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INTRODUCTION

CRIME OF APARTHEID
- (AS IN INTERNATIONAL LAW)
The crime of Apartheid is defined by the 2002 Rome Statute of the
International Criminal Court as inhumane acts of a character similar to
other crimes against humanity "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 ith the
intention of maintaining that regime!"
"n #ovember $0% &'($% the United Nations eneral Assem!l" opened
for signature and ratification the International Con#ention on the
$uppression and Punishment of the Crime of Apartheid! )t defined the
crime of apartheid as "inhuman acts committed for the purpose of
establishing and maintaining domination by one racial group of persons
over any other racial group of persons and systematically oppressing
them!"
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HI$TOR%
The term apartheid% from *fri+aans for "apartness%" as the official name
of the $outh African s"stem of racial se&re&ation' hich existed after
&',-! .omplaints about the system ere brought to the /nited #ations as
early as &2 0uly &',- hen 1r! 2admanabha 2illai% the representative of
)ndia to the /nited #ations% circulated a letter to the Secretary-3eneral
expressing his concerns over treatment of ethnic )ndians ithin the /nion
of South *frica! *s it became more idely +non% South *frican
apartheid as condemned internationally as un4ust and racist and many
decided that a formal legal frameor+ as needed in order to apply
international pressure on the South *frican government!
)n &'(&% the U$$R and uinea together submitted early drafts of a
convention to deal ith the suppression and punishment of apartheid! )n
&'($% the eneral Assem!l" of the United Nations agreed on the text of
the International Con#ention on the $uppression and Punishment of
the Crime of Apartheid (IC$PCA)! The .onvention has $& signatories
and &0( parties! The convention came into force in &'(5 after 20
countries had ratified it! *lmost all these 20 countries ere either
dominated or heavily under the influence of the Soviet /nion% and had
poor records on human rights and democracy! They ere6 7enin%
7ulgaria% 7yelorussia% .had% .zechoslova+ia% 8cuador% the 3erman
1emocratic Republic% 3uinea% 9ungary% )ra:% ;ongolia% 2oland% <atar%
Somalia% Syria% the /+raine% the /SSR% the /nited *rab 8mirates%
Tanzania% =ugoslavia!
"*s such% apartheid as declared to be a crime against humanity% ith a
scope that ent far beyond South *frica! >hile the crime of apartheid is
most often associated ith the racist policies of South *frica after &',-%
the term more generally refers to racially based policies in any state!"
Seventy-six other countries subse:uently signed on% but a number of
nations% including estern democracies% have neither signed nor ratified
the ).S2.*% including .anada% ?rance% 3ermany% )srael% )taly% the
#etherlands% the /nited @ingdom% *ustralia% #e Aealand and the /nited
States! )n explanation of the /S vote against the convention% *mbassador
.larence .lyde ?erguson 0r! said6 ">e cannot!!!accept that apartheid can
in this manner be made a crime against humanity! .rimes against
humanity are so grave in nature that they must be meticulously elaborated
and strictly construed under existing international la!!!"
)n &'((% Addition Protocol * to the ene#a Con#entions designated
apartheid as a grave breach of the 2rotocol and a ar crime! There are
&5' parties to the 2rotocol!
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The International Criminal Court provides for individual criminal
responsibility for crimes against humanity% including the crime of
apartheid!
The International Criminal Court ()..B came into being on & 0uly
2002% and can only prosecute crimes committed on or after that date! The
.ourt can generally only exercise 4urisdiction in cases here the accused
is a national of a state party% the alleged crime too+ place on the territory
of a state party% or the United Nations $ecurit" Council refers a
situation to the .ourt! The ).. exercises complimentary 4urisdiction!
;any of the member states have provided their on national courts ith
universal 4urisdiction over the same offenses and do not recognize any
statute of limitations for crimes against humanity! *s of 0uly 200-% &05
countries are states parties (ith Suriname and .oo+ )slands set to 4oin in
"ctober 200-B% and a further ,0 countries have signed but not yet ratified
the treaty! 9oever% many of the orldCs most populous nations%
including .hina% )ndia% the /nited States% )ndonesia% and 2a+istan are not
parties to the .ourt and therefore are not sub4ect to its 4urisdiction% except
by Security .ouncil referral!
