Apartheid as an Instance of Breach of the Principle of Prohibition of Discrimination Regarding the Palestinian Issue

Abstract

Discrimination is known as an internationally wrongful act. The prohibition of discrimination as a jus cogen in international law is a necessity to protect human rights and fundamental freedoms and guarantee people's dignity, and even in some cases, to maintain international peace and security. Therefore, the principle of prohibition of discrimination plays a prominent role in the international human rights system. The Geneva Conventions of 1949 and their Additional Protocols of 1977 contain provisions that clearly prohibit "adverse effect discrimination" against persons affected by armed conflicts and occupation, and require equal behavior between certain categories of persons, such as the wounded and the sick, and this is the first step to consider apartheid a war crime. Secondly, the human pain caused by the political ideology of apartheid in South Africa lasting 1948 to 1994, which raised international condemnation and a variety of diplomatic and legal responses, led to the adoption of the 1973 UN Apartheid Convention in 1973 in which apartheid was considered as a crime against humanity, while in the Article 85 Paragraph (4) (c) of the Additional Protocol I (AP I), it was a war crime. These international reactions did not stop even after the end of the apartheid era, so in 1998, apartheid was included as an instance of crimes against humanity in the Statute of the International Criminal Court (ICC). Furthermore, paragraph 1 of Article 86 AP I, which obliges parties to repress grave breaches of the Protocol, ensures that apartheid has been included as a war crime in the domestic criminal laws of many countries, and the demise of apartheid in South Africa has not changed this. In fact, it is the increasing (but contested) use of the term apartheid in Israeli laws and actions in the Occupied Palestinian Territories (OPT) that led to individual criminal prosecution in this context. In other words, although the inclusion of the Apartheid Convention on Israel's actions faces challenges, there are no such restrictions regarding the provisions of AP I.