Legal truth, like all truth, arises out of the clash of opposites. At the heart of all debate on the legal characterisation of the apartheid State, lies the opposition between two seemingly irreconcilable truths, namely, South Africa is an independent State, and the eradication of apartheid represents the culmination of the struggle to free Africa from colonial domination. Put in terms of the internal situation in South Africa, a struggle essentially anti-colonial in origin and character is taking place in a country that has long ceased to be a colony. It is to this seemingly contradictory situation that international lawyers must address themselves.
Much confusion has arisen over this question because of failure to appreciate that the basic question is not one of recognition but of de-recognition. The then Union of South Africa was long ago admitted to the family of nations as an independent State. The Union was created as a self-governing dominion in 1910, and thereafter the Statute of Westminster, 1928, and the Status Act, 1934, of the British Parliament removed any formal controls that Britain might still have exercised. South Africa was a member of the League of Nations and a founder member of the United Nations. It established diplomatic relations with a large number of countries and entered into many bilateral and multilateral treaties. There can be no question that for many decades South Africa was recognised as an independent State. State practice and legal theory seemed in accordance in this respect.
All the criteria of recognition as in independent State appeared to be present. South Africa had a defined territory, a permanent population and a government exercising internal control, and was not legally subject to the external control of any other States (see the Montevideo Convention, 1933, article 1). Even those who might have argued that in addition to effective control the element of legitimacy should have been added, would have been satisfied that sovereignty had properly passed according to due constitutional and legislative process from Britain.
Normally, time consolidates rather than undermines legitimacy. Public international law is extremely realistic in regarding possession as nine-tenths of the law, preferring not to look to the origin of States or to the title of governments or to the nature of social systems but rather to regard respect for the sovereignty of each State as the foundation for international peace and co-operation.
How, then, is it possible to challenge South Africa’s claim to be an independent State? The answer to this question must be found in the changed nature of the international legal order and the increased emphasis given to the principle of self-determination of peoples as the foundation of sovereignty. The family of nations is now constituted on different bases. The domination of people by people, race by race, once consecrated in the international legal order in the form of colonial and racist rule, not only lost its legitimacy, but came to be regarded as legally obnoxious. The anti-colonial revolution changed both the rules and the nature of those who made the rules. At the time when General Smuts, as Prime Minister of South Africa, was invited to help draft the Charter of the United Nations, Nigeria was regarded as “belonging” to Britain. Today it is the emergence of countries like Nigeria, not only as the subjects of international law but as its creators, that has ensured that the once uncontestable presence of apartheid South Africa in the United Nations should be contested, and that the once ignored black population of South Africa should be given international recognition.
Thus what was once normal became abnormal; what was once abnormal became norm. It was not so much that the principle of self-determination became accepted in international law as that its applicability became universalised and the rights formerly conceded only to the peoples and nations of Europe and Latin America came to be extended to the peoples and nations of Asia and Africa as well. As a result, the once accepted legitimacy of racist authority in South Africa came to be questioned and what had formerly been considered blemishes to be corrected came to regarded as fundamental defects requiring a total reconstruction of the State.
At the level of international State practice, what had previously been a majority phenomenon, namely, recognition of South Africa as a State and of the Pretoria authorities as representatives of that State, became a minority phenomenon. Some States that had formerly had diplomatic relations with Pretoria (India, the USSR, Czechoslovakia) ceased to have such relations. At the same time, of the 100 new States that took their place in the international community, only one went on to enter into diplomatic relations with Pretoria. Similarly, international organisations that had formerly accepted representatives of the apartheid State as being representatives of South Africa, one by one withdrew the credentials of these representatives. The result is that today there is not a single United Nations body - whether the General Assembly or the most specialised organ - in which the Pretoria authorities are represented.
On the contrary, the United Nations has sponsored the International Convention on the Suppression and Punishment of the Crime of Apartheid, which stigmatises the philosophy and practices of the apartheid State as a crime against humanity; the General Assembly has frequently called upon States to isolate apartheid South Africa economically, culturally, militarily and diplomatically; the Security Council has imposed a mandatory embargo on the sale of arms to South Africa; and the United Nations has established the Special Committee against Apartheid, sponsor of this Conference, to ensure that the people of the world are kept constantly aware of the affront that apartheid represents to the human personality. Similarly, the overwhelming majority of international non-governmental organisations have also expelled the representatives of Pretoria, as have virtually all international sports bodies.
The process of expulsion from international organisations, de-recognition by certain older States, and non-recognition by newer States, has created a situation in which time has undermined rather than legitimised the apartheid State. It is true that many of the older States, especially those with strong commercial interests at stake, still treat South Africa as a normal, if criticised, State and still maintain normal diplomatic relations with it. But the day has long passed when these States, as the so-called civilised nations of the world, determined for themselves who should and who should not be considered members of the family of nations.
In a slightly different but essentially related context, Prof. Ian Brownlie has pointed to the importance of seeing legal rules and their application in the context of law as history. Referring to the question of rights over territory, he reminds us that the nineteenth century witnessed contradictory developments:
“In Europe and Latin America the principle of nationalities appeared, which, as the principle of self-determination, has become increasingly important. At the same time the European power made use of the concept of res nullius, which was legal in form but often political in application, since it involved the occupation of areas in Asia and Africa which were often the seat of organised communities. Thus the principle of self-determination requires harmonisation with the pre-existing law.”
By analogy, the pre-existing law, namely, the recognition of South Africa as an independent State, has to be harmonised with the increasing importance attached to the principle of self-determination. To the extent that it can be shown that South African State is constructed - formally, legally, officially - on principles that deny self determination to the majority, excluding them from the sovereignty and denying them nationality, to that extent the once-accepted legitimacy of the South African State is impugned and its recognition as a member of the community of nations put in issue.