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IC$PCA DEFINITION OF THE CRIME OF APARTHEID
*rticle )) of the ).S2.* defines the crime of apartheid as belo6
International Con#ention on the $uppression and Punishment of the
Crime of Apartheid'
Article II
?or the purpose of the present .onvention% the term Cthe crime of
apartheidC% hich shall include similar policies and practices of racial
segregation and discrimination as practiced in southern *frica% shall apply
to the folloing inhumane 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 them6
1enial to a member or members of a racial group or groups of the right
to life and liberty of person6
7y murder of members of a racial group or groupsD
7y the infliction upon the members of a racial group or groups of
serious bodily or mental harm% by the infringement of their
freedom or dignity% or by sub4ecting them to torture or to cruel%
inhuman or degrading treatment or punishmentD
7y arbitrary arrest and illegal imprisonment of the members of a
racial group or groupsD
1eliberate imposition on a racial group or groups of living conditions
calculated to cause its or their physical destruction in hole or in partD
*ny 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 and the deliberate creation of
conditions preventing the full development of such a group or groups%
in particular by denying to members of a racial group or groups basic
human rights and freedoms% including the right to or+% the right to
form recognised trade unions% the right to education% the right to leave
and to return to their country% the right to a nationality% the right to
freedom of movement and residence% the right to freedom of opinion
and expression% and the right to freedom of peaceful assembly and
associationD
*ny measures including legislative measures% designed to divide the
population along racial lines by the creation of separate reserves and
ghettos for the members of a racial group or groups% the prohibition of
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mixed marriages among members of various racial groups% the
expropriation of landed property belonging to a racial group or groups
or to members thereofD
8xploitation of the labour of the members of a racial group or groups%
in particular by submitting them to forced labourD
2ersecution of organizations and persons% by depriving them of
fundamental rights and freedoms% because they oppose apartheid!
UNCEARD DEFINITION OF RACIA+
DI$CRIMINATION
*ccording to the United Nations Con#ention on the Elimination of All
Forms of Racial Discrimination%
the term "racial discrimination" shall mean any distinction% exclusion%
restriction or preference based on race% colour% descent% or national or
ethnic origin hich has the purpose or effect of nullifying or impairing
the recognition% en4oyment or exercise% on an e:ual footing% of human
rights and fundamental freedoms in the political% economic% social%
cultural or any other field of public life!
This definition does not ma+e any difference beteen discrimination
based on ethnicity and race% in part because the distinction beteen the
to remains debatable among anthropologists! Similarly% in 7ritish la
the phrase racial group means "any group of people ho are defined by
reference to their race% colour% nationality (including citizenshipB or ethnic
or national origin"!
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ICC DEFINITION OF THE CRIME OF APARTHEID
*rticle ( of the Rome Statute of the International Criminal Court
defines crimes against humanity as6
Article ,
Crimes a&ainst humanit"
?or the purpose of this Statute% Ccrime against humanityC means any of the
folloing acts hen committed as part of a idespread or systematic
attac+ directed against any civilian population% ith +noledge of the
attac+6
;urderD
8xterminationD
8nslavementD
1eportation or forcible transfer of populationD
)mprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international laD
TortureD
Rape% sexual slavery% enforced prostitution% forced pregnancy%
enforced sterilization% or any other form of sexual violence of
comparable gravityD
2ersecution against any identifiable group or collectivity on
political% racial% national% ethnic% cultural% religious% gender as
defined in paragraph $% or other grounds that are universally
recognized as impermissible under international la% in connection
ith any act referred to in this paragraph or any crime ithin the
4urisdiction of the .ourtD
8nforced disappearance of personsD
The crime of apartheidD
"ther inhumane acts of a similar character intentionally causing
great suffering% or serious in4ury to body or to mental or physical
health!
Eater in Article ,% the crime of apartheid is defined as6
The -crime of apartheid- means inhumane acts of a character similar to
those referred to in paragraph &% committed in the context of an
institutionalised regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed ith the
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intention of maintaining that regime!
