It is particularly pertinent to discuss the use of law and lawyers in the struggle against apartheid inasmuch as one of the chief mechanisms used by the apartheid regime to maintain its system of controls over the black majority in South Africa has been a complex web of laws and a judicial system that has served the dictates of exploitation rather than the rule of law.
There are three levels on which law-related strategies to combat apartheid have been developed, each level necessarily being interrelated to the next, each level necessarily demanding co-ordination with the next. First, there is the level of intergovernmental organisations and bodies. It is at that level that significant achievements have occurred in the development of the normative and treaty obligations of South Africa and the other member States of the world community in relation to apartheid. Included in these would be the norms of non-discrimination based on race and self-determination, the obligations arising out of the numerous Security Council and General Assembly resolutions on apartheid, and the international human rights instruments, the Universal Declaration of Human Rights, and the interlocking International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discriminations the International Convention on the Suppression and Punishment of the Crime of Apartheid; Protocol I to the Geneva Conventions of l949; and the Charter of the United Nations.
It is incumbent upon States to comply with those obligations in the conduct of their national policies. This, then, represents the second level on which law-related strategies to combat apartheid must exist, for in doing so, States must not only refrain from proscribed activities, but are obligated to promote and encourage respect for the principles of the Charter by all other States, including South Africa.
The third level of law-related strategists are the non-governmental groups, including the public interest lawyers. It is on this level that I think you will find the greatest potential for a variety in approaches. With your permission, Mr. Chairman, in discussing two possible approaches that can be taken by public interest lawyers, I will use as an illustration the work of the Southern Africa Project of the Lawyers’ Committee for Civil Rights Under Law.
Fourteen years ago, it became apparent to the Southern Africa Project of the Lawyers’ Committee that lawyers in this country could play a role in the defence of political opponents of apartheid. By illuminating the arbitrary and repressive nature of the judicial process in South Africa, moreover, we have provided immediate and effective help to persons deprived of basic rights. We have intervened in cases in South Africa representing such adverse deprivations of basic rights as public floggings, police invasion of lawyer-client relationships, testimony compelled by a star chamber proceeding, the show trial of the leadership of the black students and the Black Consciousness Movement, arbitrary deprivation of liberty by banning, and exposure of torture through inquest proceedings, to name only a few.
While in the majority of cases our intervention consists of financial assistance, we have also supplied useful technical assistance when necessary, such as brief writing and the supplying of expert witnesses and international legal observers. At a time when those few lawyers in South Africa who are willing to do political work are coming under increased governmental harassment, this kind of professional link is of inestimable value.
In addition, we have helped break new ground by domestic legal actions. Over the years we have sought to initiate or intervene in legal proceedings in United States domestic courts to deter official or private actions which are supportive of South Africa’s policy of apartheid, particularly when such actions are expressly or arguably in violation of United States law. The novel approach taken by this programme has met with some successes over the years. It has helped focus the attention of the people in the United States and the rest of the world on racial problems of southern Africa and, on occasion, it has forced a change in the United States governmental policy and established new precedents with regard to the legal interest of United States citizens in foreign policy matters.
Cases we have litigated have (a) challenged the publication by The New York Times of want-ads for employment in South Africa which expressed directly or indirectly racially discriminatory criteria for employment; (b) challenged an order of the Civil Aeronautics Board which authorised South African Airways to serve a new route between Johannesburg and New York on the grounds that the order violated the Federal Aviation Act which prohibited the Civil Aeronautics Board from issuing a permit to a foreign air carrier which discriminates among its passengers on a racial basis; (c) sought declaratory and injunctive relief to prohibit the United States Government from continuing to trade with South Africans and from importing seal furs from Namibia in violation of United Nations Security Council resolutions; (d) challenged the Commerce Department practice of sending special trade missions to Namibia; (e) challenged on behalf of the United Mine Workers and the State of Alabama the importation of South African coal into the United States on the grounds that it violated the Traffic Act of 1930 which precludes the importation of goods that have been produced by forced or indentured labour; and (f) intervened in a proceeding before the United States Nuclear Regulatory Commission to challenge the issuing of a licence to export a sizeable quantity of highly enriched uranium for use in South Africa.
I wish I could say that we have constantly won these cases from a substantive point of view. More often than not, the courts have chosen to focus their attention upon the propriety of judicial intervention into what they considered to be a “political question” or “act of State” and to resolve the issues on that narrow technical basis rather than to consider fully the merits of the cases.
Nevertheless, I think the tactic of domestic litigation to enforce international legal principles and obligations in relation to apartheid is a viable approach with increasing possibilities for success. Such lawsuits have the result of calling both public and judicial attention to the actions being challenged and, most importantly, portray them not merely as collaboration with South Africa, but, at least arguably, as violations of municipal and/or international law.
When we win, we make considerable substantive gains for the anti-apartheid movement. But even when we lose, the fact that the loss was based merely on “technical” legal arguments goes far to convince the United States public that there is little justification for this country’s blatant disregard of its international obligations. The generation of such public sentiment and the bringing of well-substantiated claims in specific cases will also tend to expand the way the courts, if not the executive, perceive these issues in the future.
