Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: Thank you very, very much we are grateful for the skilful manner in which you have gone through 125 pages and in the manner in which you have done. Thank you very, very much. Now Hanif.

MR VALLY: : Thank you Mr Chair. Professor Hinds, you've very neatly and lucidly set out the international law position regarding apartheid. The one position coming through many of the submissions we have received from the judges, is the international respectability that they enjoyed, in fact the judges and the legal profession in South Africa enjoyed, this is the position put forward by the judges. Just to quote one of the submissions
"During the apartheid years the Judiciary was the one leg of government that was virtually devoid of international criticism and which was respected by the populous."
 Ignore the second part, but the first part, what is your response to that in terms of the International perspective?

PROF HINDS: That is wholly unsubstantiated, Mr Vally. The fact of the matter is the United Nations and in many of the studies of experts indicated that the very system of apartheid which the judges were in fact the individuals who were not only carrying out the laws, but they ought to have known the illegality under, certainly under International Law, the acts that they were carrying out on the part of the very system, they are attempting at this point to hide behind a facade that suggests that they took an oath of office, they simply were carrying out the functions of the domestic law and therefore they ought to be immune from any liabilities therefrom.
 Just dealing with the question that you have raised with the previous speaker as to whether or not there can be any criminal liability flowing from judicial acts. It is clear to me that in theory, just following the Nuremberg principals that there can certainly be liability as to whether or not they are enforceable, that is the test being whether or not at the time that these individuals were carrying out that they knew or ought to have known that what they were doing was clearly in violation of basic principles of the norms of law and fundamental principles of human rights. I happen to think that a case can be made. Whether or not there is any jurisdiction where they made be tried, I think that is more problematical because I am not sure that they would be able to be tried under domestic jurisdiction for what we would call complicity within the crime of apartheid, but it is clear that they carried out principles where they knew and ought to have known of the intrinsic race bias within the system.  One had to be just blind, deaf or simply an imbecile not to have known this.

MR VALLY: Thank you Professor Hinds. One of the issues the TRC is looking at and it's differing views on this, I would just like to get your position. Should the Truth Commission explicitly endorse the position that you have set out that apartheid was a crime against humanity and if so, why?

PROF HINDS: Mr Chairman, I think that it is a fact that the international community and the bulk of the evidence establishes unquestionably that the world community in terms of customary international law considered apartheid to be a crime against humanity.  The vote at the General Assembly was 91 countries in favour, 21 countries abstained and who were the 4 countries who voted against. The four countries were the same four countries that I mentioned and the interest at stake there were economic and what they called geo-political interest.
 The whole community clearly established that apartheid was a crime against humanity. This Commission could take judicial notice of that particular fact. It does not require the Commission to do anything more than to recognise judicially what existed, in my opinion.

MR VALLY: Professor Hinds, bearing in mind that it is only our interim Constitution, our final Constitution which has explicitly talked about having reference to international standards and international norms, and even now international conventions would only apply if they are not in conflict with domestic law, what obligations did the Judiciary at the time have to prevent these international human rights violations.

PROF HINDS: Well, Mr Vally, there are certain norms that are pre-emptory norms of international law, ius cogens(?) that is norms from which no derogation can be excepted. It is not for example the crime of genocide, it is no defence for someone to say "I didn't know", the law is that they ought to have known, in terms of when you are dealing with pre-emptory norms.
 Given the position taken by the international community with respect to the illegality of the South African Regime by virtue of its violations of the Charter of the United Nations, in terms of Article 55, there is no question about it that those judges who were informed and we have to assume that the judges who were sitting on the High Courts in South Africa were aware of the rulings of the, certainly the International Court in it's decision with respect to the Namibia decision, clearly dealt with the legality of the South African Regime. I would argue that they either knew or ought to have known and therefore they have culpability with respect to the crimes that were committed by the Regime, to the extent that they in the judiciary carried out at the laws whose impact affected the victims of apartheid.

MR VALLY: Thank you, Arch, that's all on my part.

CHAIRPERSON: Any questions from the panel. Wynand?

UNKNOWN: Professor Hinds, can you just explain to us why, if so, I mean my information is that never never was there a tribunal set up to prosecute the crime of apartheid. Can you explain to us why?

PROF HINDS: Mr Chairman, there was a Committee that was chaired by Prof. Basumi, specifically charged with setting up such a tribunal. The Committee in fact prepared a report setting up the procedures for establishing such a tribunal. That required Security Council adoption, and as you know the Security Council has five permanent members and as you know any veto by any one of the members would make any proposals put before the Security Council a nullity.
 One of the reasons for example why, for that matter, there has never been a tribunal set up to try Pol Pot for the atrocities that were committed purportedly by the Khmer Rouge in Cambodia then known as Kampuchea, that again is the same kind of political consideration. It has absolutely nothing to do with considerations of law, it has to do with considerations of politics and that is why a tribunal was never established.

UNKNOWN: May I just ask one other question. In terms of the 73 Convention, the Crime against Apartheid and who were criminals, if I read that definition correctly, then every civil servant is a criminal and could be prosecuted, is that right?

PROF HINDS: I think that the question has always been whether or not individuals knew or ought to have known and in fact could have taken a different act and I think that is the test. And that of course was incidentally the same test with respect to the Nuremberg principles. I mean you are not dealing with any different tests, I mean, could an ordinary soldier be prosecuted?

CHAIRPERSON: Thank you very, very much it is very helpful to us and we are deeply grateful. You may stand down.
 We are trying to make up as it were for a bit of lost time and if we appear a little on edge you will understand we are trying to look laid-back but actually we are churning inside, Liza Keys please. Sorry we have kept you waiting so long and having had a little encounter this morning.