MA.OR APPARTHEID FACIN COUNTRIE$ AND
THEIR PRO$ECUTION MACHINERIE$
$OUTH AFRICA
/IRTH OF APARTHEID
Racial segregation and hite supremacy had become central aspects of
South *frican policy long before apartheid began! The controversial *0*1
+and Act% passed three years after South *frica gained its independence%
mar+ed the beginning of territorial segregation by forcing blac+ *fricans
to live in reserves and ma+ing it illegal for them to or+ as
sharecroppers! "pponents of the Eand *ct formed the South *frican
#ational #ative .ongress% hich ould become the *frican #ational
.ongress (*#.B!
ANC leader Nelson Mandela, released from prison in February 1990,
worked closely with President F! de "lerk#s $o%ernment to draw up a
new constitution for &outh Africa After both sides made concessions,
they reached a$reement in 199', and would share the Nobel Peace
Pri(e that year for their efforts
The reat Depression and 2orld 2ar II brought increasing economic
oes to South *frica% and convinced the government to strengthen its
policies of racial segregation! )n &',-% the *fri+aner #ational 2arty on
the general election under the slogan FapartheidG (literally
FseparatenessGB! Their goal as not only to separate South *fricaHs hite
minority from its non-hite ma4ority% but also to separate non-hites
from each other% and to divide blac+ South *fricans along tribal lines in
order to decrease their political poer!
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APARTHEID /ECOME$ +A2
7y &'I0% the government had banned marriages beteen hites and
people of other races% and prohibited sexual relations beteen blac+ and
hite South *fricans! The 2opulation Registration *ct of &'I0 provided
the basic frameor+ for apartheid by classifying all South *fricans by
race% including 7antu (blac+ *fricansB% .oloured (mixed raceB and hite!
* fourth category% *sian (meaning )ndian and 2a+istaniB as later added!
)n some cases% the legislation split familiesD parents could be classified as
hite% hile their children ere classified as colored!
* series of Eand *cts set aside more than -0 percent of the countryHs land
for the hite minority% and Fpass lasG re:uired non-hites to carry
documents authorizing their presence in restricted areas! )n order to limit
contact beteen the races% the government established separate public
facilities for hites and non-hites% limited the activity of nonhite labor
unions and denied non-hite participation in national government!
APARTHEID +EI$+ATION IN $OUTH AFRICA
$tartin& in *034' the Nationalist o#ernment in $outh Africa enacted
la5s to define and enforce se&re&ation
>hat ma+es South *fricaCs apartheid era different to segregation and
racial hatred that have occurred in other countries is the systematic ay in
hich the National Part"% hich came into poer in *034% formalized it
through the la! The main las are described belo!
Prohi!ition of Mi6ed Marria&es Act' Act No 77 of *0302rohibited
marriages beteen hite people and people of other races! 7eteen &',5
and the enactment of this la% only (I mixed marriages had been
recorded% compared ith some 2-%000 hite marriages!
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Immoralit" Amendment Act' Act No 8* of *079: amended in *07,
(Act 81)2rohibited adultery% attempted adultery or related immoral acts
(extra-marital sexB beteen hite and blac+ people!
Population Re&istration Act' Act No 19 of *079Eed to the creation of a
national register in hich every personCs race as recorded! * Race
.lassification 7oard too+ the final decision on hat a personCs race as
in disputed cases!
roup Areas Act' Act No 3* of *079?orced physical separation beteen
races by creating different residential areas for different races! Eed to
forced removals of people living in "rong" areas% for example .oloured
living in 1istrict Six in .ape Ton!
$uppression of Communism Act' Act No 33 of *079"utlaed
communism and the .ommunity 2arty in South *frica! .ommunism as
defined so broadly that it covered any call for radical change!
.ommunists could be banned from participating in a political
organization and restricted to a particular area!
/antu /uildin& 2or;ers Act' Act No 8, of *07**lloed blac+ people
to be trained as artisans in the building trade% something previously
reserved for hites only% but they had to or+ ithin an area designated
for blac+s! ;ade it a criminal offence for a blac+ person to perform any
s+illed or+ in urban areas except in those sections designated for blac+
occupation!