For example, due in some part to the arguments raised in the line of cases I have discussed, the United States courts have begun to recognise to some degree the enforceability of international law in domestic courts. A recently decided landmark case, Filartiga vs Pena established that United States federal courts do have justification to entertain civil action based on human rights violations abroad and opened a door to the possibility of a judicial challenge of complicity between agencies of the United States Government and police officials from foreign countries, such as South Africa, which are notorious for their abuse of human rights.
The tactic of using domestic litigation to enforce international obligations regarding apartheid presents a legitimate and innovative role for lawyers not only in the United States but in all countries where constant monitoring of those obligations is necessary. Where such a tactic is viable in other legal systems, it should be encouraged by the Special Committee against Apartheid. As a small step in that direction the Special Committee should consider holding small technical seminars of public-interest lawyers from those countries in which domestic enforcement and agitation would be most useful.
Contrary to the notion that the utility of such a seminar would be limited by the great disparity between legal systems, it would create a forum in which anti-apartheid lawyers could begin to assess the potential for complementary action created by that very disparity.
After all, in many instances the structures which are supportive of apartheid are transnational, frustrating legal attacks which are bound by narrow jurisdictional limits. For example, imagine an action taken against a corporation in Western Europe which is a wholly owned subsidiary of a United States firm. While certain facts necessary to support a claim against it may not be available to the Western European attorneys handling the case, such information may well be available to United States lawyers through a request under the Freedom of Information Act or the public disclosure rules of the Security Exchange Act.
Lawyers who are willing to take up the challenge to enforce United Nations embargoes need an opportunity to exchange strategies, co-ordinate efforts and collaborate across national boundaries.
… In November 1980, the African National Congress of South Africa deposited its declaration of being bound by the Geneva Conventions and Protocol I of 1977 with the International Committee of the Red Cross.
In its statement, the African National Congress paid tribute to the United Nations for its contribution to the crystallisation of rules concerning armed conflict in the struggle against colonisation, racialism and apartheid. This dynamic move by the African National Congress has already evoked a response from certain circles of the white power structure inside South Africa. The Special Committee can take credit for its contribution in this campaign which will have an important bearing on whether the lives of the combatants now facing the death sentence in South Africa will be saved.
South Africa is bound by the rules of law governing the treatment of prisoners of war of the liberation movement, independently of Protocol I, because what the Protocol did was merely to confirm and declare the law as it had evolved. If the criminal regime declares its intention to execute these South African patriots - which would clearly be a serious breach of the humanitarian rules of law and equivalent to war crimes - then the Security Council must decide under Chapter VII of the Charter that the continued breach of these rules by the South African regime is a threat to international peace…
The implementation of the rules of law and the invocation of Chapter VII of the Charter depend on the political will of the States Members of the United Nations and the balance of forces within the international community. No one can doubt that the South African system of apartheid, based as it is on a refusal to treat the majority of its own inhabitants as citizens, is a denial of the right to self-determination and lacks legitimacy. Coupled with the persistent acts of violence against its own population and against the territorial integrity and political independence of the front-line States, the South African regime has the hallmarks of an international outlaw. Can there be any doubt that the one Member State which has persistently violated the principles of the Charter is South Africa and, therefore, ought to have been the prime candidate for the application of Article 6 of the Charter?
The refusal of South Africa’s collaborators and principal trading partners to carry out their legal and political obligations is reflected in the occasions on which they have used the veto at the Security Council when enforcement action has been proposed because of the illegal occupation of Namibia. This is in the face of the clearest identification of the legal issues by the International Court of Justice in the Namibia opinion of 1971.
There are certain basic legal conclusions that can be safely arrived at which would provide the tools for the struggle against apartheid.
Firstly, it is now recognised that the right of self-determination is not only a legal right at the level of customary international law but is also part of the peremptory rules of international law, otherwise known as jus cogens;
Secondly, that there exists at the level of customary international law a norm of non-discrimination which, as a result of judicial interpretation is also part of jus cogens;
That the particular form of racialism and colonialism, elevated to a philosophy of the State, is a striking example of a breach of these norms and that a State which persistently flouts these norms is illegitimate, with resulting consequences for the illegitimate entity, together with international responsibility for other States, organisations, corporations and individuals;
The question of reparation for the crime of apartheid now becomes an urgent issue for the international community.
For many years, apartheid, the racist trimming of which camouflages the fascist rule of force, has been denounced in the United Nations as an international crime. Even States such as the United States, the United Kingdom and the Federal Republic of Germany, which in most of the resolutions directed against the apartheid regime abstain from voting or, as far as they are able, prevent sanctions from being imposed against South Africa in the Security Council, no longer deny the criminal nature of the apartheid regime. The struggle against the apartheid regime has therefore entered such a phase that the time has come to examine what possibilities exist for enforcing international responsibility for the apartheid crime; a violation of international law which is of such a magnitude and of such a dimension that it has been recognised as an international crime by the international community as a whole.