International State practice in relation to southern African questions in general casts an interesting light on the classic international law controversy between the adherents of the constitutive and the declaratory theories of recognition. The constitutive theory, which argued that international legal personality came essentially from recognition by the international legal community, was based historically on the situation in the nineteenth century when a relatively small group of nations, mainly in Europe and the Americas, dominated international law, constituting a sort of “club” to which other nations could only belong if “elected” as “members.” The declaration theory, on the other hand, which contended that recognition merely acknowledged the fact of the existence of a State with international legal personality and was not the basis of constituting such personality, was strongly supported by new revolutionary States as more progressive and as favourable to peaceful co-existence.
The question now arises, however, as to whether certain elements of the constitutive theory need not be revived in a new form, in the sense that in certain objectively defined circumstances the organised world community can refuse to admit to normal international intercourse an entity even though it might possess the elements of territory, population and government. Whereas previously the members of the “club” that decided to confer or not confer international legal status on other States constituted a self-elected elite applying the so-called norms of Western civilisation, today the international community has become global in character, and its norms have been universalised and made more democratic by virtue of such instruments as the United Nations Charter. The legitimacy of any new entity claiming admission to the family of nations therefore depends fundamentally on whether by its very character and constitution such entity contravenes any of the generally recognised principles of international law, and particularly the principle of self-determination.
Perhaps more emphasis needs to be given than has been shown in some scholarly writing to the difference between recognition of a new State and recognition of a new government. Whereas the principle of effectiveness is decisive in the case of recognising or not recognising a new government, it is the principle of self-determination that should of necessity be fundamental in the case of recognition or otherwise of a State. The same would apply to the process of de-recognition: the vast colonial empires, once recognised as falling within the sovereignty of the metropoles, were progressively de-recognised by international law, at times with the consent of the colonising Powers, at times against their wishes. Examples of this are Algeria’s independence from France and Guinea-Bissau’s independence from Portugal. The question of effective control ceased to be the determining element and was only indirectly relevant in that in both these cases it was popular insurrection and armed struggle that manifested to the world a claim to self-determination, and it was made clear in certain liberated zones, or a Provisional Government in exile that created the basis for the recognition of new state entities.
The greater the international acceptance of the principle of the rights of colonised peoples and nations to self-determination, the more tenuous became the legitimacy of the remaining colonial empires. Today only Namibia and South Africa remain “un-decolonised.” The forms of domination established in these two countries in the period of the heyday of colonialism remain essentially untouched, but what was once accepted has now become repugnant to international law.
This is not to argue that the United Nations has become a supranational organ with authority to determine whether the conditions of statehood exist or not in these cases, but to say that the acceptance by the international legal community of the principle of self-determination as the foundation of statehood has created a situation in which the once unassailable position of South Africa as an independent State has been undermined.
To sum up: South Africa has certain of the essential characteristics of an independent State, but lacks the fundamental one, namely, compliance with the principle of self-determination. The mere existence of a territory, population and a government exercising a degree of effective control is not enough. A State that reserves its sovereignty to a small racially constituted minority, that negates the legal personality of the great majority of the people on the ground that they are of indigenous origin, that deprives them constitutionally of elementary rights of citizenship, that leaves them without nationality and subjects them to massive racial discrimination, cannot claim to be an “independent State” in the full meaning of the term. The State is independent in the sense that it is not subject to the legal control of any other States, but the people are not independent inasmuch as they lack sovereignty. The clearest proof of the exclusion of the majority of the people from national sovereignty comes from apartheid regime itself, through its bantustan policy, which is expressly designed to exclude the mass of people from the national polity under the guise of granting them separate independence in separate tribal States.
A new popular sovereignty proclaims itself through the praxis of the mass national liberation struggle for democratic rights, so that the international legal community, while increasingly denying recognition to the old, increasingly grants recognition to the new. If South Africa is an independent State, it is one in which the majority of the people have never enjoyed independence. Until such time as the independence granted by Britain in 1910 to the white minority covers the whole population and the whole territory, it cannot be treated as an independent State in the proper sense of the word. Its independence is inchoate, and will only be complete when sovereign power is exercised not by a racial minority but by the people as a whole.
A number of political developments in South Africa in recent years have thrown into sharp focus the relevance of the rules of self-determination, the preferred and protected role of the national liberation movement and the legal character of the South African State.
Lawyers, and international lawyers in particular, have not worked out the implications of these developments in any systematic manner but a number of Studies in discrete areas have tried to tease out the implications of these developments and, in some cases, there has been some attempt to rely on these rules of international law in specific problems facing South African courts.
The continued refusal of the international community to recognise the independence of the four homelands, the controversy associated with South African Government’s attempt in 1982 to transfer or cede Ingwavuma and Kangwane to Swaziland and the problems associated with the denaturalisation of more than 8 million Africans under the National States Citizenship Act of 1970 highlight the special features of the situation in South Africa. Finally, the recent trials of alleged combatants of the African National Congress of South Africa on charges of high treason, the nature of the pleas made by the accused and the declaration in November 1980 deposited by this organisation with the International Committee of the Red Cross raise very sharply the question of the interrelationship between the rules of self-determination and the role of the liberation movements.
The starting point must therefore be a discussion of the right to self-determination, which has had far-reaching effects in contemporary international law on nearly every aspect.
The right to self-determination of colonial peoples is an incontestable legal principle today. Apart from a handful of (largely Anglo-Saxon) legal writers, States and the international community recognise the right as providing a juridical foundation for the recognition of a people as a legal entity possessing rights, which denies the former colonial idea that peoples and territories .”..are mere chattels to be acquired and disposed of by and for the benefit of the proprietary State, but are instead the heritage of those who dwell within them.”
The rule of self-determination is enshrined not only in the Charter of the United Nations but also finds a place in other sources of international law.