$eparate Representation of <oters Act' Act No 3= of *07*Together
ith the &'I5 amendment% this act led to the removal of .oloured from
the common votersC roll!
Pre#ention of Ille&al $>uattin& Act' Act No 78 of *07* 3ave the
;inister of #ative *ffairs the poer to remove blac+s from public or
privately oned land and to establishment resettlement camps to house
these displaced people!
/antu Authorities Act' Act No =4 of *07*2rovided for the establishment
of blac+ homelands and regional authorities and% ith the aim of creating
greater self-government in the homelands% abolished the #ative
Representative .ouncil!
Nati#es +a5s Amendment Act of *078#arroed the definition of the
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category of blac+s ho had the right of permanent residence in tons!
Section &0 limited this to those hoCd been born in a ton and had lived
there continuously for not less than &I years% or ho had been employed
there continuously for at least &I years% or ho had or+ed continuously
for the same employer for at least &0 years!
Nati#es (A!olition of Passes and Co?ordination of Documents) Act'
Act No =, of *078.ommonly +non as the 2ass Eas% this ironically
named act forced blac+ people to carry identification ith them at all
times! * pass included a photograph% details of place of origin%
employment record% tax payments% and encounters ith the police! )t as
a criminal offence to be unable to produce a pass hen re:uired to do so
by the police! #o blac+ person could leave a rural area for an urban one
ithout a permit from the local authorities! "n arrival in an urban area a
permit to see+ or+ had to be obtained ithin (2 hours!
Nati#e +a!our ($ettlement of Disputes) Act of *0712rohibited stri+e
action by blac+s!
/antu Education Act' Act No 3, of *071 8stablished a 7lac+ 8ducation
1epartment in the 1epartment of #ative *ffairs hich ould compile a
curriculum that suited the "nature and re:uirements of the blac+ people"!
The author of the legislation% 1r 9endri+ Jeroerd (then ;inister of
#ative *ffairs% later 2rime ;inisterB% stated that its aim as to prevent
*fricans receiving an education that ould lead them to aspire to
positions they ouldnCt be alloed to hold in society! )nstead *fricans
ere to receive an education designed to provide them ith s+ills to serve
their on people in the homelands or to or+ in laboring 4obs under
hites!
Reser#ation of $eparate Amenities Act' Act No 30 of *071?orced
segregation in all public amenities% public buildings% and public transport
ith the aim of eliminating contact beteen hites and other races!
"8uropeans "nly" and "#on-8uropeans "nly" signs ere put up! The act
stated that facilities provided for different races need not be e:ual!
Nati#es (Prohi!ition of Interdicts) Act' Act No =3 of *07= 1enied blac+
people the option of appealing to the courts against forced removals!
/antu In#estment Corporation Act' Act No 13 of *0702rovided for the
creation of financial% commercial% and industrial schemes in areas
designated for blac+ people!
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E6tension of Uni#ersit" Education Act' Act 37 of *0702ut an end to
blac+ students attending hite universities (mainly the universities of
.ape Ton and >itatersrandB! .reated separate tertiary institutions for
hites% .oloured% blac+s% and *sians!
Promotion of /antu $elf?o#ernment Act' Act No 3= of *070
.lassified blac+ people into eight ethnic groups! 8ach group had a
.ommissioner-3eneral ho as tas+ed to develop a homeland for each%
hich ould be alloed to govern itself independently ithout hite
intervention!
Ur!an /antu Councils Act' Act No ,0 of *0=*.reated blac+ councils in
urban areas that ere supposed to be tied to the authorities running the
related ethnic homeland!
Terrorism Act' Act No 41 of *0=,*lloed for indefinite detention
ithout trial and established 7"SS% the 7ureau of State Security% hich
as responsible for the internal security of South *frica!
/antu Homelands Citi@ens Act of *0,9.ompelled all blac+ people to
become a citizen of the homeland that responded to their ethnic group%
regardless of hether theyCd ever lived there or not% and removed their
South *frican citizenship! Jarious segregation las ere passes before
the #ationalist 2arty too+ complete poer in &',-!
