The direct application of customary international law as a basis to prosecute core international crimes: Recent developments in, and lessons from South Africa Event
- Time:
- Date:
- 2025-12-03 12:00:00
- Venue:
- 4/2055 (Law staff common room)
Event details
Apartheid, the system of racial domination and oppression that was practised in South Africa until 1994, is a wrong under international treaty law (notably, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the 1973 Apartheid Convention) and most commentators agree that it is also a wrong under customary international law. The Apartheid Convention, which is a hybrid human rights-penal treaty, also criminalises apartheid under international law. Apartheid is furthermore listed as a crime against humanity under the Rome Statute of the International Criminal Court.
The question of whether the wrong of apartheid’s customary status, rather than written law via criminal statute, can serve as the basis for a prosecution in a domestic criminal court has recently been addressed in South Africa. The 14 April 2025 ruling by the high court in Johannesburg, in the historic first prosecution of two individuals for the crime of apartheid under customary international law, concerns various important issues, two of which are of relevance for the direct application of international criminal law in domestic courts. First, the question of whether apartheid has crystalised as a crime under customary international law at the time of alleged commission of the underlying criminal acts alleged in the indictment, namely February 1982. Second, whether the long delay in the prosecution of the alleged crimes constitutes a barrier to prosecution under the applicable statute of limitation. The first issue is of particular importance for the development of state practice on customary international criminal law pertaining to the crime against humanity of apartheid.
This presentation puts the doctrinal and procedural issues in a broader context – the debate on how to deal with colonial and historical atrocities. The direct application of customary international (criminal) law is contentious even though it is viewed as a tool to fight impunity; to ‘pierce the colonial veil’. This raises doctrinal and normative questions, not least of all the principle of legality – nullum crimen sine lege – which is a foundational principle in criminal law and protected under domestic and international human rights law.
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Gerhard Kemp is professor of criminal law at UWE Bristol, UK, and extraordinary professor of public law at Stellenbosch University, South Africa. He has published widely on international and comparative criminal law and serves on the board of editors of The Journal of International Criminal Justice (OUP). Recent publications on the topic at hand include:
- G Kemp & W Nortje, “Prosecuting the crime against humanity of apartheid. The historic first indictment in South Africa and the application of customary international law” 21 (2023) Journal of International Criminal Justice, 405-430
- G Kemp & V Kattan, “The significance of South Africa’s accession to the 1973 Apartheid Convention and suggestions for improving the treaty text”, 31 May 2024, Opinio Juris
- G Kemp, “Criminal court in South Africa confirms charges in historic first prosecution of the crime against humanity of apartheid”, 29 April 2025, Opinio Juris