South Africa has, under three aspects, been convicted by the General Assembly and the Security Council of the United Nations for having committed serious violations of international law, so-called international crimes, which endanger the maintenance of international peace and security:
For a number of years apartheid as such has been characterised by the General Assembly as a crime against humanity. It suffices to point out the repetition of such statements in resolution 34/93A adopted on 12 December 1979. That assessment was already the basis of the International Convention on the Suppression and Punishment of the Crime of Apartheid. Nowadays it has achieved general validity. That is why in article 19 of the draft of the International Law Commission on the international responsibility of States, apartheid is named, side by side with aggression, the forcible maintenance of colonialism, slavery and genocide, as a typical example of an international crime. A violation of international law is qualified to be an international crime if the wrongful act infringes international obligations that are essential for the protection of fundamental interests of the international community as a whole.
Closely linked with the oppression of the South African people by the apartheid regime is the second aspect, the aggressiveness of the apartheid regime towards other countries. Time and again the General Assembly has condemned the aggressive acts perpetrated by South Africa against neighbouring States and confirmed “that the policies and actions of the apartheid regime constitute a threat to international peace and security.” As an example one may refer to resolution 34/93 A adopted by the General Assembly in 1979. The Security Council, too, already in its resolution 387 (1976), had expressly condemned the aggression committed against the People’s Republic of Angola. South Africa has neither legal right nor warrant to invoke the so-called right of “hot pursuit” over land territory. The countries attacked have the right to seek and obtain assistance in self-defence.
The third aspect under which the crime of apartheid has been condemned by the United Nations is the continued occupation, in violation of international law, of Namibia, after the Mandate had been ended by the General Assembly resolution 2145 (XXI) on 27 October 1969.
The responsibility for the crime of apartheid is not confined to the apartheid regime in South Africa, but extends to its accomplices which artificially keep alive that criminal regime. For a number of years, the General Assembly has stated that the “main obstacle to the liquidation of the racist regime and the abolition of the inhuman and criminal apartheid system is the continuation of its co-operation with the most important Western and other trading partners of South Africa with the racist regime.” The General Assembly has declared “that any collaboration with the racist regime and apartheid institutions is a hostile act against the purposes and principles of the United Nations and constitutes a threat to international peace and security.”
In this context, the General Assembly does not only refer to States, but expressly singles out organisations, transnational corporations and other institutions which continue to collaborate with the racist regime. The Assembly most severely condemned “the activities of all foreign corporations operating in Namibia under the illegal administration of South Africa which are exploiting the human and natural resources of the Territory.” Time and again the General Assembly stated in warning terms that those “States, which give assistance to the colonial and racist regimes in southern Africa, become accomplices in the inhuman practices of racial discrimination, colonialism and apartheid perpetrated by those regimes.”
The charge of collaboration, complicity and participation in the apartheid crime is based solely upon the objective facts of the economic and, if any, military collaboration with the apartheid regime or the fact that some States do not hinder organisations and corporations under their jurisdiction from collaborating with the apartheid regime or institutions of South Africa.
Obviously, all the resolutions adopted by the United Nations proceed from the fact that, after apartheid had been exposed to be a crime against humanity, the very fact of support given to the apartheid regime suffices to establish responsibility for participation in the crime.
In contrast to the proposal submitted by the International Law Commission which tries to make the responsibility for participating in an act contrary to international law dependent on whether the assisting State intended to support the commission of an internationally wrongful act, the General Assembly bases its condemnation solely on the fact that collaboration with a regime or its institutions, the criminal character of which has been established, constitutes in itself a way of taking part in the international crime. This applies not only to actions performed by the States themselves but also to omissions ...
The commission of the crime of apartheid in its various forms results in the international responsibility of South Africa and those countries which aid and abet it and it involves the criminal responsibility of the guilty persons and the participating organisations.
The legal consequences, which result from or are created by the crime of apartheid, differ. They range from the use of military means by the affected peoples and States in exercise of individual and collective self-defence, to economic and political sanctions, and reparation claims and measures of criminal responsibility against persons and organisations. International law has recognised the right of peoples held under colonial or racial domination to overthrow colonial or racial rule. This right to revolt, with the attendant use of force, must not be allowed to be equated with “terrorism” and lawyers have a special duty to draw attention to this important dimension of the law. In addition, the national liberation movement has the right to seek and obtain aid in its struggle against apartheid and colonialism.
In this context, I will confine myself to some aspects of reparation claims and of the criminal responsibility of organisations.
Owing to the present conditions of the struggle against the apartheid regime the main emphasis of the actions, resolutions and deliberations is, as a rule, placed upon the support for the legitimate liberation struggle waged by the peoples of South Africa, the application of more stringent sanctions and their observance as well as the bringing about of a general economic and, in particular, an oil embargo against South Africa…
Within the framework of the possible sanctions against the apartheid regime it would, also with a view to the future enforcement of reparation claims, be particularly important to devote special attention to the careful tracing of those responsible.
If need be, a special set of devices ought to be established. This does by no means refer solely to the criminal responsibility of individuals. For this purpose, there already exists an instrument, the International Convention on the Suppression and Punishment of the Crime of Apartheid, although so far adequate use of it has not been made. This applies, above all, to the international responsibility of States for collaboration with the apartheid regime and the criminal responsibility of banks, monopolies and enterprises for their participation in the apartheid crime.