2robably the most significant ere The Nati#es +and Act' No 8, of
*0*1 and The Nati#es (Ur!an Areas) Act of *081! The former made it
illegal for blac+s to purchase or lease land from hites except in reservesD
this restricted blac+ occupancy to less than eight per cent of South
*fricaCs land! The latter laid the foundations for residential segregation in
urban areas!
APARTHEID AND $EPARATE DE<E+OPMENT
1r! 9endri+ Jeroerd% ho became prime minister in &'I-% ould refine
apartheid policy further into a system he referred to as Fseparate
development!G The 2romotion of 7antu Self-3overnment *ct of &'I'
created &0 7antu homelands +non as 7antustans! Separating blac+
South *fricans from each other enabled the government to claim there
as no blac+ ma4ority% and reduced the possibility that blac+s ould
unify into one nationalist organization! 8very blac+ South *frican as
designated as a citizen as one of the 7antustans% a system that supposedly
gave them full political rights% but effectively removed them from the
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nationHs political body!
)n one of the most devastating aspects of apartheid% the government
forcibly removed blac+ South *fricans from rural areas designated as
FhiteG to the homelands% and sold their land at lo prices to hite
farmers! ?rom &'5& to &'',% more than $!I million people ere forcibly
removed from their homes and deposited in the 7antustans% here they
ere plunged into poverty and hopelessness!
OPPO$ITION TO APARTHEID
Resistance to apartheid ithin South *frica too+ many forms over the
years% from non-violent demonstrations% protests and stri+es to political
action and eventually to armed resistance! Together ith the South )ndian
#ational .ongress% the *#. organized a mass meeting in &'I2% during
hich attendees burned their passboo+s! * group calling itself the
.ongress of the 2eople adopted a ?reedom .harter in &'II asserting that
FSouth *frica belongs to all ho live in it% blac+ or hite!G The
government bro+e up the meeting and arrested &I0 people% charging them
ith high treason!
)n &'50% at the blac+ tonship of Sharpesville% the police opened fire on a
group of unarmed blac+s associated ith the 2an-*frican .ongress
(2*.B% an offshoot of the *#.! The group had arrived at the police
station ithout passes% inviting arrest as an act of resistance! *t least 5(
blac+s ere +illed and more than &-0 ounded! Sharpesville convinced
many anti-apartheid leaders that they could not achieve their ob4ectives
by peaceful means% and both the 2*. and *#. established military
ings% neither of hich ever posed a serious military threat to the state!
7y &'5&% most resistance leaders had been captured and sentenced to long
prison terms or executed! #elson ;andela% a founder of /m+honto e
Size (FSpear of the #ationGB% the military ing of the *#.% as
incarcerated from &'5$ to &''0D his imprisonment ould dra
international attention and help garner support for the anti-apartheid
cause!
APARTHEID COME$ TO AN END
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)n &'(5% hen thousands of blac+ children in Soeto% a blac+ tonship
outside 0ohannesburg% demonstrated against the *fri+aans language
re:uirement for blac+ *frican students% the police opened fire ith tear
gas and bullets! The protests and government crac+dons that folloed%
combined ith a national economic recession% dre more international
attention to South *frica and shattered all illusions that apartheid had
brought peace or prosperity to the nation! The United Nations eneral
Assem!l" had denounced apartheid in &'($% and in &'(5 the /# Security
.ouncil voted to impose a mandatory embargo on the sale of arms to
South *frica! )n &'-I% the /nited @ingdom and /nited States imposed
economic sanctions on the country!
/nder pressure from the international community% the #ational 2arty
government of 2ieter 7otha sought to institute some reforms% including
abolition of the pass las and the ban on interracial sex and marriage!
The reforms fell short of any substantive change% hoever% and by &'-'
7otha as pressured to step aside in favor of ?!>! de @ler+! 1e @ler+Hs
government subse:uently repealed the 2opulation Registration *ct% as
ell as most of the other legislation that formed the legal basis for
apartheid! * ne constitution% hich enfranchised blac+s and other racial
groups% too+ effect in &'',% and elections that year led to a coalition
government ith a nonhite ma4ority% mar+ing the official end of the
apartheid system!
