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Last month, more than fifty States gathered before the International Court of Justice (ICJ) to express their views on the legality of Israel’s prolonged occupation of East Jerusalem, the West Bank, and Gaza. The hearings, which relate to a December 2022 request from the United Nations General Assembly for an advisory opinion regarding this issue, spanned six days and closed on Feb. 26.
While almost all States that participated in the proceedings took the opportunity to express their views on the illegality of the occupation, 24 States and three international organizations made the further claim that Israel’s policies and practices amount to a system of institutionalized racial discrimination and domination breaching the prohibition of apartheid under international law and/or amount to prohibited acts of racial discrimination.
The claim that Israel is imposing a racially discriminatory regime on Palestinians is significant, coming thirty years after the end of apartheid in South Africa, and 53 years since the ICJ last addressed the matter in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa). In its 1971 Namibia advisory opinion, the ICJ found that the continued presence of South Africa in Namibia was illegal, and that South Africa was under an obligation to withdraw its administration immediately. In the process of reaching this conclusion, the ICJ explained that the establishment and enforcement of a system of apartheid constituted “a denial of fundamental human rights” and amounted to “a flagrant violation of the purposes and principles of the [U.N.] Charter.”
The arguments before the ICJ with respect to Israel’s policies and practices break new ground. For the first time, States are claiming before the “world court” that apartheid is being practiced by a U.N. Member State beyond Southern Africa. Of the States that advance this claim, 16 are parties to the International Convention on the Suppression and Punishment of the Crime of Apartheid. As explained below, these States could request that the Office of the United Nations High Commissioner for Human Rights (OHCHR) take steps to reactivate its treaty monitoring body, which was suspended in 1995 following South Africa’s first multi-racial election held with universal adult suffrage that led to the inauguration of Nelson Mandela as President. These States might also consider re-establishing the U.N. Special Committee Against Apartheid.
An authoritative apartheid finding by the ICJ could also have repercussions for States Parties to the U.N. Arms Trade Treaty. This is because apartheid, in addition to being a prohibited act under international law, is also a crime against humanity and a grave breach of the Geneva Conventions.
Apartheid Before the ICJ
Apartheid is hardly a novel topic for the ICJ. The Court has at its fingertips a rich jurisprudence arising from South Africa’s prolonged and illegal administration of South West Africa, now Namibia, from 1946 until 1990, where a racially discriminatory regime was imposed on the people of Namibia that led to four advisory opinions (1950, 1955, 1956, 1971), and a contentious case (1960-1966).
In this regard, it is significant that, in its July 2023 written statement to the Court, Namibia drew attention to “its own historical experience of systematic racial discrimination imposed by South Africa” (para 7 c.) Namibia devoted the overwhelming majority of its written statement to explaining why Israel’s policies and practices violate the prohibition of apartheid in customary international law and Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which obliges States Parties to prevent, prohibit, and eradicate all practices of racial segregation and apartheid in territories under their jurisdiction, and which both bind Israel.
Namibia also advanced the argument in its written statement that the definition of apartheid in Article II of the 1973 Apartheid Convention reflects customary international law. Namibia further noted that Article I of the 1973 Apartheid Convention defines apartheid as a crime against humanity giving rise to individual criminal responsibility. Apartheid is also defined as a crime against humanity giving rise to individual criminal responsibility in Article 7 of the Rome Statute of the International Criminal Court (ICC Statute).
Although Israel is not party to either the Apartheid Convention or the Rome Statute, by my count, 166 States from all over the globe have ratified at least one of these treaties, providing a solid foundation for the claim that the crime, whose definition overlaps with the definition of the crime of genocide, reflects customary international law. Practices of racial discrimination and apartheid also breach a peremptory norm of general international law.
The Significance of the Apartheid Claim
The arguments advanced in the proceedings before the ICJ that Israel has imposed an apartheid regime on Palestinians could in due course be even more consequential than the case South Africa brought against Israel under the 1948 Genocide Convention – even though advisory opinions are not formally binding on the U.N. organ (in this case the U.N. General Assembly) that requested it.
