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Apartheid, South Africa and International Law

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Apartheid, South Africa and International Law APARTHEID, SOUTH AFRICA AND INTERNATIONAL LAW Selected Documents and Papers Edited by Enuga S. Reddy [This collection of documents and papers was published by the United Nations Centre against Apartheid in its Notes and Documents Series, No. 13/85, in December 1985.] CONTENTS INTRODUCTION CONTRIBUTORS I. DECLARATION OF THE SEMINAR ON THE LEGAL STATUS OF THE APARTHEID REGIME AND OTHER LEGAL ASPECTS OF THE STRUGGLE AGAINST APARTHEID (Lagos, 13-16 August 1984) II. REPORT OF THE UNITAR COLLOQUIUM ON THE PROHIBITION OF APARTHEID, RACISM AND RACIAL DISCRIMINATION AND THE ACHIEVEMENT OF SELF-DETERMINATION IN INTERNATIONAL LAW (Geneva, 20-24 October 1980) III. APARTHEID AS AN INTERNATIONAL CRIME A. State criminality in South Africa, by Albie Sachs B. State terrorism in South Africa, by I. E. Sagay C. International law and the liquidation of apartheid, by Kader Asmal IV. LEGAL STATUS OF THE APARTHEID REGIME AND THE NATIONAL LIBERATION MOVEMENTS A. Is South Africa an independent State? by Albie Sachs B. The legal status of national liberation movements (with particular reference to South Africa), by Kader Asmal V. STATUS OF CAPTURED FREEDOM FIGHTERS The laws of armed conflict and apartheid, by Keith D. Suter VI. BANTUSTANS Self-determination and the “independent bantustans,” by Niall MacDermot VII. INTERNATIONAL ACTION AGAINST APARTHEID A. Legal strategies in the struggle against apartheid, by Gay J. McDougall B. Certain legal aspects of the international campaign against apartheid, by Kader Asmal C. Some remarks on responsibility for the crime of apartheid under international law, by G. Brahme Annexes I. International Convention on the Suppression and Punishment of the Crime of Apartheid II. Extracts from declarations and resolutions of the United Nations General Assembly and the Security Council INTRODUCTION Apartheid is now generally recognised as a flagrant violation of international law, indeed an international crime. International law has, therefore, become an important instrument in the struggle for the elimination of apartheid. The Charter of the United Nations, the Universal Declaration of Human Rights and other conventions and declarations of the United Nations and its family of agencies, judgements and opinions of the International Court of Justice and reports of the International Law Commission have created new norms of international law against apartheid, which are of wider significance. The consideration of the racial problem in South Africa by the United Nations General Assembly since 1946, and by other United Nations organs and inter-governmental organisations since then, has contributed substantially to these new norms. Moreover, authoritative organs of the United Nations have repeatedly condemned the actions of the racist regime of South Africa, such as racial discrimination, segregation and repression in the country, continued occupation of Namibia and acts of aggression and terrorism against neighbouring States as violations of the Charter of the United Nations and of international law. They have also denounced the so-called “independence” of bantustans created by that regime and the new racist constitution enforced by it in the rest of South Africa in 1984 as null and void. The legitimacy of the racist regime in South Africa has been placed in question, the legitimacy of the struggle for the elimination of apartheid has been recognised, and the national liberation movements of South Africa and Namibia have acquired international status. The United Nations Special Committee against Apartheid has played a significant role in promoting these developments and gave special attention to publicising the international law aspects of apartheid as a means to reinforce the international efforts for the elimination of apartheid. It organised a hearing of legal experts in New York in March 1981 and an international seminar on “the Legal Status of the Apartheid Regime and Other Legal Aspects of the Struggle against Apartheid” in Lagos in August 1984. I have prepared this compilation of selected documents and papers in order to assist in making more widely known the implications of the new norms of international law for the struggle against apartheid. Many of the papers had to be drastically condensed in order to avoid undue duplication and limit the length of the compilation. I wish to express my gratitude to the Chairman of the Special Committee against Apartheid, H.E. Major-General Joseph N. Garba (Nigeria), for encouraging me to undertake this task, and a number of international lawyers and others - particularly Mr. Kader Asmal - for their advice. (Signed) Enuga S. REDDY Senior Fellow New York United Nations Institute August 1985 for Training