Apartheid or Systemic Discrimination?

Apartheid is defined as a crime against humanity associated with a structure of government in which a ‘superior’ racial group establishes a system that oppresses and dominates an “inferior” one (see Article II of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid [“Apartheid Convention”] and Article 7.2(h) of the 1998 Rome Statute of the International Criminal Court [“Rome Statute”]). To ensure the maintenance of this oppressive system, multiple “inhuman acts” are perpetrated. However, unlike the crime of apartheid, the prohibition of apartheid in international human rights law is not defined in Article 3 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This is why scholars like Miles Jackson have argued that the definition of apartheid in Article II of the Apartheid Convention provides the definition of the wrong that binds all States in customary international law, as well as the definition of apartheid in CERD. As we shall see, this was an argument that was also raised by States in the advisory opinion proceedings and by judges in their separate opinions.

Despite the submission of these arguments in the written and oral pleadings, the International Court of Justice (ICJ) avoided an analysis that engaged with the definition of apartheid in customary international law in its 19 July 2024 advisory opinion. The Court merely observed that Israel’s legislation and measures that segregate the settler and Palestinian communities in East Jerusalem and the West Bank constitute a breach of Article 3 of CERD, which prohibits all practices of “racial segregation and apartheid”. As the ICJ did not define apartheid when it referenced Article 3 of CERD or clarify whether it had made a finding of segregation or apartheid, the reference to Article 3 led to differences of views on the bench. ICJ President Salam and Judge Tladi thought that the reference to Article 3 of CERD amounted to an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid (see Salam, paras 15-17; Tladi, para 41), whereas Judge Iwasawa was of the view that the Court did not qualify Israel’s policies as apartheid (para 13). Judge Nolte was of the view that the Court left the matter open (para 8).

A lack of consensus on the Court could explain the failure to provide a definition of apartheid under customary international law. Judge Nolte expressed his concern that should the ICJ have provided a definition, it would have been expected to apply it (Separate Opinion of Judge Nolte, para 8). Reading between the lines, however, it could be argued that the expression “systemic discrimination”, which the Court referred to in paragraph 223 of the advisory opinion, was used as a synonym for “apartheid”, even though it did not link this description to a breach of Article 3 of CERD – for there does not appear to be any substantial difference between apartheid and systemic discrimination. This is because the word “systemic” is associated with crimes against humanity, which, as explained below, is how apartheid is defined as a crime in international law. As ICJ President Salam noted, the magnitude and consistency of Israel’s multiple violations of Palestinian human rights over many decades, “are part of an institutionalized regime of systematic oppression”(Declaration of President Salam, para 24).

This contribution explores the significance of the ICJ’s reference to “systemic discrimination”, which appears to have been used as an alternative description for apartheid, a word laden with multiple meanings. It is noteworthy that the ICJ devoted more space in its opinion to Israel’s discriminatory legislation and measures than to any other issue.

The failure to define apartheid

The definition of apartheid as a crime against humanity appears in two widely ratified treaties. The Apartheid Convention has 110 States parties, mostly Global South States. The Rome Statute has 124 States parties, including many States that had not ratified or acceded to the Apartheid Convention. Notably, 167 States have ratified at least one of these treaties.

However, rather than engaging with the definition of apartheid in customary international law, the ICJ decided to exclusively focus on CERD (see Section IV on “Applicable Law”, at para 101). By only focusing on CERD, the Court was able to avoid a finding that addressed the definition of apartheid in Article 3, which would have entailed addressing Article II of the Apartheid Convention, which provides a definition.

Although the Apartheid Convention was not expressly mentioned in the request for the advisory opinion, the Convention was raised in argument by two dozen States before the Court (including implicitly by some Western States such as Spain that referenced “a structure of institutionalised discrimination” in its oral pleading at para 17).

Judge Iwasawa expressed the view that the request for the advisory opinion was limited to human rights law, and not international criminal law (para 13). This might explain why the ICJ did not review the Apartheid Convention. Yet, as Gerhard Kemp and I noted in this piece, the Apartheid Convention is a hybrid treaty that combines elements of a human rights treaty with those of a penal treaty. In addition to declaring apartheid a crime against humanity, defining the crime, and providing for individual criminal responsibility in broad terms, the Apartheid Convention established a mechanism for monitoring and reporting on human rights violations.

Notably, the Apartheid Convention is listed a human rights treaty in the UN’s treaty collection under Chapter IV, and not as a penal treaty in Chapter XVIII. The Apartheid Convention was drafted in the UN’s Third Committee that deals, inter alia, with human rights, the elimination of racism and racial discrimination, and the promotion of the right to self- determination. 