So far not sufficient attention has been paid to the fact that the criminal responsibility for the commission of or participation in such crimes as defined by the International Convention on the Suppression and Punishment of the Crime of Apartheid does not only apply to individuals but, as article I, paragraph 2, explicitly states, also to organisations and institutions. Although this provision does not go into details about the responsibility of organisations and institutions and the type of punishment to be applied to them, article 10 explicitly empowers the Commission on Human Rights to compile a list not only of the responsible individuals but also of organisations and institutions.
The activities which have been carried out in connection with the Khalifa Report in the Sub-Committee on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights and in the Special Committee against Apartheid establish a good basis for the singling out of those enterprises and organisations which are accused of having participated in the crime of apartheid and must consequently be placed on that list. During the Second World War, the list of the major war criminals did not only contain individuals but also institutions and corporations; the list of apartheid criminals should likewise not be confined to individual persons.
On the other hand, the establishing of the criminal character of an organisation does, unlike in the Charter of the International Military Tribunal and the Control Council law No. 10, aim not merely at prosecuting the members of that organisation. In the case of apartheid crimes, the main emphasis of the criminal responsibility of organisations will be laid on the fact that enterprises, corporations and other organisations, whose participation in the apartheid crime is established, may be expropriated in favour of the people of southern Africa or made liable to pay compensation. The legislation on the expropriation of enterprises and assets of war and Nazi criminals after the Second World War is, in this regard, an interesting precedent.
The practical significance, particularly of these aspects, becomes immediately obvious if it is realised that with the liquidation of the apartheid regime the main criminal, the South African Government in its present structure, disappears.
Regarding the issue of reparation for the damage caused by the apartheid regime, it will be of great political importance that a free and independent South Africa is entitled to claim compensation also from collaborators and organisations and that there exist assets out of which such claims can be satisfied.
The existence of a claim to reparation in cases of a breach of international law is beyond any doubt. It has also been laid down repeatedly and expressly by the United Nations with regard to the crime of apartheid.
After the liquidation of the apartheid regime in South Africa, the South African people and their new authorities will be faced with the problem against whom and out of which assets they are able to enforce or discharge their own claims for reparation and those of their neighbours. In such a situation it will be important to recall that there exists an international responsibility for collaboration and complicity with the apartheid regime. The drawing on assets of institutions of the apartheid regime and its foreign accomplices in South Africa, Namibia and in other countries, for the sake of meeting reparation claims is not only justified but will, in many cases, also be the only effective means. The drawing on Germany’s foreign assets for the sake of meeting reparation claims after the Second World War may serve here as a model.
Another responsibility is offered by the imposition of penalties on corporations, enterprises, banks and other organisations for their participation in the crime of apartheid.
The punishing of organisations, as has expressly been provided by the International Convention on the Suppression and Punishment of the Crime of Apartheid, is by no means an individual phenomenon. In the anti-trust legislation, as well as in legislation on taxes and duties of many countries, a responsibility of organisations for breach of certain regulations has been known for a long time. Punishment ranges from fines to the liquidation of the organisation concerned.
There is no doubt that a new South Africa, when implementing the International Convention on the Suppression and Punishment of the Crime of Apartheid, is entitled to apply such measures when meting out justice against enterprises and organisations which, by their collaboration, took part in the commission of the apartheid crime. The expropriation of the war and Nazi criminals after the Second World War presents itself as a parallel case. Nobody could seriously doubt that a liberated South Africa is under any obligation to repay any debts or loans incurred or received by the apartheid regime and which helped the regime to keep the apartheid rule in power after it had been stigmatised by the United Nations as a crime against humanity. In other words, private rights, contracts and transactions may be affected because of the violation of jus cogens, because overriding rules of jus cogens produce a situation of irreducible obligation that illegal actions be ignored or not be allowed to affect the obligations of other States.
Under the aspect of listing and securing assets which may serve to discharge reparation claims of the peoples of South Africa and its neighbours, activities for the listing of those States, banks, transnational corporations and enterprises which are still collaborating with the apartheid regime and take part in the exploitation of Namibia, are of invaluable importance. It would be necessary to co-ordinate such investigations and to apply more work and wider publicity to them.
Finally, the drawing on such organisations and assets will not only meet claims for reparation. It affects the very roots of the apartheid regime and of racism and will therefore, at the same time, be a decisive step towards the liberation of the peoples of South Africa from the domination and exploitation by the transnational corporations.
Arising out of their right to self-determination, the national liberation movement of South Africa has rights and obligations at the level of international law and international personality. There must be increasing recognition of the primacy of the liberation movement in international and regional organisations.
Where possible, national organisations and individuals should consider bringing actions in their own municipal courts to challenge governmental inactivity or complicity in such matters as the implementation of the arms embargo imposed under Chapter VII of the Charter by the Security Council in November 1977 and possible action under the International Convention for the Elimination of All Forms of Racial Discrimination of 1965.
Action against the South African regime has a clear basis in the development of the rules of the international community. Rules of procedure take second place to the basic rules of the international community, in the United Nations and elsewhere…
According to generally established opinion, the violation of obligations under international law entails the responsibility of the State or any other subject of international law having committed this violation. This responsibility has its foundation in the very nature of present international law, especially in its general principles which are binding for all. It comes into being with the violation itself, irrespective of the question whether the prevailing circumstances allow, at the moment of that violation, the enforcement of this responsibility.
