Apartheid Accountability Call at the African Commission on Human and Peoples’ Rights

Contact: Wendy Isaack, MADRE

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Victims’ Advocates and International Experts Urge Action on New Treaty

Banjul, The Gambia – “Imagine that one of every four to five persons around you has been arrested, imprisoned and traumatized,” said Dr. Munir Nuseibah, Director of the Al-Quds Human Rights Clinic at Al-Quds University School of Law, describing the unlawful administrative detention and other rights violations that he and fellow Palestinians suffer. “This system depends on oppression at all levels,” he added, calling for the global community to acknowledge Palestinian victims of Israeli apartheid.

Dr. Nuseibah was speaking at an event on the sidelines of the African Commission on Human and Peoples’ Rights (ACHPR), Africa’s regional human rights mechanism, which is holding its 85th Ordinary Session in Banjul, The Gambia. At the 19 October event, “Recognizing Apartheid Victims in the UN Draft Treaty on Crimes Against Humanity,” advocates and legal experts raised concerns about the definition of apartheid in the proposed treaty on crimes against humanity (CAH) currently being negotiated at the United Nations (UN).

The advocates informed attendees that the draft treaty codifies apartheid using an outdated definition that could exclude victims, including Palestinians, from recognition. They also called for treaty negotiators to account for the long record of impunity for apartheid and its multifaceted harms in South Africa and Namibia.

Addressing the ACHPR on 23 October, Lawyers for Human Rights, a South African human rights organization, echoed the concerns on behalf of the collective that organized the panel. They observed that “[i]n South Africa and Namibia, apartheid was not just a legal concept, it was a lived reality with consequences that continue for those communities that were its targets, and for black women especially.” She added, “Today, Palestinians continue to face structural racist oppression. How we define apartheid now will shape who qualifies for redress.”

Ntokozo Sibanyoni, Legal researcher, Centre for Human Rights at the University of Pretoria, emphasized at the 19 October panel that black women in South Africa and Namibia were “treated as second class citizens by misogynistic apartheid laws.” She called for discussions on the draft treaty to “consider the inter-generational effects of apartheid regimes, to ensure that the silence and impunity that met women and child victims in Southern Africa is not repeated elsewhere.”

Yvonne Dausaub, former Minister of Justice of Namibia, drew comparisons during the panel between Palestinian and Namibians’ experiences of dispossession and lack of justice. She recalled the massacres and other violence used to enforce apartheid-era forced removals in Namibia. “Many of our people owned property when they were forcibly relocated,” she said. “They were then forced to rent property from the apartheid administration.”

Lisa Davis, professor at CUNY School of Law and Special Adviser on Gender and Other Discriminatory Crimes to the International Criminal Court’s Office of the Prosecutor explained that the outdated definition of apartheid stems from understandings of race in decades-old treaties. “Unlike international human rights law, which recognizes race as a social construct, international criminal law understandings of ‘racial groups’ under apartheid and genocide rely on debunked biological determinations,” said Davis. “This contributes to the exclusion of victims, including Palestinians, from access to justice because it becomes an excuse not to recognize what we all know is apartheid.”

Human rights defenders attending the panel emphasized the need for African states to include the voices and participation of victims of ongoing discriminatory crimes against humanity across the African continent in the CAH treaty negotiations.

“Discussions on the draft treaty are a place to warn the world of the harmful legacy of discriminatory crimes against humanity and to call for states to commit to a treaty that facilitates redress and reparations for victims,” said Wendy Isaack, Human rights lawyer & senior expert in gender justice and international law at MADRE.

“For Palestinian victims to receive recognition and holistic reparations for discriminatory oppression, perpetrators must be held accountable for present injustices as well as for injustices that started well before October 2023. Clarifying that the new treaty’s apartheid provision includes recognition of present-day victims, such as Palestinians, would be an important step forward.”