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NATIONA+ PRO$ECUTIN AUTHORIT%
The .onstitution of the Republic of South *frica (*ct #o! &0- of &''5B%
created a single National Prosecution Authorit" (NPAB% hich is
governed by the #ational 2rosecuting *uthority *ct (*ct #o! $2 of
&''-B! The .onstitution% read ith this *ct% provides the #2* ith the
poer to institute criminal proceedings on behalf of the State% to carry out
any necessary functions incidental to institution of criminal proceedings
and to discontinue criminal proceedings! )t is accountable to the ;inister
of 0ustice and .orrectional Services!
Structure
"n a national level% the #2* is headed by the #ational 1irector of 2ublic
2rosecutions (#122B! The #122 is appointed by the 2resident of South
*frica for a term of &0 years!
The #122 is supported by a chief executive officer% a position hich as
filled by ;arion Sparg from 2000 to 200(% and by four 1eputy #ational
1irectors! 8very seat of the 9igh .ourt of South *frica is served by a
1irector of 2ublic 2rosecutions (122B% ho acts as the prosecution
authority for such .ourtCs 4urisdictional area! ?urther support comes from
Special 1irectors and )nvestigating 1irectors!
7usiness units
The #2* comprises various core business units6
The National Prosecution $er#ice (#2SB is composed of the various
122 offices (and their subordinatesB and are responsible for the day-
to-day criminal prosecutions! State *dvocates (attached to the office
of the 122B prosecute matters in the Superior .ourts% hilst 2ublic
2rosecutors (attached to various ;agistrateCs .ourtsB% prosecute
matters in the Eoer .ourts!
The Directorate of $pecial Operations (1S" or ScorpionsB as
launched on & September &'''% in .ape Ton% as a step toards
putting in place the necessary machinery to eradicate organised crime
in South *frica! )t as the birth of hat is envisaged to become a
orld-class la enforcement agency! The 1S" as later disbanded in
0uly 200' and the investigative capacity transferred to the South
*frican 2olice Service
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The Asset Forfeiture Unit (AFU) as established in ;ay &'''% to
give effect to certain provisions in the 2revention of "rganised .rime
*ct (*ct &2& of &''-B alloing for the criminal or civil seizure (and
subse:uent forfeiture to the StateB of assets belonging to perpetrators
of crime! "nce forfeited% these assets are realised and are utilised to
compensate the victims of crime andKor are ploughed bac+ into la
enforcement!
$e6ual Offences and Communit" Affairs ($OCA) as established in
"ctober &'''% ith the main ob4ective of eradicating all forms of
gender-based violence against omen and children! The /nit
comprises four sections% namely the Sexual "ffences SectionD the
1omestic Jiolence SectionD the ;aintenance SectionD and the .hild
0ustice Section!
The $pecialised Commercial Crime Unit ($CCU) as established
ith the focal ob4ective of prosecuting serious economic offences%
such as ?raud and related offences!
The 2itness Protection Unit (2PU) essentially provides support
services to vulnerable and intimidated itnesses and related persons in
any 4udicial proceedings in the .riminal 0ustice System! The unit also
provides assistance and co-operation to other countries% Tribunals and
Special .ourts% in the field of >itness 2rotection! The functions and
duties of the >2/ are classified "S8.R8T" in terms of the >itness
2rotection *ct!
The Priorit" Crimes +iti&ation Unit (PC+U) as created by
2residential proclamation on 2$ ;arch 200$! )n terms of its mandate%
it is to manage and direct investigations and prosecutions relating to6
criminal prosecutions arising from the Rome StatuteD crimes against
the State% including national and international terrorismD matters
emanating from the Truth and Reconciliation (TRC) process and
contraventions of The Regulation of ?oreign ;ilitary *ssistance *ct
(*ct #o &I of &''-B% the #on-2roliferation of >eapons of ;ass
1estruction *ct (*ct #o -( of &''$B% The #ational .onventional
*rms .ontrol *ct (*ct #o ,& of 2002B% The #uclear 8nergy *ct (*ct
#o ,5 of &'''B and The )ntelligence Services *ct (*ct #o 5I of
2002B!