This is because the United Nations created special mechanisms to coordinate efforts to eradicate apartheid during the Cold War when the U.N. Security Council was divided (much in the way that it is divided today). While these mechanisms have been dormant for decades, they could be revived if there is political will. The fact that so many States went on the record to claim before the ICJ that apartheid is being perpetrated by a U.N. Member State could facilitate these efforts.
The U.N. Special Committee Against Apartheid
One of the mechanisms established to eradicate apartheid during the Cold War was the Special Committee Against Apartheid, which the U.N. General Assembly established in 1962. As law professor John Reynolds explains, “With the dismantling of apartheid in South Africa the special committee was dissolved by the UN. But in the meantime, a consensus has developed across global civil society that ‘the apartheid crime’ continues to occur in another place: Palestine.” Reynolds drew attention to the global coalition of 285 civil society organizations that in September 2023 called for the Special Committee Against Apartheid to be re-established to investigate allegations of Israeli apartheid.
The Special Committee against Apartheid, led by the late E.S. Reddy, played a pivotal role in coordinating efforts to end apartheid in South Africa. It was mandated to report on institutionalized racism in South Africa to the U.N. General Assembly and the Security Council. Re-establishing the Special Committee would require support from the General Assembly as well as funding, and one may expect opposition from some States – but this opposition was also prevalent during the Cold War but did not prevent the Special Committee from undertaking important work. For where there is political will, there is often a way – and the momentum created by the advisory proceedings, not to mention the catastrophic situation in Gaza, may provide the necessary support to re-establish it. And unlike the Security Council, General Assembly resolutions are not subject to Security Council vetoes and would not require consensus.
The Group of Three
A complementary mechanism to the Special Committee Against Apartheid that might be more straightforward to establish, as it was never dissolved, is the 1973 Apartheid Convention’s treaty monitoring mechanism, known as the “Group of Three.”
The Group of Three comprised three representatives of States Parties to the Apartheid Convention who were appointed by the Chairman of the U.N. Commission on Human Rights. The group met between 1978 and 1993 when it examined 129 reports by States Parties. While most of these reports concerned apartheid in Southern Africa, several States, such as Qatar, referred to Israel’s policies and practices toward the Palestinian people as falling within the territorial scope of Article II of the 1973 Apartheid Convention. Article II 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 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 work of Group of Three included, among other functions, circulating the names of individuals, organizations, and institutions suspected of committing, aiding, or abetting the crime against humanity of apartheid to all U.N. Member States where they were placed on a “blacklist” that was brought to the attention of the U.N. Secretary General, States, and competent U.N. bodies; drawing up a Statute for a permanent international penal tribunal for trying the crime of apartheid as envisaged by Article V of the Convention; and drawing attention to the role of transnational corporations in sustaining apartheid in Southern Africa.
Like the U.N. Special Committee, the Group of Three aimed to pressure both governments that committed the crime of apartheid and also those that supported it. In fact, its work went beyond just drawing attention to human rights violations, and reporting on compliance with the penal provisions of the 1973 Apartheid Convention, to holding individuals and institutions to account.
It is difficult to gauge how impactful the Group of Three was, but between 1984-1987, when the group was operating at its height, there was what scholar Joseph Hanlon called a “sanctions juggernaut” that saw many governments impose measures against South Africa. These included the decision by the United States not to roll over loans in 1985, which forced South Africa to freeze payments on its short-term debts, and the adoption by the U.S. Congress of the Comprehensive Anti-Apartheid Act in 1986. Many transnational corporations also withdrew from the country.
These measures had a devastating impact on the South African economy forcing Pretoria to enter direct negotiations with the African National Congress (ANC), which eventually led to the start of official negotiations in 1990, the adoption of an interim constitution, the formation of a Transitional Executive Council in 1993, and the country’s first democratic elections, held in 1994.