The doctrine of international law prevailing in the socialist countries since long advocates the proposition that the internal structure of present international law and the experience related to the investigation of breaches of international obligations and the responsibility thereof, demand a distinction between two categories of violations of international obligations, namely, between international crimes and other violations. At the beginning of the 1970s, a similar concept was also developed in the deliberations of the United Nations International Law Commission (ILC). In 1976, at the twenty-eighth session of ILC, Rapporteur Ago proposed such a distinction in his fifth report. This proposal was accepted by ILC, which differentiated between international crimes and international delicts.
This concept was the logical outcome of developments, which had been going on in international law since the end of the Second World War - e.g., the differentiation between jus cogens and other norms of international law reflected in the convention on the law of treaties; the implementation of personal responsibility for criminal acts committed in official capacity, as well as the establishment, by the United Nations Charter, of the special competence of the Security Council in the case of threats to or breaches of the peace. Indeed, the development of an international legal order which is characterised by generally recognised and binding basic principles of ... peaceful co-existence and co-operation had to be reflected also in case that these principles are violated.
The differentiation between international crimes and international delicts is based upon the contents of the international obligation violated and the dimension of that violation. Basically, there are three main criteria for characterising an international crime:
This fundamental differentiation between the responsibility for international crimes and for other international delicts is far more than an academic position, but is the result of the correct analysis of the present state of international law and the main tendencies of its development. Still less academic are the consequences which follow from this proposition as to the further codification of international law as well as to its implementation in international practice.
The overwhelming majority of States, international State and non-State organisations, as well as movements, centres and groupings fighting against apartheid, have repeatedly expressed their conviction that apartheid is an international crime in the sense described above. This conviction has been reflected in numerous resolutions and other United Nations documents, as well as in international conventions, especially in the International Convention on the Suppression and Punishment of the Crime of Apartheid which was adopted by the General Assembly in 1973 and came into force in 1976. But we arrive at the same result if we apply certain general principles of present international law which have the quality of jus cogens, the international instruments related to the prosecution and punishment of the crimes of the Nazi regime, and some other international conventions which cover at least certain aspects of the criminal apartheid policies. Rightly, therefore, article 19 of the ILC draft codification on the responsibility of States, mentioned above, expressly denounces apartheid - side by side with aggression, establishment or maintenance by force of colonial domination, slavery and genocide - as a typical example of an international crime.
South Africa has, under three aspects, been convicted by the General Assembly and the Security Council of the United Nations of having committed serious violations of international law, that is, international crimes:
Because of its aggressiveness, which is inherent in the very system of apartheid and repeatedly resulted in heavy aggressive acts against neighbouring States, that is, breaches of peace. This aggressiveness makes the apartheid system a permanent threat to international peace and security, as was spelled out, for the first time, in the General Assembly resolution 2054 (XX) of 1965 and has since been confirmed in numerous resolutions. Thus the responsibility of the apartheid regime under international law results from its crimes against peace and has its legal basis in the generally recognised principles and norms related to the prohibition and punishment of aggression;
Because of its continued illegal occupation of Namibia in defiance of the decision of the United Nations General Assembly of 27 October 1966, which officially abrogated the mandate of South Africa. This continued occupation of Namibia constitutes an aggression against the people of Namibia, aimed at the suppression of its right to self-determination, and an aggressive encroachment of the authority of the United Nations which has decided to take over direct responsibility for the Territory until its final liberation. Thus, the responsibility of the apartheid regime under international law results from the illegal maintenance, by force, of a colonial regime which nowadays is generally recognised as a variant of an international crime;
Because of its institutionalised system and policy of racial segregation and racial discrimination, which constitutes a gross violation of the principles of equality and self-determination, and the barbaric acts of terror which are committed on a mass scale against the black majority in order to maintain the system, constituting a massive violation of fundamental human rights.
Thus, the responsibility of the apartheid regime under international law results from a crime against humanity. As known from the comprehensive information which has been accumulated, and is still being accumulated by the liberation movements, the United Nations, anti-apartheid centres and other bodies, this crime against humanity materialises in numerous individual criminal acts, which entail individual responsibility. But it should be pointed out that it is the system itself, its political, legal and institutional foundations and structure, as well as the whole policy based upon it, which constitutes a crime against humanity, a criminal regime under international law.
This assessment is the main basis of the International Convention on the Suppression and Punishment of the Crime of Apartheid. Indeed, the adoption and the coming into force of this Convention marked an important step in the course of codification of international law and in the struggle against apartheid. The Convention supplements the legal foundations of this struggle, applies generally recognised principles of international law to the special situation of apartheid, describes the various forms of commission of the crime of apartheid as a crime against humanity, defines those responsible and regulates a variety of forms of penal responsibility, which can be implemented by individual States.
Considering the significance of the Convention, it is to be welcomed that the number of States having entered into the treaty grew considerably during the first Decade to Combat Racism and Racial Discrimination from 1973 to 1983. By 1 September 1983, 74 States had ratified the Convention, among them the socialist countries and quite a number of non-aligned countries, but, significantly, none of the developed Western countries. Rightly therefore, the documents of the Second Decade to Combat Racism and Racial Discrimination, proclaimed by the United Nations, at its thirty-eighth session, make it one of the main tasks of this Decade to increase further the number of participants in the international instruments in order to strengthen their universal effectiveness.