The Charter refers to self-determination, firstly, in its purposes where in Article 1, paragraph 2, there is the requirement to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Article 55, significantly concerned with international, economic and social co-operation, places respect for the “principle of equal rights and self-determination of peoples” in the context of “peaceful and friendly relations among nations,” and Article 56 enjoins Member States of the United Nations to take “joint and separate action in co-operation with the organisation for the achievement of the purposes set forth in Article 55.”
The link between racial equality and decolonisation is reflected in resolution 2106 (XX) of 1965 where the General Assembly associated the right of self-determination with the International Convention on the Elimination of Racial Discrimination, 1965, the most highly ratified Convention. Even more concretely, the right of self-determination finds expression in article 1, common to the two Covenants of 1966, both of which are now in force:
“All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”
Subsequent to 1960, a stream of important resolutions elaborated and further developed this right. Whether General Assembly resolution 1514 (XV) itself was law-making is now quite unimportant. Brownlie considers the resolution to be an example of an authoritative interpretation of the Charter. Some others may consider it to be part of customary international law because of State practice, acquiescence and consensus. The better view is that the resolution did not identify in concrete legal terms the right of self-determination, for as Manfred Lachs has said, “the relevant provisions of the Charter were not creative of a new rule of law. All they did was to confirm and lay down in writing a principle which had long been growing and maturing in international society until it gained general recognition. By including and laying it down as one of the principles of the newly born organisation, the Charter gave expression to one of the elements of the international law of the time.”
This view is upheld by the subsequent development which ensured that this right of self-determination has emerged as part of jus cogens, certain overriding principles or imperative norms of international law, “which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent norm of contrary effect.” The International Court of Justice, in giving examples of these “peremptory norms,” which form part of jus cogens, described these obligations as being obligations “towards the international community as a whole .”
The Declaration has been cited as a source of authority for the activities of the United Nations in support of national liberation movements. In the formative period of United Nations action, the only liberation movements recognised by the General Assembly were those in Africa - in the Portuguese colonies, Zimbabwe, Namibia and South Africa. These resolutions, underlying the norms of international law, have consistently embodied five basic principles which lie at the foundation of all international activity in support of liberation movements and they have been applied, to a greater or lesser extent, to the situation arising in the Western Sahara, Palestine and East Timor.
The five principles are:
The resistance of these liberation movements to colonial, racist and alien regimes in their territories is legitimate and the opposition of those regimes to the effort of the movements is unlawful. The national liberation movements are the “legitimate” or “authentic” or, in the case of Namibia, the “sole” representatives of the oppressed people of their Territories in the international community, even though they do not claim to be the governments of independent States;
The liberation movements may utilise “all necessary means at their disposal,” including armed force, for the termination of colonialism and racism in their Territories;
All States and organisations associated with the United Nations should provide “moral and material assistance” to the liberation movements and should refrain from assisting their adversaries in unlawful opposition to them;
When considering matters dealing with the Territories for which national liberation movements exist, organisations associated with the United Nations should provide for the representation of those movements at their deliberations and conferences;
National liberation movements and their members combating colonialism, racialism and alien rule are entitled to the protection of the Geneva Conventions of 1949, especially those relating to the protection of civilians and prisoners of war.
The right to self-determination is therefore a recognition of the collective rights of a national entity which is accorded rights under the Charter and under international law. The recognition of the rights of a people is important as it presupposes that such rights will be or can be pursued or vindicated through the instrument of a public body known as a national liberation movement and that the struggle itself is thereby accorded a legal status in international law.
The consequences of this evolution of the law are far-reaching because it “represents an important movement away from the old view under which international law rights pertain only to States and governments and not to groups of individuals.” Liberation movements recognised by the United Nations have, especially where there is a regional organisation such as the Organisation of African Unity to espouse their claim, therefore, the capacity of existence at the level of international law as they are the legally prescribed instruments for the vindication of the right to self-determination. Without such a recognition, the right to resistance, which is connected with a viable entity and accompanying political institutions, is devoid of meaning.
The creative development of international law in support of the rights of subject peoples fighting against the tyranny and violence of colonialism, racism and apartheid shows that international law adopts empirical tests as far as personality is concerned and the early statement of the Secretary-General of the United Nations that “practice has abandoned the doctrine that States are the exclusive subjects of international rights and obligations” has been upheld by subsequent practice concerning national liberation movements.
In jurisprudential terms, this development has had extraordinary effects. “Colonial” issues, including the issue of apartheid and racism in South Africa, are removed from the restrictions of the domestic jurisdiction clause of the Charter; sovereignty vests in the people of the Territory and not in the colonial Power and the liberation movement has interim personality, as the representative of the peoples of the Territory in question.
The impetus for this development came from the struggle of the people of Angola, Mozambique and Guinea-Bissau in the 1960s. The formula used by the General Assembly and the Security Council was applied, to a lesser extent, to other situations. At the twentieth session, in 1965, the General Assembly, for the first time, recognised the “legitimacy of the struggles by the peoples under colonial rule to exercise their right to self-determination and independence” and at the same time it invited “all States to provide material and moral assistance to the national liberation movements in colonial Territories.” The following year, the General Assembly went one step further and stated that the preservation of colonialism and its manifestations, including racism and apartheid, were incompatible with the Charter and the Declaration on decolonisation. It further declared that colonialism threatened international peace and security and that the practice of apartheid constituted a crime against humanity, a characterisation that was to have important legal repercussions in the years ahead.
The representative nature of liberation movements was first applied by the
General Assembly to the movements fighting Portuguese colonialism in Africa.
As far as extant movements are concerned, the South West Africa People’s
Organisation (SWAPO) of Namibia, which was established in 1960 and began the
armed struggle following the disgraceful judgement of the International Court
of Justice in 1966, was recognised by the General Assembly as the “authentic
representative of the Namibian people.” The Assembly supported its efforts
to strengthen national unity and requested an active commitment by all governments,
international organisations and national bodies to channel aid
- financial, material or otherwise - through SWAPO.