Following the inauguration of Mandela as president of South Africa in 1995, the work of the Group of Three was suspended. During the final meeting of the Group of Three, the Chairwoman “welcomed the significant and very positive developments that had occurred in South Africa.”
Re-establishing the Group of Three
Significantly, when the Chairwoman proposed to suspend the work of the Group of Three in 1995, she noted that the Apartheid Convention as drafted “applied to any country that might practise racial segregation under an institutionalized apartheid system.” She explained that the decision to suspend the work of the group was taken, “without prejudice to any subsequent reactivation of the monitoring mechanism of the Convention.”
Given that 16 States Parties to the 1973 Apartheid Convention are on the record making the claim that Israel is imposing an apartheid regime on Palestinians in their submissions to the ICJ, it would make sense for these States to ask the OHCHR to submit a report on the implementation of the Apartheid Convention with proposals for operationalizing and reconvening the work of the group. Paragraphs 1, 5(g), and 6 of General Assembly resolution 60/251 (2006), which established the U.N. Human Rights Council, created an expectation that the body would assume the role and responsibilities of the Commission on Human Rights, including with respect to the Apartheid Convention.
In its written statement (p. 19, para. 67), Namibia referred to a speech its diplomatic representative made before the Human Rights Council in September 2022 when Namibia implored it to “explore the possibility of establishing a mechanism to deal exclusively with Israeli apartheid practices against the Palestinian people on both sides of the Green Line.”
Namibia — and even Palestine, which is also a State Party to the 1973 Apartheid Convention — could explore in discussions with the Human Rights Council and with other like-minded States options to re-establish a mechanism to deal exclusively with Israeli apartheid practices, whether this is the Group of Three or some other mechanism. These States may want to consider asking the Human Rights Council to reform the Group of Three to ensure that it is comprised of a group of independent experts, rather than government officials. They could even explore the possibility of appointing a special rapporteur on the crime against humanity of apartheid and apartheid-like practices who would report annually to the Human Rights Council.
Namibia, Palestine, and other like-minded States would not need to wait for the ICJ to deliver its advisory opinion before taking this step. They already have more than enough support with 16 States Parties to the 1973 Apartheid Convention, and an additional 8 States, on the record, before the world court, as describing Israel’s policies as discriminatory, or in breach of the prohibition of apartheid under international law.
These States may additionally want to consider amending the Apartheid Convention itself by updating its provisions to refer to the Human Rights Council explicitly. The Convention is flexible in revising its provisions. According to Article XVII of the Convention, a request for revision may be made at any time by any State Party by means of a notification in writing addressed to the Secretary General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.
The U.N. Arms Trade Treaty
A carefully worded, reasoned, and authoritative opinion from a majority of ICJ judges that addresses the applicability of the crime against humanity of apartheid in the occupied Palestinian territories could also have repercussions for States Parties to the U.N. Arms Trade Treaty. This is because Article 6(3) of the Treaty prohibits any transfer of conventional arms, ammunition, and spare parts, if a State Party:
has knowledge at the time of authorization that the arms or items would be use in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
A recent decision by the Appeals Court of The Hague in the Netherlands, which resulted in the suspension of further shipment of F-35 parts to Israel, could provide a precedent for restricting arms transfers to Israel. As law professors Marten Zwanenburg and Joop Voetelink explain, the court took the view that the Strategic Goods Decree – which establishes certain national rules on trade in both dual-use and military goods – imported international law standards into domestic Dutch law. These standards included obligations flowing from U.N. Arms Trade Treaty and European Union law, which require the Netherlands to ensure that its export of arms to Israel does not violate international law. These obligations require the Dutch government to make a fresh review of the provision of arms to Gaza “to ensure respect” for the 1949 Geneva Conventions and their Additional Protocols.