The Inte&rit" Mana&ement Unit (IMU) is a relatively ne unit%
tas+ed to continually assess% prevent% monitor% evaluate and maintain
the #2*Cs integrity so that it is not in any ay compromised! The );/
is further tas+ed to have complete oversight of the reactive systems
and processes in instances here there has been a compromise of the
organisationHs integrity!
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.orporate Services (.SB is tas+ed to focus on servicing customer needs
and to concentrate resources to provide lo cost% high :uality corporate
service support to multiple business partners ithin the #2*!
*fter the #ational 2arty gained poer in South *frica in &',-% its all-
hite government immediately began enforcing existing policies of racial
segregation under a system of legislation that it called apartheid! /nder
apartheid% nonhite South *fricans (a ma4ority of the populationB ould
be forced to live in separate areas from hites and use separate public
facilities% and contact beteen the to groups ould be limited! 1espite
strong and consistent opposition to apartheid ithin and outside of South
*frica% its las remained in effect for the better part of I0 years! )n &''&%
the government of President FA2A de Bler; began to repeal most of the
legislation that provided the basis for apartheid!
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I$RAE+
.ritics have accused )srael of committing the crime of apartheidD )n a
200( report% United Nations $pecial Rapporteur for 2alestine 0ohn
1ugard stated that "elements of the Lstate of )sraelCsM occupation
constitute forms of colonialism and of apartheid% hich are contrary to
international la!" and suggested that the "legal conse:uences of a
prolonged occupation ith features of colonialism and apartheid" be put
to the International Court of .ustice!
The UN $pecial Rapporteur concludes that this "general structure of
apartheid that exists in the Occupied Palestinian Territories !!! ma+es
the allegation increasingly credible despite the differences beteen the
specific characteristics of South *frican apartheid and that of the
"ccupied 2alestinian Territories regime"!
South *frican 0udge Richard oldstone% head of the Report of the
United Nations Fact Findin& Mission on the 3aza .onflict% also +non
as the oldstone Report% riting in The #e =or+ Times in "ctober
20&&% said that "in )srael% there is no apartheid! #othing there comes close
to the definition of apartheid under the &''- Rome Statute!" 3oldstone
noted that *rab citizens of )srael are alloed to vote% have political
parties% and hold seats in the @nesset and other positions% including one
on the )sraeli Supreme .ourt! 3oldstone rote that the situation in the
>est 7an+ as more complex% but that there is no attempt to maintain
"an institutionalized regime of systematic oppression and domination by
one racial group"% and claimed that the seemingly oppressive measures
ta+en by )srael ere ta+en to protect its on citizens from attac+s by
2alestinian militants! 9oever the 3oldstone Report does not contain any
reference to charges of apartheid% hether supported or not! >ith regard
to associated issue of positive findings of )sraeli ar crimes in the report%
3oldstone has argued for a redaction! 9oever the other three authors of
the 3oldstone Report have publicly re4ected this arguing 3oldstone has
"misrepresented facts in an attempt to delegitimize the L3oldstone
ReportCsM findings and to cast doubts on its credibility"!
)sraeli 4ournalist %onatan $il#erman rote in )netnews that hile
ine:uality and in4ustice existed in the >est 7an+% )srael as not an
apartheid state! Silverman rote that hile South *frica as a legally
segregated society% )sraelCs actions in the >est 7an+ are not rooted in
legislation and stem from security concerns rather than racial bias!
