Session 2: International Crimes 2 – Apartheid, Gender and Terrorism
Broadening the meaning of genocide, through apartheid?
Victor Kattan, University of Nottingham & Gerhard Kemp, University of the West of England Bristol
Chair: Christy Shucksmith-Wesley, University of Nottingham
Panel Report by: Gbemi Akinyosoye and Nima Nikkhah
Kattan and Kemp’s paper was prompted by South Africa instituting proceedings against Israel for alleged violations of the Genocide Convention against Palestinians in Gaza, and considered how apartheid and genocide can be linked. They discussed the similarities between the two crimes, showing how the definition of apartheid in Article 2(a) and (b) of the Apartheid Convention is incredibly similar to the definition of genocide in the Genocide Convention.
They proceeded to consider how apartheid can create a systematic context for genocide, using examples of Nazi Germany where genocide was the end goal of a system of apartheid, and the Rwandan genocide where there was a long history of ethnic violence beforehand. In both cases, there was a similar pattern of behaviour where systematic racial discrimination came before a genocide.
Even more radically, apartheid could be used to expand the definition of genocide. Returning to the ICJ case, Kattan and Kemp suggested that the system of apartheid that Israel has imposed on Palestinians could be understood as either something that creates a risk of genocide or as part of genocide itself. This, then, could be used to argue that genocide is being committed.
Gender Blindness in International Criminal Law: The Example of Gender Apartheid
Shadi Sadr, Leiden University
The next presentation on apartheid also looked to expand a definition. Sadr’s paper discussed expanding the ‘racial group’ focus of apartheid to add gender. She drew a parallel between the South African apartheid regime and the gender discrimination faced by women in Iran and Afghanistan, then laid out the different elements of racial apartheid to consider whether they could equally apply to gender.
Apartheid requires an institutionalised regime of systematic oppression, which could be seen through the “overwhelming” legal and regulatory oppressive measures and their strict enforcement for women in Iran and Afghanistan.
The next element is dominance of one group over another, which in Iran is shown through the gender-discriminatory constitution, and in Afghanistan through women’s exclusion from public life and economic and social restrictions. Sadr established the final element of apartheid – intention to maintain the oppressive regime – through the persistent enforcement of oppressive laws and the violence in crushing resistance in both countries.
Considering how well the elements of apartheid align with systems of gender discrimination, Sadr looks to the future to say that apartheid must transcend its historical association with South Africa and expand its scope so that it can gain independent significance, similar to the trajectory of genocide.
“It was particularly interesting to see the similarities between the definitions of genocide and apartheid. Since genocide is commonly viewed as the ‘crime of crimes’, it was surprising to learn that apartheid, which is typically classed as a crime against humanity, has such similar elements. After this, I am interested in looking more into the proceedings that South Africa instituted against Israel for genocide at the ICJ, and applying the new perspective and understanding gained from this.
Similarly, I knew that apartheid was a race-only crime but did not consider how this could cause issues, nor did I realise that international law is limited in recognising the crimes that women are more likely to face even after the inclusion of more sexual and gender based violence offences in the Rome Statute. The use of the apartheid framework for gender is intriguing, since it is so closely tied to a South African or racial context.
Sadr clearly explained how the crime of apartheid can easily apply to situations of gender oppression, and considering how women are often overlooked in international criminal justice, it would be great to see how apartheid could be adapted to address women’s experiences in international justice. It will be interesting to see whether and how international criminal law can evolve to reflect modern societal wrongs, just as it did previously by introducing racial apartheid.”
Navigating the intersection between terrorism and SGBV: Can the Rome Statute provide a viable route for accountability?
Sara Ciucci, University of Nottingham
Ciucci’s talk began with a consideration of how terrorism and sexual and gender-based violence (SGBV) have significant overlap, particularly with regards to accountability, despite being currently addressed in isolation. Acts such as rape could be incorporated into a terrorism crime to account for more systematic forms of sexual violence.
Ciucci interestingly observed that it would be exceedingly difficult to incorporate terrorism within the Rome Statute, especially in such a way that would involve SGBV. It would not be considered genocide as the main target of terrorism is subjugation, not eradication. If terrorism was placed under war crimes, then the armed conflict nexus would leave significant gaps in liability. Similarly, smaller or less organised terrorists (which is often the case), would not be “systematic” as required for crimes against humanity.
It is therefore apparent that reform is needed to capture the full criminality of terrorism and SGBV. This could most simply be done by adding a new subsection to art. 7 of the Rome Statute (CAH) or through an expansive interpretation of art. 7(1)(k).
However, the best remedy may be to introduce a new crime of terrorism. Considering that states are predisposed to take matters into their own hands, when it comes to terrorism, establishing a provision that could hold terrorists directly accountable may serve to prevent catastrophic wars starting on the basis of eradicating terror. Unfortunately, states are unlikely to give up their flexibility when it comes to clamping down on terrorism, meaning that terrorism will continue to be fitted into the existing provisions.
The Use or Misuse of Terrorist Membership Labels for the Prosecution of Core International Crimes: How to make Labelling Practices Fair
Ligeia Quackelbeen, Criminal Law Department, Tilburg University & William Fortin, Criminal Law Department, Tilburg University
Quackelbeen and Fortin presented an array of evidence to help us understand prosecutorial decision-making regarding terrorist offences prosecuted under universal jurisdiction (UJ).
For the purposes of this study, UJ cases in the French, German, Dutch and Belgian courts were considered. Various interesting observations were made on the basis of this research. Overall, the legal definition of terrorism appears to be rather broad. All four of these nations have a low de minimis threshold for what is considered to be ‘membership’.
On the other hand, the requirement of mens rea often serves as a greater restriction on liability. Approaches to mens rea vary between jurisdictions, with France simply requiring knowledge, while the Netherlands requires knowledge of the terrorist objective. The difference in the approach to mens rea adopted by these jurisdictions may be explained by France’s attempts to work more proactively to prevent attacks such as those seen in the mid-2010s.
Another interesting observation was to consider the application of universal jurisdiction in the context of dual charging. Dual charging is the practice of prosecuting core international crimes as well as the terrorist offences. This was seen particularly in the contexts of crimes perpetrated in Afghanistan, Rwanda, Syria, and Iraq.
Finally, an example was explored to highlight the issues that these terrorism offences can raise for the principle of fair labelling. In the case of Zeynep G (Berliner Kammergericht) it was found that so long as the defendant was integrated in the terrorist organisation, then that is sufficient to establish membership. Here, marrying a known member of the terrorist group and bearing their children was sufficient to establish membership.
This talk raised questions that are pivotal to managing terror in a post-9/11 world. This research highlights the extent to which some basic rights are significantly restricted in the fight against terror. However, this approach of aggressive prosecution may be a good way to limit the extent to which states pursue military action against territories wherein terrorist organisations reside, which could in turn prevent civilian casualties.
“Overall, this panel provided a unique perspective of apartheid outside of the original South African context and of the material scope of terrorism, and it will be interesting to see whether these two crimes can depart from their historical associations. Such a departure may serve to be beneficial for situations such as that in Gaza.”