The Practices of Apartheid as a War Crime: A Critical Analysis
© T.M.C. Asser Press and the authors 2015
Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_55. The Practices of Apartheid as a War Crime: A Critical Analysis
5.1 Introduction
5.2.1 Introduction
5.2.5 Conclusion
5.3.1 Introduction
5.3.4 Conclusion
5.5.1 Introduction
5.5.4 Conclusion
5.6.1 Introduction
5.6.6 Conclusion
5.7 Conclusion
Abstract
The human suffering caused by the political ideology of apartheid in South Africa during the Apartheid era (1948–1994) prompted worldwide condemnation and a variety of diplomatic and legal responses. Amongst these responses was the attempt to have apartheid recognised both as a crime against humanity in the 1973 Apartheid Convention as well as a war crime in Article 85(4)(c) of Additional Protocol I. This article examines the origins, nature and current status of the practices of apartheid as a war crime and its possible application to the Israeli-Palestinian conflict.
Keywords
ApartheidWar crimesCrimes against humanityInternational criminal lawAdditional Protocol I (AP I)The Statute of the International Criminal Court (the ICC Statute)The ICRC customary international humanitarian law projectThe Israeli-Palestinian conflictThe principle of legality (nullum crimen, nulla poena sine lege)Paul Eden Lecturer in Law, University of Sussex. I would like to acknowledge the support and encouragement that I received from a number of friends and colleagues including Craig Barker, Jo Bridgeman, Christine Byron, Rob Cryer, John Dugard, Charles Garraway, Matthew Happold, Michael Kearney, Christophe Paulussen and Yael Ronen. Their support should not, however, be understood as agreement with the views expressed in this article.
5.1 Introduction
The term “apartheid” is derived from the Afrikaans word for apartness or separation. It is most commonly used to denote the policy of racial classification and segregation practised in South Africa between 1948 and 1994.1 The denial of basic human and political rights that the South African policy of apartheid entailed prompted worldwide condemnation as well as a variety of diplomatic and legal responses. Amongst these responses were the drafting of an international convention declaring that “apartheid is a crime against humanity” in 19732 and the inclusion of the “practices of apartheid” in the list of grave breaches contained in Article 85 of Additional Protocol I (AP I) in 1977.3
The focus of this chapter is a critical examination of the origins, nature and current status of the practices of apartheid as a war crime. The current status of apartheid as a crime against humanity will also be considered but more briefly and largely only in so far as it is relevant to the question of its possible application to the Israeli-Palestinian conflict.4 Although the ending of apartheid in South Africa in 1994 might be thought to have consigned both the concept and the attempts to criminalise it to history, apartheid was included as a crime against humanity in the 1998 Statute of the International Criminal Court (ICC Statute).5 Further, the obligation, contained in Article 86(1) of AP I, requiring parties to repress grave breaches of the Protocol has ensured that the war crime of the “practices of apartheid” has been incorporated into the domestic criminal law of many countries6 and the demise of apartheid in South Africa has not changed this. Finally, the increasing (but contested) application of the term apartheid to Israeli law and practice in the Occupied Palestinian Territories (OPT) raises the possibility of individual criminal prosecutions in this context.
Section 5.2 examines the inclusion of the “practices of apartheid” in the list of grave breaches of AP I. It details the criticism levelled against the inclusion of the “practices of apartheid” in the list of grave breaches of AP I. Section 5.3 addresses the process of inclusion of apartheid in the ICC Statute with particular emphasis on the failure to include the practices of apartheid in the list of war crimes. Section 5.4 criticises the inclusion of “[t]he practice of apartheid” in the list of customary international humanitarian law crimes by the International Committee of the Red Cross (ICRC) on the basis that the evidence relied upon relates almost exclusively to state practice declaring apartheid to be a crime against humanity. Section 5.5 asserts that the possible liability of individual Israeli citizens for carrying out policies that fall within the agreed definition of apartheid will depend on the customary status of the various international attempts to criminalise apartheid. The importance of distinguishing between the civil obligations of states and the potential criminal liability of individuals is also stressed. Section 5.6 assesses the customary status of the crime of apartheid as both a crime against humanity and as a war crime paying special attention to the principle of legality (nullum crimen, nulla poena sine lege). Section 5.7 concludes by stating that, even if the customary status of the crime of apartheid remains in doubt, the customary status of persecution on racial grounds and the other inhumane acts required to enforce any policy of systematic racial discrimination (whether characterised as apartheid or not) does not.