17
.ontrary to these% the Russell Tri!unal on Palestine tends to 4udge in
favor of the apartheid allegations! *mongst a large list of violations of
international la% by both the /S and )srael% the Tribunal 4udges
"Jiolation of the prohibition of discrimination based on national origin
through )sraeli policies and practices a+in to *partheid (20&& .ape Ton
findings of this TribunalB! ?inal conclusions of this Tribunal are expected
in ?ebruary 20&$! The Russell Tribunal on 2alestine has been criticized as
biased against )srael by 4udge Richard 3oldstone% and South *frican
4ournalist and human rights activist 7en4amin 2ogrund% described the
.ape Ton Session of the Russell Tribunal on 2alestine "theatre"!The
Tribunal has on the other hand been endorsed by the traditionally critical
.enter for .onstitutional Rights% 0eish Joice for 2eace% )sraeli
.ommittee *gainst 9ouse 1emolitions as ell as other organizations!
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CONC+U$ION
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!"
)n &'(&% the U$$R and uinea together submitted early drafts of a
convention to deal ith the suppression and punishment of apartheid!
)n &'($% the eneral Assem!l" of the United Nations agreed on the
text of the International Con#ention on the $uppression and
Punishment of the Crime of Apartheid (IC$PCA)!
)n &'((% Addition Protocol * to the ene#a Con#entions designated
apartheid as a grave breach of the 2rotocol and a ar crime! There are
&5' parties to the 2rotocol!
The International Criminal Court provides for individual criminal
responsibility for crimes against humanity% including the crime of
apartheid!
The International Criminal Court ()..B came into being on & 0uly
2002% and can only prosecute crimes committed on or after that date!
*rticle )) of the ).S2.* International Con#ention on the
$uppression and Punishment of the Crime of Apartheid defines the
crime of apartheid!
United Nations Con#ention on the Elimination of All Forms of
Racial Discrimination% defines the term "racial discrimination"!
*rticle ( of the Rome Statute of the International Criminal Court
defines crimes against humanity
;a4or appartheid facing countries and their prosecution machineries
are6
$outh Africa
Racial segregation and hite supremacy had become central
aspects of South *frican policy long before apartheid began!
The reat Depression and 2orld 2ar II brought increasing
economic oes to South *frica% and convinced the government
to strengthen its policies of racial segregation!
)n &',-% the Afri;aner National Part" on the general
election under the slogan FapartheidG (literally FseparatenessGB!
19
Their goal as not only to separate South *fricaHs hite
minority from its non-hite ma4ority% but also to separate non-
hites from each other% and to divide blac+ South *fricans
along tribal lines in order to decrease their political poer!
7y &'I0% the government had banned marriages beteen hites
and people of other races% and prohibited sexual relations
beteen blac+ and hite South *fricans!
The 2opulation Registration *ct of &'I0 provided the basic
frameor+ for apartheid by classifying all South *fricans by
race% including 7antu (blac+ *fricansB% .oloured (mixed raceB
and hite! * fourth category% *sian (meaning )ndian and
2a+istaniB as later added!
Apartheid comes to an end
)n &'(5% hen thousands of blac+ children in Soeto% a blac+
tonship outside 0ohannesburg% demonstrated against the
*fri+aans language re:uirement for blac+ *frican students% the
police opened fire ith tear gas and bullets!
The .onstitution of the Republic of South *frica (*ct #o! &0-
of &''5B% created a single National Prosecution Authorit"
(NPAB% hich is governed by the #ational 2rosecuting
*uthority *ct (*ct #o! $2 of &''-B! The .onstitution% read ith
this *ct% provides the #2* ith the poer to institute criminal
proceedings on behalf of the State% to carry out any necessary
functions incidental to institution of criminal proceedings and to
discontinue criminal proceedings! )t is accountable to the
;inister of 0ustice and .orrectional Services!
I$RAE+
The UN $pecial Rapporteur concludes that this "general
structure of apartheid that exists in the Occupied
Palestinian Territories !!! ma+es the allegation increasingly
credible despite the differences beteen the specific
characteristics of South *frican apartheid and that of the
"ccupied 2alestinian Territories regime"!
20
REFERENCE$
*A httpCDD555Achinar6E6Acom
8A httpCDD!el&aumcham!erAcom
1A httpCDD555Acurrentla!ourreportsAcom
3A httpCDD;;hsouAin
7A 555AohchrAor&
=A 555Ainteri&htsAor&D
,A httpsCDD555AcontedAo6AacAu;D
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