covenant on Economic, Social and Cultural Rights, which does not include any provision on its applicability in armed conflict. Similarly, the ICJ took for granted the applicability of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in armed conflict, notwithstanding the fact that its text does not mention an armed conflict. The fact that the CERD is presumed to be applicable in armed conflict is demonstrated by a number of inter-State applications regarding its alleged violations in armed conflict as well as by the practice of the CERD Committee in relation to Israel. This point is particularly relevant in relation to apartheid since Art. 3 of the CERD specifically prohibits apartheid (“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”).
The conclusion that apartheid under the Apartheid Convention and the CERD is applicable to armed conflict is in line with the opinion of the International Law Commission. In its work on the effects of armed conflicts on treaties, the Commission included “treaties for the international protection of human rights” in the list of treaties that are presumed to continue applying in armed conflict.
The same conclusion can be reached if one considers the Apartheid Convention as an international criminal law treaty. First, the 1977 First Additional Protocol, which is an international humanitarian law instrument governing armed conflict, considers “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” among those grave breaches of the law of armed conflict that belligerents must criminalize and prosecute as war crimes (Art. 85(4)(c)).
Moreover, apartheid is a crime against humanity and it is well established today that crimes against humanity can be committed either in peace time or armed conflict, as confirmed by the Statute of the International Criminal Court, which mentions apartheid as well (Art. 7(1)(j)). The International Law Commission, in its 2019 Draft Articles on Prevention and Punishment of Crimes Against Humanity clarified that crimes against humanity, including apartheid, should be punished in armed conflict (draft Art. 3). This conclusion is in line with the texts of the aforementioned Genocide Convention and the Convention of Enforced Disappearances, as well as with the opinion of the International Law Commission, which affirmed that “treaties on international criminal justice” continue to apply in armed conflict due to their subject-matter (see 2011 Draft Articles on the effects of armed conflicts on treaties, annex, lit d).
In relation to whether the Apartheid Convention and CERD apply extraterritorially to occupied territory, very few words are necessary. As summarized and discussed by abundant scholarship, international case law has affirmed consistently that international human rights law conventions apply whenever a state exercises extraterritorial jurisdiction in the form of effective control over a portion of territory – such as in the case of an occupation. Even the most unconvincing decisions on the inapplicability of human rights convention in armed conflict, such as the recent Georgia v. Russia (II) decision of the European Court of Human Rights , have maintained that these conventions apply in occupied territory (Georgia v Russia (II), paras. 146-175).
One might argue that the extraterritorial applications of conventions such as the Apartheid Convention or the Genocide Convention is different in relation to the obligation at stake: for instance, the obligation to prosecute alleged breaches of the Genocide Convention is subject to the ordinary international law rules governing the exercise of states’ criminal jurisdiction coupled with the special rules under its Art. VI, whereas the territorial scope of the duty to prevent genocide is limited by the “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide.” However, there is nothing in the Apartheid Convention – or in any similar convention – that limits the application of the duty not to commit apartheid (or, mutatis mutandis, genocide) beyond the rules on the extraterritorial application of human rights treaties. Indeed, the International Court of Justice has implicitly recognized that the ban on genocide under the Genocide Convention would apply extraterritorially (see 2007 Bosnia v. Serbia Judgment, where, nonetheless, the relevant conduct wasn’t considered to be attributable to State forces).
Furthermore, it must be emphasized that the rules on apartheid included in the CERD are explicitly applicable to any territory under State jurisdiction, rather than on its own territory alone. According to Art. 3, States Parties “undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction” (emphasis added). According to the CERD Committee, Art. 3 includes “such practices … imposed by forces outside the State,” as well as those directly instituted by the State. As noted by Thornberry , Art. 3 is the only jurisdictional clause in the CERD, and it explicitly applies to any territory under State jurisdiction in relation to apartheid, whereas no indication is included in relation to other prohibitions under that treaty. The occupied territory, ça va sans dire, is a territory under the jurisdiction of the occupying power.
Finally, it is noteworthy that the International Court of Justice has considered that the notion of apartheid was applicable to occupied territory in relation to Namibia. Although this consideration did not pertain to the Apartheid Convention, which did not exist in 1971, the Court’s conclusion supports the idea that the notion of apartheid is applicable to occupied territory.
Conclusion: How to Apply Apartheid in Occupied Territory
If both the law of occupation and apartheid apply to occupied territory, what is the relationship between the two? First, it is possible that the Apartheid Convention and the law of occupation do not overlap in relation to certain specific conduct, so that they can be applied cumulatively without any normative conflict. If there is an apparent normative conflict, it should be avoided through interpretation. This conclusion can be found in the 1996 Nuclear Weapons Opinion of the International Court of Justice, which clarified that in cases of contextual application of international humanitarian law and international human rights law, the latter must be interpreted in light of the former. This dictum muddied the waters for decades since this contextual interpretive operation, which is fully consonant with Art. 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties directing that the interpretation of treaty terms be undertaken in light of any other rules of international law applicable between the parties, was instead labelled by the Court as an application of the principle of lex specialis – a technique to solve normative conflicts. Without lingering too much on this topic (which I have explored here at 71-80), suffice it to say that the use of international humanitarian law to interpret international human rights law is commonplace in the case-law of Inter-American and European human rights courts and mechanisms.
Applying this conclusion to the topic at hand, it is possible to argue that in the specific context of occupied territory, the law of occupation guides the interpretation of the definition of apartheid. For instance, the notion of arbitrary arrest and illegal imprisonment in Art. 2(a)(iii) of the Apartheid Convention should be interpreted in light of the rules of the law of occupation that allows the occupying power to restrict personal freedom of the local population (e.g., Art. 78 of the Fourth Geneva Convention). Similarly, the notion of “legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country” should be interpreted in light of the rules of the law of occupation pertaining to the removal of organs and functionaries of the ousted sovereign (e.g., Art. 54 of the Fourth Geneva Convention). It is every difficult to envisage any conflict between the law of occupation and apartheid that cannot be solved through interpretation.
Apart from this duty of interpreting one body of the law in light of the other, there is nothing in the law of occupation, international human rights law, international criminal law, or other international law branches that would bar the application of the notion of apartheid to occupied territory.
Image: WEST BANK – APRIL 21, 2003: View of the concrete separation wall between the Palestinian city of Tol Karem and Israel, April 21, 2003. (Photo by Shaul Schwarz/ Getty Images)