Three years later, the General Assembly recognised SWAPO as the sole and authentic representative of the Namibian people, supported its armed struggle for self-determination, freedom and national independence, and invited States to provide assistance for this struggle. Significantly, the Assembly invited SWAPO to participate as an observer in the work and sessions of the General Assembly and in all conferences convened under the auspices of the Assembly (later to include all United Nations bodies). In relation to the implementation of Security Council resolution 385 (1976) on elections for a transfer of power in Namibia - whose initial impetus has been obscured by the intervention in 1977 of the five Western Contact States - the General Assembly, at its ninth special session in 1978, insisted that independence talks between SWAPO and the representatives of the South African regime, under the auspices of the United Nations, must be for the sole purpose of discussing the modalities for the transfer of power to the people of Namibia, and rejected the pretensions of the South African-sponsored groups in Namibia whom South Africa was intending to put forward as an alternative to SWAPO.
SWAPO has, as a result, enjoyed a special status representing the role as the organ for the self-determination for Namibia, reflecting the special international status of the Territory. It enjoys also a special relationship with the United Nations Council for Namibia in the implementation of various United Nations policy decisions.
The situation in South Africa, arising out of the official State policy of apartheid, has led to United Nations intervention since 1946, when the General Assembly was first seized of the issue. The systematic and violent imposition of the official policy of the State and the large-scale Western involvement in economic, military and diplomatic support for the system have made the apartheid issue one of the crucial legal problems of our time. More resolutions of the General Assembly, the Security Council and the associated or subsidiary organs of the United Nations have been passed on the issue of apartheid than on any other international situation or dispute. Through these repeated resolutions, which have assisted in legal developments, the international community has recognised that the apartheid system and the situation in South Africa are special cases, requiring exceptional responses both from the world body and international law.
There has been a clear recognition that apartheid is more than a matter of human rights whereby amelioration of the plight of the 20 million blacks would lead to improvements in the situation there. The development of the law over the past three decades has followed the following pattern. The linking of racial equality with decolonisation and self-determination, the development of the norm of non-discrimination, the recognition of apartheid as a crime against humanity, now clearly reflected in the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 which, like the Genocide Convention, imposes individual responsibility for such a crime, and the insistence of the General Assembly that the situation in South Africa is a threat to international peace and security partially recognised by the Security Council by the taking of Chapter VII Charter action against a Member State forbidding the export of arms and military material to South Africa, culminated in a recognition that the South African regime is illegitimate.
This dramatic conclusion was reached by the General Assembly when it declared that the “racist regime of South Africa is illegitimate and has no right to represent the people of South Africa.” Associated with this was the reaffirmation of the “legitimacy of the struggle of the oppressed people of South Africa and their liberation movements, by all possible means, for the seizure of power by the people and the exercise of their inalienable rights to self-determination,” and the further and important recognition of the national liberation movement of South Africa as the “authentic representatives of the overwhelming majority of the South African people.”
To reach this conclusion, the world community had first to evaluate the nature of the South African State. Although ostensibly meeting the criteria of statehood - permanent population, defined territory, a government and the capacity to enter into relations with other States - the South African regime represents not the classical features of salt-water colonialism, to which the decolonisation process and the right of self-determination automatically apply, but a colonialism of a special kind where the colonisers and the colonised live in the same territory, and where the racial minority, in their laws and in the Constitution itself, considers and treats the majority as rightless aliens in their own country. The bantustan system, with its inner “logic” of ultimately dividing South Africa into a number of territorial units with an alleged independent status granted by the colonial Parliament, will remove citizenship rights for all “citizens” of the bantustans. The bantustan policy, more sharply than any other manifestation of apartheid, shows the classical features of a colonial administration conferring “independence” on what must be considered as a subject people. But since the “people” as a whole have never been consulted about their fate, such partition attempts must be seen as contrary to the right of self-determination, rather than simply as a part of the anti-human rights policy of apartheid.
In other words, two systems of law and government exist side by side in South Africa, one for the colonisers and the other for the colonised. The former enjoyed a transfer of legal authority from the imperial overlord, Britain, but since the establishment of the Union of South Africa in 1910, the essence of the colonial relationship has been continuously maintained.
In any event, the rules of international law have developed to an extent where the apartheid system has been held to be in breach of the rule of non-discrimination recognised by the International Court of Justice and articulated by Judge Padilla Nervo:
“Racial discrimination as a matter of official government policy is a violation of norm or rule or standard of the international community.”
Secondly, the norm of racial equality has been associated with, or even assimilated to, the norm of self-determination and racial discrimination as a “factor giving rise to a colonial situation has also been apparent apart from the case of Southern Rhodesia, in the resolutions adopted in recent years on the apartheid policies followed by South Africa.”
Thirdly, apart from the 1973 Convention on Apartheid, customary international law and treaty law view apartheid as a crime under international law. This is illustrated by the ease with which the Geneva Conference on Humanitarian Law, when adopting Protocol I of 1977 additional to the Geneva Conventions of 1949, accepted the provision whereby apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination, shall be regarded as “grave breaches of the Protocol” when “committed wilfully and in violation of the [Geneva] Conventions or the Protocol.” Under section II of the Protocol, these acts have been added to the list of “grave breaches.” Under article 85, paragraph 5, of Protocol I, grave breaches of the Conventions and the Protocol are to be regarded as war crimes.
In the same vein, the International Law Commission, which has been reporting on international crimes in the context of state responsibility, adopted at its twenty-eighth session a definition which has urgent and serious implications for international order:
“An international wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognised as a crime by that community as a whole, constitutes an international crime.”
On the basis of the practice of the General Assembly and the development of rules that genocide and apartheid are examples of offences to be included in the category of the most serious internationally wrongful acts, the Commission adopted article 19 which states that an international crime may result, among other examples, from “a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide, apartheid.”