The Dutch litigation mainly focused on obligations under the Geneva Conventions and the 1948 Genocide Convention, but the U.N. Arms Trade Treaty also refers to “crimes against humanity.” While such crimes fall within the purview of the Prosecutor of the International Criminal Court, an authoritative and reasoned opinion from the ICJ that Israel’s policies and practices in the occupied Palestinian territories breach the crime against humanity of apartheid, could provide an additional ground to challenge the continued provision of weapons to Israel in domestic courts. As explained below, it is easier to prove that a State is committing the crime of apartheid than it is to prove the crime of genocide.
The difficulties with litigation based on the Genocide Convention was apparent from the rejection of a recent application for judicial review of the United Kingdom’s ongoing provision of arms to Israel pursuant to the Strategic Export Licensing Criteria made pursuant to section 9 of the Export Control Act 2002. One of the reasons why the High Court rejected the claim was its view that the Secretary of State for Business and Trade made no error of law in its review of the license conditions for weapons transfers because the government was keeping its options under review. This included a review of the risk of genocide. (Al Haq v Secretary of State for Business and Trade and BAE Systems Plc, Order of Justice Eyre, Feb. 19 2024, para 10, on file with author). The Court appeared to accept the summary grounds advanced by the Secretary of State for Business and Trade that, “the obligation to prevent genocide will need to occur prior to the commission of genocide, [but] there is no violation of the Genocide Convention … unless genocide… has actually occurred.” The Secretary of State argued that the threshold for concluding that the specific intent required for the commission of genocide is a “high one” and that an intention to commit genocide must be “the only reasonable inference” from a State’s actions, as opposed to mass violations of international humanitarian law.
In contrast to the crime of genocide, with its high threshold to prove specific intent “to destroy, in whole or in part,” a protected group, “as such,” the crime against humanity of apartheid, under the Rome Statute, requires that crimes against humanity are “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 specific intent requirement is to demonstrate that a State intended to maintain such a regime by its conduct. This type of intent can be demonstrated more easily than genocidal intent as a State’s intention to maintain an apartheid regime can be established by references to public documents, such as a State’s constitution, laws, administrative acts, policies, practices, and official statements. This is the kind of assessment the ICJ is well placed to conduct (as the dissenting judges did in the 1966 South West Africa judgment).
Further, although the U.K. is not party to the 1973 Apartheid Convention, it is party to Additional Protocol 1 to the Geneva Conventions, which defines apartheid as a grave breach, and the Rome Statute, which defines apartheid as a crime against humanity.
An ICJ determination that Israel is engaged in the crime of apartheid could therefore have significant repercussions for U.K. decisionmakers and for a U.K. court subsequently reviewing their decisions on the legality of arms sales to Israel (and for other domestic courts determining similar issues).
Enforcing International Law in a Divided World
During the Cold War, South Africa was protected by the United States, the U.K., and the European Economic Community, its main economic and military partners, much in the way that these States continue to protect Israel today.
Given that the U.N. Security Council was deadlocked for much of the Cold War, the Socialist Bloc and Third World States created ad hoc institutions – such as the U.N. Special Committee Against Apartheid and the Group of Three – to enforce international law against South Africa. Today the world is similarly divided. This is why reconstituting the U.N. Special Committee Against Apartheid and the Group of Three should be given due consideration. As explained above, those States that made an apartheid claim before the ICJ could now take concrete steps – without waiting for the ICJ’s advisory opinion – to create special U.N. bodies to coordinate and implement measures against Israel for perpetrating the crime against humanity of apartheid against the Palestinian people.
States should also ensure that they do not breach their obligations under the U.N. Arms Trade Treaty by transferring arms to Israel where there is a clear risk that these weapons are being used to commit international crimes.
Victor Kattan is Assistant Professor of Public International Law at the University of Nottingham. He is writing a book on Apartheid as a Crime against Humanity for Oxford University Press. He is the author of one monograph, four edited books, and more than thirty single authored articles that have been published in peer reviewed journals.