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The Case for the Prosecution of Apartheid Criminals in Canada

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The Case for the Prosecution of Apartheid Criminals in Canada THE CASE FOR THE PROSECUTION OF APARTHEID CRIMINALS IN CANADA MUNYONZWE HAMALENGWA A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES, IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONT ARIO MAY2013 © MUNYONZWE HAMALENGWA, 2013 ABSTRACT Given what happened in South Africa in support of apartheid, this dissertation explores the various approaches to justice that have been, and might be employed to deal with the enormity of the crimes committed. The notion of universal jurisdiction is explored as a way of expanding the discussion to include not just actions to be taken in South Africa but also possible action that could be taken by other countries. The dissertation looks at what was done and not done, particularly by the United Nations and Canada during the apartheid era and after and as well in South Africa after the ending of apartheid. In this context it discusses the Truth and Reconciliation Commission, its structure, actions and shortcomings. It looks at the United Nations efforts, analyzing the genesis and import of the various declarations, principles and conventions that deal with either crimes against humanity in general and apartheid related crimes in particular. In this context, it also looks at the various war crimes/crimes against humanity trials that have been or are in progress. Finally, it looks at Canada as a case study. The focus is Canada's various responses to crimes against humanity. The dissertation discusses not only what Canada has done and not done, but what it could and might do. In each case, South Africa, the UN and Canada, an historical account is presented. In the Canadian case, this is followed by a discussion of case law relevant to any future prosecution, deportation or extradition. The dissertation then looks at the reasons for action and inaction by Canada on various war crimes/crimes against humanity. It draws 11 fl i 11 attention to the importance of political pressure, and m this context considers the implications of moral panic. The dissertation concludes by pointing out the lack of adequate response to the crime of apartheid, notwithstanding developments in South Africa and the United Nations. In the Canadian case, it concludes that there is ample precedent for using universal jurisdiction. 111 DEDICATION "Some day, justice will be done. Let us hope that it will not be visited on the innocent" Steve Biko quoted as saying this by Denzel Washington in the movie, Cry Freedom. For Nelson Mandela For your leadership in the struggle against apartheid and for the inspiration and interest you induced in me in the struggle for justice, and particularly South African justice, especially during the dark days of apartheid. For Professor McCormack Smyth For your everlasting support and guidance. May you forever rest in peace. For Anne Stretch For your incredible good natured personality and friendship. May you forever rest in peace. IV ACKNOWLEDGEMENTS The South African project has been a long life endeavour for me. Ever since I read Nelson Mandela's book, No Easy Walk to Freedom when I was a young boy, Mandela became a hero to me. When I was a young University of Zambia student leader I was detained without charge or trial for advocating freedom of thought and speech and for the liberation of Southern Africa. While in detention I surrounded my bed with cut-out photos and articles of and on Nelson and Winnie Mandela. After I came to Canada, I was one of the founders of the York Student Movement Against Apartheid in which we demonstrated against government, university and corporate investment in Apartheid South Africa. At law school, I founded the Nelson Mandela Law Society (NMLS) for the purpose of advocating for the demise of apartheid in South Africa. After I graduated from law school in 1989, NMLS was transformed into the Black Law Student Association of Canada (BLSAC) which eventually led to the formation of the Canadian Association of Black Lawyers (CABLE). At the time I founded the NMLS, there was no campus-based black student organization in Canada. The Nelson Mandela Law Society sponsored numerous conferences on Apartheid South Africa and other issues at Osgoode Hall Law School and York University between 1986 and 1989. The Nelson Mandela Law Society convinced the Dean of Osgoode Hall Law School, James MacPherson (now Justice MacPherson of the Ontario Court of Appeal) to grant Nelson Mandela an Honorary Doctorate of Laws in 1989, my graduation year. This was before v anyone