In Namibia and South Africa, therefore, the right of the population to overthrow a system that has been incontestably recognised to be a crime against humanity cannot be doubted.
A people revolting against colonial aggression represent their interest through a public body such as a national liberation movement. Such interim international personality of a national liberation movement reflects the personality of a new State that is in the process of establishment.
In order to vindicate the principle of self-determination, nations or peoples have resorted to physical force, and will continue to do so. It may be artificial to consider that such a struggle is a form of self-defence of the emerging State under Article 51 of the Charter of the United Nations. It is more fruitful to consider recourse to armed struggle as consistent with the Charter because it is in pursuit of a rule of jus cogens, the right to self-determination. In other words, the conflict is between “forces which represent different authorities and different peoples” and from the earliest stage of United Nations involvement, these conflicts were considered to be “international conflicts” and thus removed from the domestic jurisdiction clause. Although the threat or use of force in contemporary international law is forbidden, specially but not exclusively under Article 2 (4) of the Charter, and no title to territory may be acquired through illegal methods, an armed colonial struggle belongs to “an area where force may still be employed for the purpose virtually of bringing about a change in territorial sovereignty, without necessarily impinging upon prohibitions of the use of force laid down by international law.”
Western Governments objected to the concrete application of the right to revolt in pursuit of the right to self-determination in its early stages but the United Nations in its repertory of practice reflected, in the early 1960s an awareness of changing political realities which “symbolise [d] and concretise [d] a new politico-juridical conception: the definite repudiation and end of colonialism.”
For a number of years, beginning in 1965, the General Assembly has recognised the legitimacy of the struggle of peoples under colonial rule to exercise this right to self-determination, starting with the colonies under Portuguese occupation and in relation to Zimbabwe, but later generalising this right to Namibia, South Africa and the people of Palestine.
At its twentieth session in 1965, the General Assembly recognised the legitimacy of the struggle by the peoples under colonial rule to exercise this right to self-determination and independence. At the same session, in the Declaration on the Inadmissibility of Intervention in Domestic Affairs and the Protection of Independence and Sovereignty (passed without a vote against), the General Assembly identified the other aspect of this right when it demanded not only “respect for self-determination and independence of peoples and nations... with absolute respect for human rights and fundamental freedoms” but demanded that all States should contribute to “the complete elimination of racial discrimination and colonialism in all its forms and manifestations.”
The right to revolt now had additional dimensions, the right to seek and obtain assistance from other States and the obligation on other States not to assist in the preservation of colonialism, racism and apartheid. Brownlie identifies this aspect of the principle as one of the “corollaries,” namely, “...intervention against a liberation movement may be unlawful and assistance to the movement may be lawful.” Western Governments may continue to vote against specific resolutions that recognise these rights and obligations in relation to specific Territories but this is untenable because they are parties to two major declarations passed without dissent or abstention by the General Assembly.
Whatever doubt may have existed about the right to overthrow established authority which contravenes the right to self-determination, has now been dissipated by the unanimous adoption by the General Assembly of the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which is declaratory of customary international law. The principles of the Charter embodied in the Declaration are declared to constitute “basic principles of international law.” The Declaration lays down a duty on States “to refrain from any forcible action which deprives peoples referred to in the elaboration of the present principle of their rights to self-determination and freedom and independence.” But even more importantly, the Declaration recognises a right to fight against such deprivation because it lays down that:
“In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.”
It is quite clear that the Declaration recognises the right to have recourse to a war of liberation and clearly indicates that the use of force against the exercise of self-determination is a violation of international law. In so far as the resolution recognises the right of internal revolution, it codifies what international law has traditionally assumed. The Declaration clearly applies to Namibia, where the majority is under “alien subjugation, domination and exploitation.”
Similarly, the General Assembly resolution on the Definition of Aggression passed by consensus in 1974 which, in accordance with the Charter, prohibits aggressive acts between States, expressly (under article 7) provides that nothing in the definition of aggression can prejudice the right of self-determination, freedom and independence of peoples under “colonial and racist regimes or other forms of alien domination,” nor the right of these peoples to struggle to that end and receive support, in accordance with the principles of the Charter and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.
These developments in international law, consistent with and not in derogation from the Charter of the United Nations, have drawn the significant observation from one commentator that “it is clear that the right of revolution has been recognised more forthrightly and explicitly by the international community than it earlier had been.”
The liberation movements of South Africa have had observer status with the United Nations since 1974, have participated in conferences held under the auspices of the organisation and even signed the text adopted at the conclusion of the Geneva Conference on Humanitarian Law in 1977. This has been the result of the persistence of the General Assembly where, by increasing majorities, the Assembly has characterised the South African regime as “illegitimate,” resulting in the withdrawal of the credentials of the South African delegation in 1974, proclaiming that the national liberation movements of South Africa are the authentic representatives of people of South Africa in their just struggle for national liberation” and recognising the “right of the oppressed people and their national liberation movements to resort to all the means at their disposal, including armed struggle, in their resistance to the illegitimate racist minority regime of South Africa.”
In case the practice of the General Assembly is dismissed as the result of the “tyranny of automatic majorities” obtained by the third world, it is interesting to turn to the evolution of the practice of the Security Council.
The Security Council was first seized of the South African issue in 1960, following the massacres at Sharpeville and Langa. Resolution 134 (1960) recognised that the situation in South Africa “is one that has led to international friction and if continued might endanger international peace and security.” Although there was a call for South Africa to “abandon apartheid,” there was no characterisation of the regime or the nature of the struggle. The “legitimacy of the struggle of the oppressed people” was first recognised in resolution 82 (1970) but the struggle was related to their “human and political rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights.” France, the United Kingdom and the United States abstained on this resolution. The same formula, repeated in resolution 392 (1976), adopted three days after the shootings at Soweto, went somewhat further and recognised the “legitimacy of the struggle of the South African people for the elimination of apartheid and racial discrimination.”
