Prosecuting the crime against humanity of apartheid. The historic first indictment in South Africa and the application of customary international law

Kemp, Gerhard; Nortje, Windell

Abstract

Apartheid is a crime against humanity, yet no person has ever been prosecuted for this crime. In 2021 two individuals were indicted in South Africa for the crime of apartheid. This is an historic first in the country which gave the policy of apartheid its name and material content. The indictment is, however, also a reminder that the non-prosecution of apartheid is a legal and moral issue to be understood in the context of South Africa’s transition from apartheid to democracy. Furthermore, the indictment, while historic and of international significance, concerns constitutional, procedural and prosecutorial issues that illustrate the complexities of the application of international criminal law in domestic criminal justice systems. This contribution argues that all these factors should be acknowledged and analysed. Ultimately, and despite the many obstacles and complexities, it is submitted that it is right to indict individuals who, through their crimes, made the apartheid system possible even if they were not in positions of leadership.

Citation

Kemp, G., & Nortje, W. (2023). Prosecuting the crime against humanity of apartheid. The historic first indictment in South Africa and the application of customary international law. Journal of International Criminal Justice, 21(2), 405–430. https://doi.org/10.1093/jicj/mqad023

• Journal Article Type: Article
• Acceptance Date: Jul 3, 2023
• Online Publication Date: Jul 27, 2023
• Publication Date: May 31, 2023
• Deposit Date: Jul 17, 2023
• Publicly Available Date: Sep 27, 2023
• Journal: Journal of International Criminal Justice
• Print ISSN: 1478-1387
• Electronic ISSN: 1478-1395
• Publisher: Oxford University Press (OUP)
• Peer Reviewed: Peer Reviewed
• Volume: 21
• Issue: 2
• Pages: 405–430
• Series ISSN: 1478-1387
• DOI: https://doi.org/10.1093/jicj/mqad023
• Keywords: crime of apartheid, South Africa, customary international law, international criminal law
• Public URL: https://uwe-repository.worktribe.com/output/10946421