5.2 The Inclusion of the “Practices of Apartheid” in the List of Grave Breaches of AP I
5.2.1 Introduction
The debate over the inclusion of the “practices of apartheid” in the list of grave breaches of AP I is indicative of the longstanding tensions between the diplomatic and legal agendas of First World countries and Third World and Eastern Bloc states. These tensions compromised some aspects of the drafting of AP I and the inclusion of the “practices of apartheid” in the list of grave breaches has been singled out for criticism in this regard. Equally problematic is that the clash between the deep-rooted ideological convictions of the negotiating parties has resulted in what Professor Yoram Dinstein has referred to as a “‘Great Schism’ separating the Contracting Parties of Additional Protocol I from some key players in the international arena led by the US”.7 This section examines the process by which the “practices of apartheid” were included in the list of grave breaches in AP I and the criticism levelled against this inclusion of the “practices of apartheid”.
5.2.2 The Pressure to Include the “Practices of Apartheid” in the List of Grave Breaches
The initial ICRC draft (Article 74) merely extended the application of the provisions of the 1949 Geneva Conventions relating to the repression of breaches to the persons and objects falling within the protection of AP I. As early as the First Session of the Diplomatic Conference in March 1974, the Democratic Republic of Vietnam proposed a number of draft amendments to the ICRC’s draft AP I including a proposal to add “[t]he continued existence of colonial regimes, the practice of apartheid and all forms of racial discrimination” to the list of international crimes defined in international law since the Judgment of the Nuremberg International Military Tribunal.8
On 23 April 1976, during the debate on the discussion of the repression of breaches of the proposed AP I, the representative of the Byelorussian Soviet Socialist Republic made reference to the Apartheid Convention as an example of a crime against humanity that had been developed since the adoption of the Geneva Conventions of 1949.9 The representatives of the Union of Soviet Socialist Republics10 and the Ukrainian Soviet Socialist Republic11 made similar observations. The representative of the Syrian Arab Republic also deplored the failure to include apartheid among the list of grave breaches in draft AP I.12 On 29 April 1976, after the conclusion of the debate on the relevant article, Mongolia, Uganda and the United Republic of Tanzania introduced an amendment to the draft list of grave breaches that had been submitted by Australia to include:
Outrages upon personal dignity especially inhuman acts such as the practices of apartheid and other humiliating and degrading treatment.13
The amendment’s sponsors stated that they were particularly concerned (i) with the need to reaffirm and develop international humanitarian law applicable in armed conflicts, (ii) with the need to take into account developments in the years since 1949, and (iii) with the need to prevent human suffering.14 “The sponsors’ aim was to make it clear that the practices of apartheid were serious war crimes as well as dangerous crimes against humanity”.15
5.2.3 Criticism of the Inclusion of the “Practices of Apartheid” in the List of Grave Breaches During the Drafting Process
The list of grave breaches (that ultimately became Article 85 of AP I) was adopted by consensus but several delegations questioned the feasibility of some of the provisions due to the vagueness of the drafting. The inclusion of the “practices of apartheid” was singled out for criticism in this regard. Both the Austrian16 and the Finnish17 representatives doubted whether the “practices of apartheid” could be easily transposed into national criminal laws.
The Australian representative complained that some of the proposed grave breaches “did not embody the degree of specificity essential if abuse and injustice were to be avoided”.18 He confirmed his delegation’s condemnation of apartheid but stated:
the introduction of political ideologies, hateful as they might be, into the system of grave breaches was not to reaffirm and develop humanitarian law but to distort it.