The fact that none of the Western countries acceded to the Convention until now is - on the legal level - nothing else than a form of indirect support for the apartheid regime on the part of those States which, as is well known, co-operate with that regime also in the political and economic fields. In face of the clear and detailed text of the Convention, it is not convincing to advance, as a number of representatives of Western countries did, the argument of uncertainty and vagueness as a pretext not to accede to the Convention. I would also like, in this context, to recall that during the preparatory stages, only very few States voted against the text while most of the Western States abstained. This demonstrates that the international consensus on the criminal character of apartheid is much broader than is reflected by the number of ratifications of the Convention.
Though the significance of the Convention and the necessity to strengthen its universal validity is beyond any doubt, it should be pointed out that the responsibility for apartheid as an international crime was not introduced into international law by this Convention. The Convention starts from this responsibility rooted in international instruments as well as in international customary law existing already before the Convention, and regulates in greater detail one of the main aspects of apartheid as an international crime, that is, as a crime against humanity, and some of the main forms of responsibility, above all of a penal character.
If we consider the three aspects of apartheid as an international crime, it is obvious that it is a particularly heavy and dangerous violation of international law because this violation has its roots in the economic structure and the political power system itself and, therefore, is a continued, permanent and systematic violation, something which has sometimes been called “permanent delict” in the international law doctrine. Characterising the apartheid system per se as being contrary to international law and constituting an international crime means that all measures taken by this system, especially all those executing the force of state power in order to maintain and implement the system, are to be regarded as exercising wrongful use of force in the sense of an international crime.
Consequently, the international community does not confine itself to condemning individual wrongful and criminal acts of the apartheid regime, though, of course, it is very important to do this comprehensively and as effectively as possible, but demands the total eradication of apartheid as a socio-economic, political and legal system. This demand is fully justified in the light of international law because a system which itself is the source of permanent and massive criminal violations of international law ceases to be a domestic affair of the State concerned and becomes itself an international affair.
The assessment of a violation of international law an as international crime is, inter alia, reflected in the amount and the forms of responsibility which result from this violation, that is, in the kind of sanctions and the possibilities of international and national action. It would be erroneous to derive from the notion of international crime that the responsibility for that crime is exclusively of a penal character. The notion of international crime is a notion sui generis of international law; though it contains some elements which usually are known in national criminal law, it comprises, at the same time, also other elements which result from the special nature of international law.
The characteristic feature of an international crime, as contrasted with other international delicts, is that it, in principle, can cause all the main forms of responsibility known in international law. These are, inter alia:
The right of individual and collective self-defence. This right can be exercised either by the State which is victim of such a crime or - in the case of colonial and racist regimes - the peoples who are deprived of their fundamental rights, especially the right to self-determination. This is the root of the right of the oppressed peoples to fight with all means at their disposal, including armed struggle, for their right to self-determination which is not (as President Reagan alleges) “international terrorism” but, on the contrary, the just struggle against the official terrorism which constitutes the international crime. It entails, at the same time, the special responsibility of the criminal system for the brutal suppression of the liberation movements of these peoples and the duty of all States to assist the oppressed peoples in their just struggle.
The right of the Security Council to decide on mandatory sanctions against the State committing the international crime. The Security Council, according to Chapter VII of the United Nations Charter, is entitled to take such measures in the case of threat to or breach of international peace and security. Therefore, it is of great significance that the United Nations, for more than two decades, has stressed in numerous declarations and resolutions that apartheid is a permanent threat to international peace and security. In a number of cases, this permanent threat has been converted, by the apartheid State, into actual aggressive acts against its neighbouring States, actual breaches of peace, escalating in the case of Angola to the permanent illegal occupation of parts of the territory, causing thousands of deaths and casualties as well as immense material damage.
It should be pointed out that the nature of this responsibility, in essence, does not result from these individual manifestations of aggressiveness, though, of course, on their part these do entail a special responsibility, but again from the criminal character of the apartheid system itself. Rightly, therefore, the General Assembly and the international public have demanded for a long time that the Security Council decide on mandatory sanctions against the apartheid State. Such a measure, as an international action, would be not only a decisive and necessary step in the practical struggle for the eradication of apartheid, but would, at the same time, be a use of force and coercion, through the channel of the authorised international organisation which is provided for by international law as one of the main means of enforcing responsibility for an international crime.
As is known, the Security Council has, on this very basis, decided on mandatory sanctions against the former racist regime in Southern Rhodesia and on a mandatory arms embargo against South Africa in 1977. It is exclusively due to the resistance of certain permanent members of the Security Council that, until now, more far-reaching sanctions have been prevented and the implementation of this important form of responsibility for an international crime has not been possible.
Suspension of membership rights in international organisations or of membership itself. Generally, this is possible in the case of permanent violation of obligations stemming from the membership of a State in the international organisation concerned. It goes without saying that an international crime such as apartheid constitutes one of the heaviest, most massive and permanent violations of such obligations. Therefore the United Nations, its specialised agencies and other international organisations were fully justified in suspending the membership of South Africa or certain forms of its participation in the activities of the organisations. The principles of State sovereignty and of equality of States, being the underlying principles of international organisations, do not comprise the right to commit international crimes. Consequently, acts which constitute international crimes cannot be regarded as foreign acts of State which have to be respected by other States and international organisations.