The combination of “struggle” and “elimination” was significant and in resolution 417 (1977) the Security Council unanimously reaffirmed the earlier recognition of the legitimacy of the struggle against apartheid, but went one step further. For the first time, the Council affirmed the right of the people of South Africa as a whole, irrespective or race, colour or creed, to the exercise of self-determination. The connection between apartheid and self-determination has been asserted in a subsequent resolution and support for the legitimacy of the struggle reiterated.
These resolutions of the General Assembly (and even of the Security Council) have affirmed the right of colonial peoples to resort to armed struggle and to such necessary material support and other support against foreign domination. More recently, the responsibilities of the specialised agencies and other organisations within the United Nations for the provision of “moral and material assistance, on a priority basis, to the peoples of the colonial Territories and their national liberation movements” has been clearly identified.
Since 1965, when both the General Assembly and the Security Council have had to condemn the violence of colonialism, especially against the territory of States that have provided assistance to liberation movements, resolutions have demanded that the colonial aggressor pay compensation to the States that have suffered damage. Until 1981, this was the constant position of the Security Council. No resolution of any United Nations body has either condemned the country providing assistance to a liberation movement or equated the reaction of the liberation struggle with the violence of colonial and racist regimes. The constant theme of resolutions passed in response to complaints brought by Zambia, Mozambique, Angola and Lesotho has been to condemn the acts of violence or aggression by South Africa, as it had been previously in the case of then Southern Rhodesia. For the first time in 1981, following the massive invasion of Angola by South Africa under the code name of “Operation Protea,” the United States used the veto because the resolution lacked “balance,” as there has been no reference to SWAPO’s activities from Angola.
But what these resolutions have established, as they did in the earlier instances of the Portuguese colonies, is that the illegal status of the occupying Power denies that Power the automatic right to self-defence. Conversely, the right of the victim-peoples to take steps to pursue their right to self-determination is not to be equated with the aggressor’s actions.
Principle VI (b) of the Nuremberg Principles of 1946, adopted by the General Assembly, defines war crimes as:
“Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in an occupied territory, murder or ill-treatment of prisoners-of-war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity.”
Wars of national liberation did not fit easily into the traditional description of parties covered by international humanitarian law in that one party (the liberation movement) is not a State while the other party is, however illegal its occupation (as South Africa in Namibia, Israel in the West Bank) or illegitimate its status (as in the case of South Africa itself).
The applicability of the Nuremberg Principles to these territories depends on the legal nature of these conflicts. There is here a rich area of the law developing to meet the needs of the international community.
The core of the law for the protection of individuals in time of war is provided by the four Geneva Conventions of 1949 consisting of four treaties, relative to the wounded and the sick, the wounded, sick and shipwrecked at sea, prisoners of war and civilians. There are other provisions regulating the conduct of war on land or sea, especially the Hague Convention of 1907 on the conduct of war on land, but it is the “Geneva Principles” as they have become known which are especially relevant, particularly Conventions III and IV dealing with prisoners-of-war and civilians respectively. They form the basis of international humanitarian law.
These Conventions are ratified by about the highest number of States compared with any other international treaty. As of June 1977, 143 States were parties to the Conventions (including South Africa). With one exception, the whole of the organised international community is bound by these rules. The question of whether these Conventions are part of customary international law, thus providing rights for entities not parties to the Convention, is not of “academic interest” as one writer suggests, but of profound importance. If the Hague Regulations were held to be declaratory of customary international law by the Nuremberg War Crimes Tribunal, although they were ratified by far fewer States, the near-universality of the Geneva Conventions must undoubtedly make them part of customary international law.
In any case, there are features to these Conventions that are unique in international relations and in texts imposing duties on States. For example, article 1 common to all four Conventions provides that “the contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This obligation does not overlap with the results of ratifying the Convention. It emphasises that the Conventions imply certain pledges taken by the State itself, in accordance with its humanitarian duties and which are independent of any reciprocity on the part of other or co-contracting Powers. Therefore, this “imperious obligation of civilisation” imposes not only a duty on a contracting State to carry out its duties. This would seem to place interesting obligations on the allies of South Africa to ensure that the regime complies with the provisions of the Conventions, which may be one reason why even Western Powers have appealed to the South African regime not to execute combatants of the African National Congress. Otherwise, the other contracting States may themselves be in breach of common article 1.
The major obstacle to the reliance on the Geneva Conventions by combatants struggling against colonial and alien domination and racist regimes was that these Conventions applied to international conflicts, i.e., inter-State wars and conflicts, and they presupposed that only States could become parties or contracting Powers to the Conventions.
Article 3 common to the four Conventions attempts to deal with armed conflicts not of an international character by laying down the minimum of humane treatment to be guaranteed for prisoners. But the terms on which article 3 may apply are vague and they depend on a State party to the Conventions applying them to the situation.
Not once in the recent anti-colonial struggles against the Portuguese up to 1974 did the metropolitan Power recognise the application of article 3. Also, the three kinds of struggle referred to above were not really assimilable to the kind of civil war situation regulated by article 3.
The development of new rules to regulate the status of combatants fighting for national liberation, against alien occupation and against racism, is inextricably bound up with the norms of law associated with three other areas. Firstly, there was the effect of General Assembly resolution 1514 (XV) of 1960 embracing the Declaration on the Granting of Independence to Colonial Countries and Peoples; secondly, the development of the right of movements representing such peoples to employ armed struggle in pursuit of these objectives, which owed so much to the 1966 Conference of Heads of State or Government of 47 Non-Aligned Countries which declared that “colonised people may legitimately resort to arms to secure the full exercise of their right to self-determination and independence if the colonial Powers persist in opposing their national aspirations.” The “right to revolt” was asserted in subsequent General Assembly resolutions and found its clearest manifestation in the consensus Declaration on Definition of Aggression of the General Assembly in 1974.