He also stated that his delegation would not have been able to support the inclusion of the “practices of apartheid” into the list of grave breaches if a separate vote had been taken.19 The French representative also expressed his delegation’s doubts about the wisdom of including the “practices of apartheid” in the list of grave breaches and stated that, although not opposed to consensus as a whole, if a vote had been taken on this point, France would have abstained.20
By contrast, the representative of Yugoslavia strongly supported regarding discriminatory practices against protected persons, such as apartheid, as grave breaches.21 The Polish representative also expressed satisfaction at the inclusion of apartheid and inhuman and degrading practices based on racial discrimination in the list of grave breaches.22 The Argentinean representative considered the list of grave breaches less than perfect but stated that, given the diversity of legal concepts and political opinions, it appeared to be acceptable.23
5.2.4 Article 85(4)(c) of AP I—Commentary and Criticism
Article 85(4)(c) of AP I states that the “[p]ractices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” are grave breaches of AP I when committed wilfully and in violation of AP I. The commentary notes that sub-paragraph (4) is concerned with “off the battlefield” grave breaches and that, outside the scope of application of AP I, the crime of apartheid remains exclusively within the domain of crimes against humanity.24
In 1976, while the negotiations were still ongoing, Professor Gerald Draper25 criticised the creation of a war crime aimed at one State and entirely racial in content, noting that Article 27 of the Fourth Geneva Convention26 already required respect for protected persons “without any adverse distinction based, in particular, on race, religion or political opinion”. In Draper’s view, the deletion of the words “practices of apartheid and other” would not have altered the substantive nature of the grave breach that ultimately became Article 85(4)(c) of AP I. During the drafting process, the Ugandan representative pointed out “that all United Nations bodies, and the Security Council in particular, had always drawn a clear-cut distinction between racial discrimination and apartheid”.27 Draper also noted that “[t]he practices of apartheid, however morally defective, are not acts in any way linked with armed conflict. Placing them in the Protocol will not make them so”.28 This point had been partially conceded by the Ugandan representative during the drafting process who stated that apartheid, although not arising in a situation of armed conflict, had brought about a combat situation and that recognising apartheid as a grave breach would serve as a preventative measure likely to decrease the risk of war.29 Draper’s counter-argument was that such reasoning constituted an example of “that confusion between jus ad bellum and jus in bello, now based on racial considerations which nearly wrecked the Conference at its first session in 1974”.30
5.2.5 Conclusion
There are currently 174 parties to AP I but the drafting of Article 85 remains controversial and although the Netherlands has stated that it regards the offences contained in Article 85 as equivalent to the war crimes specified in the 1949 Geneva Conventions,31 this assertion of the customary status of the grave breaches regime in AP I is the exception rather than the rule.32 The fact that the crime of apartheid was not included in the statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) (or the International Criminal Tribunal for Rwanda (ICTR)) despite a request for it to be included from the ICRC33 is indicative of the controversy over the customary status of this war crime.
5.3 The ICC Statute and the Crime of Apartheid
5.3.1 Introduction
The crime of apartheid was not included in the list of crimes against humanity in the Draft Statute of the ICC produced by the Preparatory Committee on the Establishment of an International Criminal Court although the core concept undoubtedly falls within the concept of persecution on ‘political, racial, national, ethnic, cultural or religious’ grounds that was included in subparagraph (h) of proposed article Y (defining crimes against humanity).34 During the preliminary discussions, some delegations expressed a preference for including apartheid and other forms of racial discrimination as defined in the relevant conventions.35
Apartheid was, however, initially included in the possible options for the proposed definition of war crimes as an example of an outrage upon personal dignity.36 The records of the preliminary discussions reveal a clear disagreement on the customary status of AP I.37 While a clear majority of states considered AP I to be part of customary international law in the light of the number of ratifications of AP I, other key states (including some who have subsequently become parties to AP I) did not accept this assertion at the time that the ICC Statute was being drafted.38
5.3.2 The Inclusion of the Crime of Apartheid as a Crime Against Humanity