and Research CONTRIBUTORS Kader Asmal is a Senior Lecturer in Law and Dean of the Faculty of Arts (Humanities) at Trinity College, Dublin, and Chairman of the Irish Anti-Apartheid Movement G. Brahme is a Professor at Karl Marx University in Leipzig, German Democratic Republic Niall MacDermot is the Secretary-General of the International Commission of Jurists, Geneva Gay J. McDougall is the Director of the Southern Africa Project, Lawyers’ Committee for Civil Rights under Law, Washington, D.C. Albie Sachs, a former Advocate of the Supreme Court of South Africa, is a Senior Lecturer in Law at the University of Southampton and Visiting Professor of Law at the Eduardo Mondlane University, Maputo, Mozambique I. E. Sagay is a Professor of Law at the University of Benin, Nigeria Keith D. Suter is a Lecturer in Politics and Economics, and Co-ordinator of Studies, at Wesley College, University of Sydney, Australia. I. DECLARATION OF THE SEMINAR ON THE LEGAL STATUS OF THE APARTHEID REGIME AND OTHER LEGAL ASPECTS OF THE STRUGGLE AGAINST APARTHEID (Lagos, 13-16 August 1984) Introduction The international Seminar on the Legal Status of the Apartheid Regime and Other Aspects of the Struggle against Apartheid was organised by the United Nations Special Committee against Apartheid in co-operation with the Federal Military Government of Nigeria. The Seminar brought together jurists and social scientists from a number of countries in Africa, Europe, North America and Asia, representing the principal legal systems of the world. The Seminar was opened by H.E. Major-General J. N. Garba, Chairman of the Special Committee against Apartheid, and heard addresses from H.E. Dr. Ibrahim A. Gambari, Minister for External Affairs of Nigeria, H.E. Mr. Ibrahima Fall, Minister for Higher Education of Senegal and H.E. Mr. E. J. M. Svogbo, Minister for Justice, Legal and Parliamentary Affairs of Zimbabwe. The greetings of the Secretary-General of the United Nations were communicated to the Seminar by Mr. Enuga S. Reddy, Assistant Secretary- General in charge of the Centre against Apartheid. The Seminar elected H.E. Mr. Chike Ofodile, Attorney-General and Minister for Justice of the Federal Republic of Nigeria, as its Chairman. Statements were made at the opening sessions by representatives of the African National Congress of South Africa, the Pan Africanist Congress of Azania, the Secretary-General of the International Commission of Jurists, the Palestine Liberation Organisation, the Movement of Non-Aligned Countries, the United Nations Educational, Scientific and Cultural Organisation and the League of Arab States. The Seminar recognised that recent developments in southern Africa made it imperative for the international community to understand the urgent necessity for action through the application of international law to a situation which constituted one of the most serious threats to international peace and security. Southern Africa today is a battlefield. For several years, the South African regime has been fighting an undeclared war against its neighbours. Military aggression, combined with economic pressure, has been the chosen method of regional destabilisation and domination. South Africa has invoked the discredited legal notion of sphere of influence in order to enforce the colonial idea of a constellation of States. The consequences have been devastating. Thousands of Angolans, Mozambicans, Namibians and South African refugees and citizens of other independent States have been killed, maimed and made homeless. Refugee camps have been particular targets of the South African regime. Economic damage to Angola and Mozambique alone amounts to over $US 14 billion. Namibia’s one and one-half million people are subjected to a ruthless military occupation by South African troops and police. A tenth of the population has been driven into exile; 80 per cent of the population lives under martial law; hundreds are detained without trial or have “disappeared” after arrests. Church leaders have described apartheid rule in Namibia as a reign of terror. In South Africa itself, a massive militarisation drive coupled with a complex series of adjustments to the apartheid system - mistakenly referred to as reforms by some of South Africa’s allies - have centralised and consolidated white state power. In this process, nearly 8 million Africans have been denationalised in pursuit of the South African regime’s policy of establishing “independent” homelands for Africans, and nearly 3.5 million Africans have been deported from their residences. A new constitution is about to be inaugurated establishing a tricameral parliament for whites, so-called Coloureds and South Africans of Indian descent. The Seminar recognised that the international community had already condemned the total illegitimacy of the new constitutional arrangements
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