Reparation of damages caused by an international crime. Not only States having victims of an international crime are entitled to claims of such reparation, but - in the case of apartheid - also the peoples in the criminal State itself or in the illegally occupied Territory. Of course, in these cases the political preconditions for implementing this kind of responsibility have to be created by the liberation of the peoples concerned, by the eradication of the apartheid system and the colonial occupation of Namibia and the establishment of a democratic State as the result of their victorious struggle. Nevertheless, it is important to stress that these peoples, represented by their legitimate liberation movements, do have these rights already now, according to the principle that responsibility for an international crime emerges at the moment the international crime has been committed, and that they are entitled, with the assistance of the international community, to define the amount and the contents of their claims already now.
- That the criminal State is responsible for all organs which acted on behalf of the State;
- That all organisations, institutions and individuals participating in committing the international crime are responsible;
- That individuals who acted on behalf of the State have no recourse to the excuse that their act had been allowed (or even demanded) by the legislation of the State. On the contrary, as the Convention stipulates very clearly, the promulgation of such legislation itself constitutes an international crime;
- That the penal responsibility results from the international character of the crime, having its base in international law; that, therefore, all States are entitled to prosecute and punish this crime irrespective of the question whether there are special provisions in the domestic system of criminal law. Of course, that does not mean that such a legal basis in the domestic legal system is without importance. Therefore, the Convention, in its article IV, calls upon all States to take the respective legislative, judicial and administrative measures. In accordance with their membership in the Convention, the legislation of the socialist States contains the necessary provisions;
- That these crimes can be prosecuted and punished by the competent organs of any State, irrespective of the question whether the criminal act has been committed within or outside the territory of the punishing State. This universal jurisdiction also results from the character of apartheid as an international crime; it is, therefore, not as pretended by some representatives of Western States in the discussion on the draft Convention - an undue extension of the criminal jurisdiction of States. This is also in full accordance with the concept applied in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
The International Convention does not provide for the establishment of an international court for the punishment of apartheid crimes, and indeed, the international conditions for the establishment of such a court seem to be not there at present. The Convention, on the other hand, does not exclude such an international jurisdiction, but mentions expressly the possibility of an international penal tribunal with respect to those States Parties which shall have accepted its jurisdiction. We find a similar idea in the documents of the International Commission of Inquiry into the Crimes of the Racist and Apartheid Regimes in Southern Africa which, in a number of public sessions, investigated the crimes of the apartheid regime and published its findings.
I would like, in this context, to refer to a significant fact. At the end of 1981/the beginning of 1982, the so-called Contact Group submitted “Principles concerning the Constituent Assembly and the Constitution of an Independent Namibia.” It was proposed that all parties concerned should reach an agreement about these principles prior to independence, and a future Namibian Government should be bound to these principles. It is very interesting to note that these principles contained a provision according to which a future Namibian Government should not be allowed to promulgate a law for the punishment of crimes which had been committed before independence. Significantly, this proposal was submitted by those States, which, until now, were not willing to accept the criminal character of apartheid. Obviously they were concerned about the possibility that a future Namibian Government might not share their position - rightly so, because Namibia has acceded to the Convention in the meantime.
To sum up, we see that the forms of responsibility for the crime of apartheid are comprehensive and that this responsibility is universal in the sense that it comprises rights not only of the direct victims of this crime but also of all States and international organisations. This is also an essential feature of apartheid as an international crime.
As far as the subjects of responsibility for the crime of apartheid are concerned, we have to discern different groups depending upon the legal ground of responsibility and the legal consequences.
According to article X of the International Convention on the Suppression and Punishment of the Crime of Apartheid, the States Parties authorise the United Nations Commission on Human Rights “to prepare, on the basis of reports from competent organs of the United Nations and periodic reports from the States Parties to the present Convention, a list of individuals, organisations, institutions and representatives of States which are alleged to be responsible for the crimes enumerated in article II of the Convention.” A first list of persons allegedly guilty of the crime of apartheid was published in January 1981. This list contains the names of 143 members of the police, the security police and the courts of the South African racist regime, including high ranking officers and a general, held to be responsible for murder, torture and violations of other fundamental rights.
The publication of the list had to be welcomed. But we look in vain for the names of those mainly responsible for the crime of apartheid, the prominent racists, the inventors of apartheid and the many other racists controlling the economic and political system of oppression and exploitation in South Africa. The Chairman of the Special Committee against Apartheid rightly pointed out in his statement to the Commission on Human Rights that “criminal responsibility under the International Convention extends equally to the Ministers of Police and Justice, the Commissioners of the Police, the Heads of the Security Police, as well as judicial officers.”
Attention should also be paid to the positive experience with the lists of Nazi criminals drawn up by the Allied Powers during the Second World War. In addition to the names of mass murderers who had committed crimes in the concentration camps, they also contained the names of the leading figures, including Hitler, of high-ranking officers of the Schutz-Staffel (SS) and the Fascist army, as well as leading representatives of the German monopoly capital.