The reference to systemic discrimination and apartheid in the advisory opinion

In paragraph 223 of the advisory opinion, the ICJ expressed its view, “that the régime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD. 224”. Notably not one of these provisions refers to systemic discrimination.

In paragraphs 224-229, the ICJ addressed Article 3 of CERD, which “refers to two particularly severe forms of racial discrimination: racial segregation and apartheid” (para 225). The Court explained that “[a]s a result of discriminatory policies and practices such as the imposition of a residence permit system and the use of distinct road networks … Palestinian communities remain physically isolated from each other and separated from the communities of settlers” (para 227). The Court went into some detail to explain how the separation between the settler and Palestinian communities is also juridical due to the partial extension of Israeli law to the West Bank and East Jerusalem creating “distinct legal systems in the Occupied Palestinian Territory” (para 228). The ICJ observed that for decades Israel’s legislation and measures have treated Palestinians “differently from settlers in a wide range of fields of individual and social activity in the West Bank and East Jerusalem” (para 228).

Accordingly, the Court concluded that: “Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD” (para 229). Although the ICJ did not define apartheid, the policies and practices described by the ICJ are considered constitutive of apartheid systems. As Kai Ambos has argued, “apartheid essentially describes a specific wrong that encompasses systemic and structural forms of discrimination destroying equality and freedom, within the framework of an institutionalized system of oppression”.

Apartheid as a crime against humanity

Given that the ICJ did not provide a definition of apartheid, understanding what it intended to convey in paragraph 229 is open to conflicting interpretations—as reflected in the diversity of views on the bench.

As is well known, apartheid is a word from the Afrikaans language, which means “to be apart”. According to the Oxford Reference definition of apartheid there would not be much difference between apartheid and segregation, since both require separating communities from each other. It would be tautological for Article 3 to refer to the same thing twice. Perhaps for this reason, David Keane suggests that apartheid is a “particularly egregious form of racial segregation”. In other words, segregation and apartheid are similar, just that the latter is a more severe form of segregation.

Given the close association between apartheid and segregation in Article 3 of CERD and the lack of a definition of apartheid in that treaty, many States made the argument in their written statements that the ICJ had to look beyond CERD for a legal definition of apartheid that went beyond segregation. They pointed out that apartheid is defined as a crime against humanity in the Apartheid Convention and the Rome Statute whose definitions focus on the systematicity of the crime as an oppressive system in which multiple human rights violations and other crimes against humanity occur. These States, which notably included South Africa and Namibia, argued that the definition of apartheid as a crime against humanity should inform the interpretation of Article 3 of CERD as a supplementary means of interpretation pursuant to Article 32 of the Vienna Convention on the Law of Treaties. Ultimately, the ICJ avoided this argument, but as Judge Nolte observed, addressing both definitions could have helped “to identify the meaning of apartheid under Article 3 of CERD in customary international law” (para 10).

Significantly, there is no other definition of apartheid in international law other than its definition as a crime against humanity. Notably, when CERD was adopted in 1965, with its reference to apartheid in Article 3, apartheid had already been condemned as a crime against humanity: see UN General Assembly Resolution 2074(XX) Question of South West Africa, 17 December 1965, para 4 – but it had not yet been defined. This would come later, in Article II of the 1973 Apartheid Convention.

The definition of apartheid as a crime against humanity in both the Apartheid Convention and the Rome Statute is broader than its popular meaning, going beyond policies of separation and segregation to include domination and oppression. This was because at the time of the drafting of the Apartheid Convention, in the early 1970s, the apartheid State under the Vorster administration (1966-78) was at its most repressive. You could say the same thing about the current Netanyahu government, the most repressive and violent in Israel’s history – to the extent that the UK Home Office recently granted asylum to a Palestinian citizen of Israel on account of increased persecution, apartheid, and systematic discrimination facing Palestinians inside Israel since October 2023.

Despite the differences between the definitions of the crime of apartheid in the Apartheid Convention and the Rome Statute (see Ambos), they both comprise three core elements: (i) an institutionalised regime of systematic oppression and domination by one racial group over another racial group or groups; (ii) the commission of several inhumane acts; and (iii) an intention to maintain that regime. These three constituent elements were identified by four of the judges in their separate opinions and declarations: (see Salam, para 20; Nolte, para 11; Brant, para 10; and Tladi, para 38). As Judge Brant noted, the Court could have interpreted Article 3 CERD based on the three elements mentioned above that are common to both Conventions. Judge Brant further noted that these elements also appear in the definition of the crime of apartheid in the International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes against Humanity, which Israel has not objected to.

The word “systemic