Thirdly, the majority of members of the United Nations had contended for a number of years that the conflicts in countries under colonial domination were in fact international conflicts for the reasons we have already seen and since these Territories have an internationally-protected right to revolt, foreign States, (or in the special kind of colonialism existing in South Africa, South Africa itself), are bound to observe the Geneva Conventions, especially those relating to civilians and prisoners-of-war. If, therefore, rules in a treaty stipulated that wars of national liberation are international armed conflicts, these rules would simply codify international law already in force.
As far as the status of combatants of national liberation movements was concerned, the United Nations Conference on Human Rights held in Teheran in 1968 on the twentieth anniversary of the Universal Declaration on Human Rights specifically referred to the need to extend human rights provisions to all international conflicts. Direct United Nations interest in this area was aroused very quickly and in 1970 the General Assembly requested the Secretary-General of the United Nations to give “particular attention to the need for the protection of the rights of civilians and combatants in conflicts which arise from struggles under colonial and foreign rule, for liberation and self-determination, and to the better application of existing humanitarian international conventions and rules to such conflicts.”
This development culminated in the adoption by the General Assembly in 1973 of resolution 3103 (XXVIII) which reaffirmed the right to revolt, stressed that the policy of apartheid and racial discrimination had been recognised as an international crime, referred to the illegal status of mercenaries and, in paragraphs 3 and 4, stated:
“The armed conflicts involving the struggle of peoples against colonial and alien domination and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions, and the legal status envisaged to apply to the combatants... is to apply to the persons engaged in armed struggle against colonial and alien domination and racist regimes.
“The combatants struggling against colonial and alien domination and racist regimes captured as prisoners are to be accorded the status of prisoners of war and their treatment should be in accordance with the provisions of the Geneva Convention relative to the Treatment of Prisoners...”
The International Committee of the Red Cross had already convened meetings of experts to consider the elaboration of the 1949 Conventions. The invitation of the General Assembly to deal with the above matter could not have come at a more propitious time and provided the appropriate backdrop when the Geneva Conference of Diplomatic Representatives was convened in 1974 and adopted Protocols I and II in 1977.
Protocol I supplements and augments the four Geneva Conventions of 1949 as they applied to international conflicts. Armed conflicts not of an international character are covered by Protocol II of 1977. The real advance in 1977 was the extension of the notion of international conflicts to cover the situation in southern Africa, and to other anti-colonial conflicts covered by the Protocol.
To reflect the developments since 1960, the Conference, in the text adopted in article 1 of Protocol I, incorporated the three conflict categories recognised in a number of United Nations resolutions and made the Protocol applicable to:
.”..armed conflicts in which the peoples are fighting colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination as enshrined in the Charter of the United Nations and the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.”
The history of this provision shows that those who proposed it did not intend to limit its application to the category of conflict which simultaneously involves all three conditions, i.e., those fighting against colonial domination and alien occupation and against racist regimes, as some Western commentators had suggested. If this limited view were accepted, the Protocol would apply only to externally imposed colonial and racist regimes and not to the situation in South Africa.
This view is untenable for two reasons. Firstly, for many years, the General Assembly of the United Nations has characterised the struggle of the people of South Africa as a struggle for self-determination and has associated the demand for the overthrow of apartheid with the right of self-determination. Secondly, from 1968 to 1975, more than 20 resolutions of the General Assembly were passed supporting the extension of human rights in periods of armed conflicts culminating in the seminal resolution of 1973 entitled “Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes,” a Declaration which lent substantial impetus to the article 1 of Protocol I. This Declaration explicitly treats racist regimes as a form of oppression distinct from foreign occupation and expressly alludes to preceding resolutions dealing exclusively with apartheid and racial oppression.
This conclusion is supported by an authoritative study not sympathetic to the extension of the application of the Conventions to the South African situation which concludes that the Declaration did not qualify the racist regimes falling within its ambit by limiting them to those involving external domination. “Rather, it is submitted that the history of the amendment indicates that three distinctive alternative conflict categories were contemplated.” Western commentators have been generally antipathetic to a formulation that presents a judgement value on the role of a liberation movement as “the recipients of a discrete system of humanitarian safeguards” but they tend to ignore or minimise the strength of the feeling of other States and communities concerning the crimes of colonialism and apartheid and the associated legal developments, and the way in which rules of international law have developed.
The traditional view was that only States might become parties to or accede to the Conventions, notwithstanding the post-war evolution that a territory or political entity that is denied its right of self-determination guaranteed by the Charter of the United Nations can be regarded as an international person for some purposes. This approach enables Professor Abi-Saab to come to the conclusion that “liberation movements have a jus ad bellum under the Charter,” and “they are subject to the international jus in bello in its entirety.” A national liberation movement may therefore constitute itself as a “Power” by accepting the provisions of the four Conventions, including, therefore, article 96, paragraph 2, of the Protocol.
However, what difficulties there may have been in conferring such a power on a liberation movement which may not, at the present time, be administering a territory, have been removed by the automatic triggering mechanism of article 96, paragraph 2, of Protocol I of 1977 which states:
“The authority representing a people engaged against a High Contracting Party in an armed conflict of the types referred to in article I, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depository. Such declaration shall, upon its receipt by the depository, have in relation to that conflict, the following effects:
- The Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;
- The said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol;
- The Conventions and this Protocol are equally binding upon all Parties to the conflict.”
There is thus no impediment in the way of a liberation movement becoming a Party to the Conventions and the Protocol since the 1977 Protocol clearly and expressly confers such a right.