The absence of apartheid from the list of crimes against humanity was noted during the discussion of the draft Article 5—Crimes within the jurisdiction of the Court—in the context of the debate about whether crimes against humanity could be committed in times of peace as well as war. The Mexican representative indicated that apartheid should have been included in the list of crimes within the jurisdiction of the Court39 and the Irish representative noted that apartheid was the subject of a convention that did not require a link with times of armed conflict.40 The Chairman, summing up the discussion, observed that it had been suggested that the crime of apartheid should be added to the list of crimes against humanity within the jurisdiction of the Court.41 Support for the inclusion of apartheid into the list of crimes against humanity was also forthcoming from Bangladesh and Niger.42 Once the question of the inclusion of apartheid in the list of crimes against humanity had been raised, the South African delegation intervened to lead a coalition of primarily sub-Saharan African countries43 in ensuring its inclusion into the final draft. Notwithstanding South Africa’s unassailable moral authority due to its own painful national experience, the process of negotiating a consensus definition of the crime of apartheid was relatively protracted.44
The sub-group of delegates that worked on the consensus language did not consider themselves bound by the definition in the Apartheid Convention. At one level, the existence of the overarching threshold elements for a crime against humanity contained in the chapeau rendered much of the Apartheid Convention’s definition of the actus reus of the crime redundant. At another level, some states (particularly the United States) were anxious that the racist opinions and policies of private individuals or non-state bodies should not fall within the scope of the crime of apartheid due to concerns about freedom of expression. In deference to this, the crime of apartheid as defined in article 7(2)(h) of the ICC Statute requires the inhumane acts to be “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”. As Professor Robert Cryer notes, “it is difficult to envisage any crime covered under this definition that would not be caught under the customary definition of ‘persecution-type’ crimes against humanity or ‘other inhumane acts’ in Article 7(1)(k)”.45
5.3.3 Apartheid as a War Crime and the ICC Statute
During the discussions on the provisions concerning war crimes in the draft ICC Statute, 21 states expressed support for the draft version (option 2 under (p)) that included a reference to the practices of apartheid.46 Nine states expressly rejected the reference to “practices of apartheid and other inhuman and degrading practices involving outrages on personal dignity based on racial discrimination” in the list of war crimes.47 Costa Rica’s representative expressed a preference for “the broader formulation under option 1” (excluding the reference to the “practices of apartheid” in option 2) but, confusingly, also indicated that the specific elements of option 2 should possibly be considered separately.48 The proposal to include apartheid within the list of war crimes made by a group of six African states49 was not proceeded with and, consequently, there is no reference to the policies of apartheid in the list of war crimes in Article 8 of the ICC Statute.
In the absence of full travaux préparatoires for the ICC Statute (particularly the absence of the records of the separate working groups that drafted the definitions of war crimes and crimes against humanity), the reasons for failure to include apartheid within the list of war crimes in the ICC Statute will remain a matter of conjecture. Anecdotal evidence suggests two reasons for the absence. First, the hostility by some states to anything that might strengthen the argument that AP I constituted customary law should not be underestimated. Second, the inclusion of apartheid as a crime against humanity ensured that the agenda of those states that had always supported the criminalisation of apartheid was appropriately acknowledged.
Commentators who draw attention to the discrepancies between the war crimes listed in AP I and the war crimes contained in Article 8 of the ICC Statute tend to focus on the failure to include the wilful and unjustifiable delay in the repatriation of prisoners of war and civilian internees as the key omission in the ICC Statute.50 Sandoz submits that the inclusion of the crime of apartheid as a crime against humanity in the ICC Statute changes the language, but not the content, of the equivalent violation of AP I.51 Sandoz further submits that the “[p]ractices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” (Article 85(4)(c) of AP I) are probably covered by the general terminology used in Article 8(2), Part B (xxi) “Committing outrages upon personal dignity, in particular humiliating and degrading treatment”.52
5.3.4 Conclusion
The inclusion of apartheid as a crime against humanity in Article 7(1)(j) of the ICC Statute is significant for two reasons. First, it represents the first time that apartheid has been criminalised in a manner that is consistent with penal legality and certainty.53 Second, while Article 7(1)(j) almost certainly represents progressive development, “it could be argued that the ICC Statute has, however, contributed to recent formation of a customary rule on the matter”.54 By contrast, the failure to proceed with the proposal to include apartheid in the list of war crimes in the ICC Statute could be seen as weakening the argument that the practices of apartheid constitute a customary international war crime unless Article 10 of the ICC Statute can be invoked.55 Article 10 of the ICC Statute states:
Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.