knew that Mandela would ever be released from prison. Nelson Mandela picked up the Doctorate when he visited Toronto in June 1990 shortly after his release. I was also one of the founding members of Lawyers Against Apartheid, a group that was formed in Ottawa. In 1996, I founded the Nelson Mandela Academy of Applied Legal Studies which trained paralegals to go out into the community to fight for the legal rights of economically disadvantaged people. Some of the students and graduates found their way to law schools. It therefore is not surprising that my dissertation is dedicated to Nelson Mandela. He has inspired me to fight for justice even if sometimes it is merely demonstrating in the streets, writing articles and pamphlets or this dissertation. My supervisory committee will no doubt have contributed significantly to the achievement of completing this project and without the committee I would have no one to thank. I am grateful, particularly to my Supervisor Liora Salter for her constant and consistent encouragement and undying support. She shaped the organizational format and presentation of this thesis. She meticulously organized a new committee at the end of the process for which I thank her most profusely. I thank Charles Mwewa and Lucy Venturino for their incredible computer skills and controls at the key board and without whom this product would not be in the good shape or paper that it is hopefully in. I also thank others who have helped with technical support on this project, you all know who you are. To the people of South Africa, you have provided me an abiding hope in the resilience of the human spirit, the tenaciousness to fight and to enjoy the freedom, the music and the beauty of South Africa. Vl TABLE OF CONTENTS Abstract p. ii Dedication p. iv Acknowledgments p. v Table of Contents p. vii Introduction p.1 Chapter Outline p. 4 CHAPTER ONE: THE CRIME OF APARTHEID p. 10 1.1 Introduction p. 10 1.2 The Crime of Apartheid p. 25 1.3 Forced Mass Removals and the Bantustans p. 35 1.4 Repression in the Bantustans p. 36 1.5 Crime of Apartheid in Namibia p. 38 1.6 Repression and Liberation Movements in Southern Africa p. 39 1. 7 The Application of Law of Prosecutions p.43 1. 7 .1 Penal Responsibility for the Crime of Apartheid p. 43 1.8 Conclusion p. 44 CHAPTER TWO: THE UNITED NATIONS AND THE CRIMINALISATION OF APARTHEID IN INTERNATIONAL LAW p. 45 2.1 Introduction p.45 2.2 Apartheid in South Africa: The United Nations Involvement p. 45 2.3 Apartheid as a Crime in Conventional International Law p. 48 2.4 Nazi War Crimes p. 53 2.5 The Recharged International Criminal Law p. 56 2.6 Conclusion p. 58 CHAPTER THREE: THE TRUTH AND RECONCILIATION COMMISSION AND THE PROSECUTION OF APARTHEID CRIMINALS IN SOUTH AFRICA p. 60 3.1 Introduction p. 60 3.2 The Truth and Reconciliation Commission p. 63 3.3 Limitation on Ambit of Accountability p. 73 3 .4 The Basson Case p. 77 3.5 The P.W. Botha Case p. 79 3.6 Conclusion p. 84 Vll CHAPTER FOUR: COULD THERE BE AN INTERNATIONAL TRIBUNAL FOR THE CRIME OF APARTHEID? p. 85 4.1 Introduction p. 85 4.2 The International Convention of the Suppression and Punishment of the Crime of Apartheid p. 86 4.3 An International Tribunal for the Crime of Apartheid p. 88 4.4 The International Criminal Tribunal for Rwanda p. 89 4.5 Jurisprudence oflnternational Tribunals p. 91 4.6 Problems with International Tribunals p. 93 4. 7 Application to the Crime of Apartheid p. 95 4.8 Conclusion p. 97 CHAPTER FIVE: UNIVERSAL JURISDICTION, AND THE PROSECUTION OF INTERN A TI ONAL CRIMES p. 98 5.1 Introduction p. 98 5.2 Introduction to the Concept of Universal Jurisdiction p. 99 5.3 The Law and Politics of Universal Jurisdiction p. 111 5.4 The United Nations and Universal Jurisdiction p. 112 5.5 Studies by the UN Secretariat and Expert Bodies p. 114 5.6 Commissions oflnquiry p. 115 5.7 Africa and Universal Jurisdiction p.116 5.7.1 The Demjanjuk Case p. 120 5.7.2 The Eichmann Case p. 121 5.7.3 The Pinochet Case p. 123 5.7.4 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium, also known as the Yerodia Case) p. 127 5.8 Civil Actions Against Corporations and Universal Civil Jurisdiction p. 129 5.9 Conclusion p. 133 CHAPTER SIX: THE HISTORY AND POLITICS OF WAR CRIMES LEGISLATION AND PROSECUTION IN CANADA, 1945-2005 p.135 6.1 Introduction p. 135 6.2 The Moral Panic p. 136 6.3 The Definition of Moral Panic p.139 6.4 Historic Opportunities and International Climate p. 145 6.5 The Cold War Panic p. 149 6.6 The Second Wave: Continuing Political Pressure p. 153 6. 7 Statements in Chronological Order p. 155 6.8 The Deschenes Commission p.158 6.9 Post-Legislation Prosecution and Litigation p.
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