The Daily Maverick
21 February 2020
South Africa is a young democracy, but the unfinished business of apartheid remains a pressing priority for the state. South Africa’s embarrassing and often unlawful stance on international crimes has received worldwide attention.
Apartheid (Afrikaans for “separateness”) describes the system that committed acts of racial discrimination, oppression, mass violence and murder in order to protect the white supremacy in South Africa from 1948 to 1994.
FW de Klerk, the last president of apartheid South Africa, who was jointly awarded the Nobel Peace Prize together with former President Nelson Mandela made an unfortunate appearance on TV where he stated that apartheid was not a crime against humanity. While the damage had already been done, the FW de Klerk Foundation further amplified this with a statement on 14 February stating that the idea that apartheid was a crime against humanity was an idea propagated by communist political propaganda.
As a result of the brouhaha, the Economic Freedom Front (EFF) seek to rescind the Nobel Peace Prize from De Klerk. Interestingly, the Norwegian Nobel Committee has never considered rescinding the prize from any Nobel Laureate. Even though both statements were subsequently retracted, questions remain about where South Africa stands in terms of its fight against impunity for international crimes and on reconciliation.
The Southern Africa Litigation Centre (SALC) stands with the Desmond and Leah Tutu Legacy Foundation in its declaration that it is irresponsible for the FW De Klerk Foundation to debate the degree of the awfulness of apartheid. We recognise that the offending statement has been withdrawn, but such offensive sentiments have no place in democratic South Africa. We question the relevance and utility of the FW de Klerk Foundation as a nation-building entity.
Apartheid is a Crime against Humanity
The crime of “crimes against humanity” covers various offences including murder, enslavement, rape as well as the crime of apartheid. The fact of those offences having a connection to a widespread or systematic attack against any civilian population is what makes them a crime against humanity. Not only does apartheid constitute a separate offence under the crime of “crimes against humantity; but also a brutal system of oppression that qualifies as a widespread or systematic attack against any civilian population. International law recognised apartheid as a crime against humanity from the mid-1950s onwards. The United Nations General Assembly regularly condemned apartheid as contrary to the Charter of the United Nations from 1952 until 1990; and it was regularly condemned by the United Nations Security Council after 1960. In 1966, the UN General Assembly labelled apartheid as a crime against humanity, condemning the policies of apartheid practised by the Government of South Africa as a crime against humanity which was later endorsed by Security Council.
In 1973, The Convention on the Suppression and Punishment of the Crime of Apartheid was adopted and codified that apartheid was not only unlawful because it violated the Charter of the United Nations but also declared apartheid to be criminal. Today, apartheid constitutes a separate crime against humanity under the Rome Statute of the International Criminal Court. South Africa implemented the Rome Statute by passing domestic legislation with The Implementation of the Rome Statute of the International Criminal Court Act which came into effect on 16 August 2002. This long-standing history of the recognition of crimes against humanity and the crime of apartheid in international law serve as the legal basis to prosecute crimes committed by the apartheid system in the 1970s and 1980s and beyond.
Why does the characterisation of Apartheid as Crime against Humanity matter?
Ahmed Timol, Steve Biko and Neil Aggett are the well known names of persons that died in police custody during apartheid. There are many more who were persecuted, discriminated against, abducted, disappeared and tortured. Ahmed Timol’s murder took place 48 years ago. This long duration of time is one of the reasons why a characterisation of apartheid as a crime against humanity is so crucial. The recognition of apartheid as crime against humanity allows the National Prosecuting Authority (NPA) to initiate investigations and prosecutions into alleged crimes that were conducted as part of the apartheid system such as the persecution of black people or the torture of anti-apartheid activists in detention. The South African Criminal Procedure Act explicitly states that there is no time limitation to initiate prosecutions for crimes against humanity. Even a single murder can suffice to meet the legal requirements of a crime against humanity.
Another aspect of the importance to characterise apartheid as a crime against humanity is to show the systematic and/or widespread nature of this system that negatively affected the lives of thousands of South Africans. While crimes against humanity do entail an individual criminal liability, the nexus to a widespread and/or systematic attack against any civilian population shows that the alleged offence was not only the wrongdoing of one individual person but rather by a comprehensive system. In pursuit of truth and national healing, we need to see justice and accountability for all the people murdered, tortured and disappeared by the apartheid government. Prosecutions play a significant role in the healing process of a nation. Catergorising apartheid as a criminal system of oppression and discrimination is not only important for the current discourse, but also for future generations who might not have the benefit of contemporary witnesses and testimony.
How does South Africa enforce its international obligations in respect of crimes against humanity and other international crimes ?
South Africa is a young democracy, but the unfinished business of apartheid remains a pressing priority for the state. South Africa’s embarrassing and often unlawful stance on international crimes has received worldwide attention. While the NPA starts investigating and prosecuting cases like the disappearance of anti-apartheid activist Nokuthula Simelane (trial to commence in October 2020), Ahmed Timol or Neil Aggett, there is still a long way to go in order to fight against impunity of individuals in the former security branch of the apartheid system. With regards to the persons who are charged with or have been convicted of international crimes, the South African government has shown an unwillingness to either prosecute domestically or arrest for hand over to other states or the International Criminal Court for prosecutions. South Africa’s refusal in 2015 to arrest former Sudanese President Omar al-Bashir during his attendance of an African Union Summit in Johannesburg is a stark reminder of the country’s willingness to facilitate impunity and disrespect for the rule of law. Al Bashir is wanted by the International Criminal Court for crimes against humanity, war crimes and genocide. The case of the former head of Rwandan intelligence, Kayumba Nyamwasa, from June 2010 is another situation where South Africa shielded a person implicated in the commission of egregious crimes and is the subject of various extradition requests by granting him refugee status. Nyamwasa continues to reside in South Africa. Dutch war criminal Guus Kouwenhoven has been convicted for complicity in war crimes during the presidency of Charles Taylor in Liberia. The Netherlands requested Kouwenhoven’s extradition in December 2017 so that he can serve his 19-year sentence. South Africa issued him with a visa and he continues to reside in Cape Town.
The fight against impunity for international crimes requires a solid legal basis. In the case of apartheid, this foundation has been prepared by a long history of international condemnation, codification and classification as crime against humanity. However, this foundation is only the first step.
The inaction of the NPA to pursue individuals who were not granted amnesty by the Truth and Reconciliation Commission is unfortunate. The South African government’s resistance and reluctance to prosecute or extradite international criminals illustrates how crucial the implementation and application of existing domestic and international law continues to be. South Africa’s ongoing attempts to withdraw from the International Criminal Court is a display of contempt for accountability and the rule of law. This points to a catastrophic failure of leadership. DM
Kaajal Ramjathan-Keogh is Executive Director, Southern Africa Litigation Centre
South Africa, Apartheid, Crimes against humanity and the Rule of Law: Quo Vadis?