While the Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) which declares apartheid a crime against humanity and which defines what the crime covers, amongst other things, has not been ratified by post 1994 SA – apartheid is nonetheless featured as a category of crime against humanity both in terms of the Rome Statute of the International Criminal Court and customary international law (Geneva Conventions). Evidence of the fact that since its coming into force on 18 July 1976 the Apartheid Convention has been ratified by 107 countries, is a very compelling gauge in terms of international condemnation of apartheid as a crime against humanity.
In furtherance of the 1977, ‘Additional Protocol I of the Geneva Conventions Act of 1949’ which in article 85, paragraph 4 (c) recognizes apartheid as a ‘grave breach’ of the Protocol – South Africa (SA) has passed the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002) (the ICC Act). It must be pointed out that the ICC Act already makes provision for an exhaustive structure of reference to investigate and prosecute genocide, war crimes and crimes against humanity and by extension apartheid as a crime against humanity. To circumvent challenges regarding areas where the two statutes overlap, the Geneva Conventions Act in section 9 makes provision that it shall not ‘limit, amend, repeal or otherwise alter any provision of the ICC Act’.
In the context of international law which has been legislated upon by SA (Geneva Conventions Act in relation to the Rome statute) – that apartheid is a crime against humanity, is accordingly South African law.