The Obligation to Criminalise Apartheid and its (Lack of) Implementation in Italy

Apartheid, historically associated with South Africa’s regime of institutionalised racial domination, has long been condemned by the international community as a grave violation of human dignity and is now widely regarded as prohibited under peremptory international law. In recent years, the concept has re-emerged in international legal debates, raising renewed questions about the criminal responsibility of individuals and the corresponding obligations of States. This chapter examines whether international law requires States to criminalise apartheid and whether such an obligation binds Italy. It analyses the relevant legal framework, including Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, the 1973 Apartheid Convention, the Rome Statute of the International Criminal Court, and developments in customary international law. The chapter argues that, although Italy did not ratify the Apartheid Convention, an obligation to criminalise apartheid can nonetheless be derived from the Rome Statute and from customary international law. The chapter then assesses the Italian legal framework and concludes that, despite the ratification of the Rome Statute, Italian criminal law does not currently provide a specific offence capable of capturing apartheid as a crime against humanity. While several underlying acts are punishable under ordinary criminal provisions, these fail to reflect the defining contextual element of apartheid as an institutionalised regime of systematic racial domination. The chapter therefore highlights the need for legislative reform and discusses the proposed Italian Code of International Crimes as a possible solution to ensure full compliance with international obligations.