The Protocol is subject to ratification or accession by States. However, as many delegates at the Geneva Conference in 1974 and 1977 pointed out, article 1 of the 1977 Protocol is a codification of the developing rules of law exemplified by the General Assembly Declaration of 1973 on the legal status of combatants struggling against colonial and alien domination and racist regimes which espouses the extension of the full convention protection to them. Article 1, therefore, does not create new law for liberation movements, but merely crystallises in treaty form already existing rules of customary international law, especially those rules embraced by the four Geneva Conventions of 1949.
On this basis, these liberation movements are entitled to the legal status, as regards the application of the jus in bello, of a regular army and the inhabitants of these Territories are entitled to the protection of the accepted rules concerning the conduct of such hostilities. It can therefore be argued that all that the Protocol, through article 96, does is to establish the modalities by which these rights and obligations come into being: it does not create them. If the liberation movement does make the unilateral declaration envisaged in article 96, paragraph 3, then a heavy responsibility rests on the belligerent State to observe the customary rules, especially in relation to the treatment of prisoners of war, or to accede to the Protocol itself. SWAPO, for example, has already made a public statement that the “Namibian Liberation Army must - and does - comply with the laws and customs of war as set out, in particular, in the Geneva Conventions of 1949 and South Africa’s armed forces are also bound by these Conventions.”
On 28 November 1980, the African National Congress of South Africa deposited the following Declaration with the International Committee of the Red Cross, which was received on behalf of the Committee by its President:
“It is the conviction of the African National Congress of South Africa that international rules protecting the dignity of human beings must be upheld at all times. Therefore, and for humanitarian reasons, the African National Congress of South Africa hereby declares that, in the conduct of the struggle against apartheid and racism and for self- determination in South Africa, it intends to respect and be guided by the general principles of international humanitarian law applicable in armed conflicts.
“Whenever practically possible, the African National Congress of South Africa will endeavour to respect the rules of the four Geneva Conventions of 12 August 1949 for the victims of armed conflicts and the 1977 additional Protocol I relating to the protection of victims of international armed conflicts.
In a number of trials in South Africa in recent years, defence lawyers have invoked the internationally-protected status of combatants of the African National Congress and the General Assembly’s demands for either commutation of death sentences imposed by South African courts or for prisoner-of-war status. In a remarkable vote on 1 October 1982, 136 States called for this status when Mogorane, Mosoli and Motaung were sentenced to death following the attacks on the Booysens police station and Sasolburg. There were no votes against and only the United States of America abstained.
Western commentators were largely antagonistic to the evolution of article 1, paragraph 4, of the Protocol and to the criteria used for the identification of prisoners of war under article 44, paragraph 3.
However, in spite of the early opposition at Geneva of some Western Governments, there is now a grudging respect for the new situation arising out of Protocol I and the evolution of these rules of customary international law. As one writer put it, “It cannot be denied that the promulgation of these instruments represents an important step forward in the desire of modern nations to alleviate the suffering inflicted upon both combatants and civilians in the conduct of armed conflicts and to reach a balance between military necessity and the most basic values.”
If the “most basic values” are to have any immediate relevance to Namibia as it is illegally occupied by South Africa, then there is a special duty on the major Western Powers to ensure that the South African regime observes the principles of the legal status of the combatants “struggling against colonialism and racist regimes,” solemnly proclaimed by the General Assembly Declaration of 1973, as expressing the law, and elaborated in Protocol I of 1977.
If the South African regime continues to murder prisoners of war and its allies continue to permit it to do so, then the rest of the international community will draw the appropriate conclusion as to whether the West is seriously concerned at all with the systematic violation of the “most basic values” for the vast majority of the people of Namibia and South Africa, and with the rest of the territories covered by article 1.
The liberation movements lay great store on this legal dimension, and governments are obliged under General Assembly resolution 34/9 H of 1979 to take “appropriate measures to save the lives of all persons threatened with execution in trials staged by the illegitimate racist regime [of South Africa] on charges of high treason and under the obnoxious Terrorism Act.”
International law is no longer the monopoly or preserve of a small number of States from Western Europe and the Americas. In the past three decades, under the inspiration of new pressures, it has responded to the needs, desires and aspirations of a larger community of peoples and States, many of whom have recently undergone the humiliation, violence and racism inherent in colonialism. The legal developments must not therefore be seen as part of an emerging regional law of Africa or the “soft law” of the United Nations.
The rules relating to self-determination reflect an urgency where the maintenance of the status quo must yield to the imperatives of change. The Western system which excluded the vast majority of mankind and which had no creative potential for solving difficult problems, has given way to the United Nations Charter system which, through the fundamental law of the organised world community, affirms the right of political and economic self-determination, and repudiates racial discrimination.
The new legal order makes demands upon lawyers to ensure a commitment to national liberation movements. The territorial integrity of colonial Territories such as Namibia must be maintained. The bantustanisation of South Africa must be rejected. The demand for the treatment of captured freedom fighters as prisoners of war in terms of the relevant Geneva Convention has assumed particular significance in the context of Protocol I of 1977.
Most importantly, the need to use the legal power of the United Nations in support of mandatory action under Chapter VII of the Charter in those Territories where demands for economic, military and nuclear sanctions have been made by the liberation movements, has become urgent. In order to do this, there must be a political will in the West. Lawyers may be able to contribute to such an evolution.
The national liberation movements of southern Africa, SWAPO of Namibia and the African National Congress of South Africa, concerned as they are with the racist violence of the forces of apartheid, look to international lawyers to focus attention on the tripartite nature of crimes which invite individual responsibility under international law. Lawyers need to investigate the extent to which the crime of aggression, against subjects of international law such as Angola, Zambia, Botswana, and peoples protected by international law such as the people of Namibia and South Africa; crimes against humanity, through the execution of policies of racial discrimination and political, economic, social and racial oppression of a people; and war crimes, through acts contrary to the laws of war, non-recognition of prisoner of war status, etc., have been committed by the racist and colonial regime of South Africa.