In South Africa and in Namibia, South African and transnational capital, utilising the racist legislation and practice of apartheid, has for decades drawn huge profits from the exploitation of the discriminated and, therefore, extremely cheap black labour. Time and again, the United Nations and the international public has drawn attention to the fact that the economic activities of the transnational corporations essentially contribute to the maintenance of the apartheid regime, and with that, to the continuation of an international crime. The General Assembly strongly condemned “the activities of all foreign corporations operating in Namibia under the illegal administration of South Africa which are exploiting the human and natural resources of the Territory.” The Declaration of the First World Conference to Combat Racism and Racial Discrimination stated that “all those who profit from racial domination and exploitation in South Africa ... are accomplices in the perpetration of this crime against humanity.”
That is why the General Assembly requested the Commission on Human Rights, in continuing with its list that is to be compiled according to article X of the Convention, to take into account, inter alia, that transnational corporations, banks and other organisations giving assistance to the apartheid regime become accomplices in the inhuman practices of apartheid.
Indeed, there is already extensive information about this which could be utilised for that purpose. I may refer to the Khalifa Report, which listed about 2,000 of those institutions, or the report entitled “Bank Loans to South Africa 1972-1978” prepared by Beate Klein. Again, in 1982, the United Nations Centre against Apartheid published another alarming report on bank loans to South Africa which reveals that from 1979 to the middle of 1982, 181 banks from 18 capitalist countries gave 57 loans and credits to South Africa totalling $2,756.8 million, a third of this sum coming from 36 banks of the Federal Republic of Germany alone, including successors of those leading German banks which had been deeply involved in the criminal activities of the Nazi Reich.
These studies are invaluable not only for the mobilisation of world opinion today but also as a preparatory step to enforce responsibility for participation in the crime of apartheid in the future.
In recent times, ILC also dealt with the problem of participation of other States in an international crime of a State and the responsibility for it. The draft article 27 defines as participation in the wrongful acts “Aid or assistance by a State to another State, if it is established that it is rendered for the commission of an internationally wrongful act carried out by the latter.” In this case, aid or assistance itself constitutes an internationally wrongful act, even if, taken alone, such aid or assistance would not constitute the breach of an international obligation.
Thus it seems that the ILC draft does not confine itself to the kind of connection between States and the international criminal (aid or assistance) and the objective effect this connection has vis-a-vis the violated international obligation, but introduces the subjective element of the intention to support the other State in committing the internationally wrongful act.
I consider that concept to be too restrictive. At any rate, on this important point we should also have in mind the differentiation between international crimes and other international delicts. The introduction of such a subjective element which, of course, would be denied in most cases and is difficult to be verified seems not to be in accordance with the opinion of the overwhelming majority of States reflected, for instance, in numerous United Nations resolutions. In these documents, the charge of collaboration, complicity and participation in apartheid is based solely upon the objective facts of economic and even military collaboration with the apartheid regime. All the resolutions of the United Nations proceed from the fact that, after the apartheid regime has been exposed to be a crime against humanity, the very fact of support given to that regime suffices to establish responsibility for participation in that crime.
This position should be clear, at any rate, when the Security Council has decided on mandatory sanctions against the apartheid State and individual States that, contrary to their obligations under the United Nations Charter, violate the sanctions, e.g., if a State, contrary to the mandatory arms embargo of 1977, continued to supply military equipment to the racist regime. In this case, when the international crime has been clearly established and specified forms of co-operation with the responsible State have been explicitly prohibited, there can be no room for the excuse that one did not intend to support the commission of an international crime.
There are some experiences in this respect, related to the case of former Southern Rhodesia. As is known, the Security Council decided upon mandatory economic sanctions against the Smith regime under Chapter VII of the United Nations Charter. Later on, the General Assembly condemned a number of States, among them the United States of America, because of violation of these sanctions, and called upon the Security Council to consider, if necessary, mandatory measures against South Africa and Portugal. Obviously, the General Assembly regarded the continued violation of sanctions decided upon by the Security Council as a form of participation in the maintenance of a racist colonial regime on the part of the States concerned, constituting an international crime.
The responsibility of States for the support of apartheid as an international crime is not confined to the direct collaboration from State to State, or to positive acts performed by the States themselves; it applies also to omissions, i.e., their not being active in the suspension of economic relations between corporations, banks etc., under their jurisdiction and institutions of the apartheid regime, let alone the support of such relations by the State through credits, export guarantees, tax policies, etc. Having discussed the Khalifa report, the United Nations Commission on Human Rights called upon “the Governments of the countries where the banks, transnational corporations and other organisations named and listed in the revised report are based, to take effective action to put a stop to their trading, manufacturing and investing activities in the territories of the racist and colonial regimes in southern Africa.”
The enforcement of this responsibility will depend on the further results of the joint struggle of all forces fighting against the crime of apartheid. Nevertheless, to unmask systematically the companies and corporations profiting today from the continuation of the racist regime and to define thoroughly all the accomplices of the apartheid regime is important in providing substantial pre-conditions to register sources on the basis of which responsibility for the crime of apartheid can be enforced when the time is ripe.