As Schabas observes, Article 10 has been “largely ignored by the very bodies to which it is directed, namely specialised tribunals engaged in the interpretation of international law”.56 The current customary status of the crime of apartheid both as a war crime and as a crime against humanity is considered below in Sect. 5.6.
5.4 The ICRC’s Customary International Humanitarian Law Project
In 1996, the ICRC embarked on a major international study into current practice in international humanitarian law in order to identify the relevant customary law in the area. The ICRC’s Study on International Customary Law (the ICRC Study), published in three volumes in 2005, has been welcomed as a valuable contribution to the development of customary international humanitarian law but concerns have been expressed about its methodology.57 It is beyond the scope of this article to do justice to the vigorous debate over the methodological concerns beyond assessing the validity of the assertion that “[t]he practice of apartheid or other inhuman and degrading practices involving outrages on personal dignity based on racial discrimination” constitutes a war crime under customary international humanitarian law.58
The ICRC Study cites as authority the fact that “[t]his war crime is listed as a grave breach in Additional Protocol I”.59 The ICRC Study acknowledges the omission of the crime of apartheid from the list of war crimes in the ICC Statute but argues “such conduct would amount to a war crime as an outrage on personal dignity, as well as humiliating and degrading treatment”.60 The ICRC Study also states, in the application of international humanitarian law, apartheid is a crime under the legislation of numerous States. With a few notable exceptions,61 all the examples of national legislation cited involve the incorporation of either AP I or the ICC Statute into domestic law and the rather limited exceptions are all parties to the Apartheid Convention who were formerly members of the Eastern (Soviet) Bloc.
The ICRC Study notes that no practice was found in national case law62 or international judicial or quasi-judicial bodies63 to support the existence of the customary war crime of the “practices of apartheid”. The remaining practice cited relates to debates before the UN General Assembly (UNGA), various UNGA resolutions, UN Security Council resolutions and two resolutions adopted by the UN Commission on Human Rights in 1992 and 1993 declaring apartheid to be a crime against humanity.64 The ICRC Study also notes that section 5(i)(j) of UN Transitional Administration in East Timor Regulation No. 2000/15 includes “the crime of apartheid” in the list of crimes against humanity over which the panels established by the Regulation have exclusive universal jurisdiction.65
Although, there is a case for arguing that apartheid as defined in Article 7(1)(j) of the ICC Statute is evolving into a customary crime against humanity, it is more difficult to argue that the practices of apartheid constitute a customary international war crime given failure to include a reference to the crime of apartheid within the list of war crimes contained in the ICC Statute and the controversy over the drafting of the grave breaches regime in AP I. Given the clear distinction between the categories of war crimes and crimes against humanity,66 it is disappointing that the ICRC Study’s evidence for the existence of a war crime of the practices of apartheid under customary international humanitarian law is primarily related to state practice declaring apartheid to be a crime against humanity.
5.5 Israel and the Crime of Apartheid
5.5.1 Introduction
The term apartheid is used loosely in a number of non-legal contexts to emphasise the seriousness of various inequalities. Increasingly, the paradigm of apartheid has also been applied in relation to Israel.67 Since 2005 an annual “Israeli Apartheid Week” has been held on university campuses (and in other civic spaces) to raise awareness about Israel’s policies, although these events have occasionally drawn accusations of anti-Semitism. The application of the apartheid paradigm in relation to Israel’s policies and practices towards Palestinians in the Occupied Territories has recently crossed the divide between rhetorical device and legal analysis.
5.5.2 Israel and the Apartheid Paradigm—The Legal Dimensions
In 2007 Professor John Dugard, in his capacity as UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, concluded that elements of the Israeli occupation constituted forms of colonialism and apartheid, which are contrary to international law.68 Dugard also noted:
the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid appears to be violated by many practices, particularly those denying freedom of movement to Palestinians.69
In 2010 Professor Richard Falk, Dugard’s successor as UN Special Rapporteur, likewise concluded that Israeli policies in the West Bank and East Jerusalem exhibited “features of colonialism and apartheid, as well as transforming a de jure condition of occupation into a circumstance of de facto annexation”.70 Falk, with reference to Article 7 of the ICC Statute, also noted that “apartheid has come to be formally treated as a crime against humanity”71 To support the factual basis for his assertions, Falk made reference to a 300-page report from the Human Sciences Research Council (HSRC) of South Africa released in May 2009 (written by an international team of scholars and practitioners of international law) concluding that Israel is practising both colonialism and apartheid in the Occupied Palestinian Territories (OPT).72 In his final presentation to the Human Rights Council in January 2014, Falk analysed in greater depth whether the continuing occupation of Palestine by Israel constituted apartheid.73
In their recent article in the European Journal of International Law, Dugard and Reynolds are careful to limit their analysis of the applicability of the international legal prohibition of apartheid in the context of Israeli law and practice in the Occupied Palestinian Territories to “the responsibility of the Israeli state under norms of public international law, as opposed the responsibility of its individual agents under international criminal law”.74 Dugard and Reynolds do acknowledge that individual criminal responsibility could arise if state responsibility for a breach of apartheid is prima facie established,75 but their reliance on the definition of apartheid in the 1973 Apartheid Convention and the ICC Statute is premised on the absence of a definition of apartheid in the 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
5.5.3 The Importance of Distinguishing Between Civil and Criminal Obligations
When discussing the concept of apartheid in relation to Israel’s policies towards the Palestinians, it is important to distinguish between a general (civil) obligation owed by the State of Israel not to engage in systematic racial discrimination and potential criminal liability for individual Israeli citizens as a result of enforcing any Israeli policies towards the Palestinians that can fairly be characterised as apartheid. With regard to the former, Israel—not least because it is a party to ICERD76—is obliged to “condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under [its] jurisdiction”.77 In May 2012, the Committee on the Elimination of Racial Discrimination (CERD) urged Israel to prohibit and eradicate all policies of racial segregation and apartheid which severely and disproportionally affected the Palestinian population in the Occupied Palestinian Territories and which violated the provisions of Article 3 of ICERD.78
5.5.4 Conclusion
Israel is not a party to either the Apartheid Convention, AP I or the ICC Statute and consequently is not under an obligation to incorporate the conventional crimes of apartheid into its domestic law. Criminal liability for individual Israeli citizens for carrying out the policies condemned by the CERD in 2012—in the absence of a successful Palestinian ratification of the ICC Statute79 or AP I80—will depend, in the first instance, on the current customary status of the various international attempts to criminalise apartheid.
To the extent that apartheid constitutes either a customary international crime against humanity and/or a war crime under customary international humanitarian law, it does not appear that Israel can be regarded as a persistent objector to the international criminalisation of apartheid particularly as a crime against humanity. Israel voted in favour of the adoption of the draft 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (the 1968 Convention) that refers to apartheid as a crime against humanity81 and Judge Eli Nathan, Head of the Israeli delegation at the drafting of the ICC Statute, in his statement explaining Israel’s negative vote in relation to the adoption of the ICC Statute, made it clear that but for the inclusion of Article 8(2)(b)(viii)—the transfer of the population of an occupying power into the territory it occupies or deporting the existing population from the occupied territory—his delegation “would have been proudly able to vote in favour of adopting the Statute”.82 Although Nathan also indicated that Israel had other problems with the ICC Statute which they would address at the appropriate time, given Israel’s positive vote for the adoption of the 1968 Convention, it seems inconceivable that this would include the crime of apartheid.83
5.6 Assessing the Customary Status of the Crime of Apartheid
5.6.1 Introduction
Given the generally non-binding nature of UNGA resolutions, there are three possible origins of a customary international crime of apartheid, namely, the 1973 Apartheid Convention, Article 85(4)(c) of AP I and Article 7(1)(j) of the ICC Statute.
5.6.2 The Customary Status of the 1973 Apartheid Convention
Whilst there is some academic support for the existence of a general customary crime of apartheid based on the 1973 Apartheid Convention,84 there are two key problems with this assertion. First, Article II of the Apartheid Convention limits the geographical scope of the Apartheid Convention to “policies and practices of racial segregation and discrimination as practised in southern Africa”. Supporters of the contention that the Apartheid Convention applies beyond the geographical limits of southern Africa,85 tend to rely on statements made by the representatives of Australia, Cyprus and the United States during the drafting process.86