Special Hearings — Legal Hearings — 1997-10-27

PROF HINDS: Good morning. Thank you Mr Chairperson, members of the Commission on behalf of the International Association of Democratic Lawyers, I am pleased to have been afforded the opportunity to share with you our contribution to your historic work.
 The ideal of organisation was formed about 51 years ago in Paris at an International gathering of lawyers who had fought and survived the wars against fascism and participated in the Nuremberg trials. 
 We are a non-governmental organisation with consultative status at Ecosark, Unesco and Unisaf. We are representated at United Nations in New York, Vienna and Geneva. Our organisation has sponsored and coordinated many international fact finding missions, to Chile, Sudan, Guinea Bassau, Zimbabwe (then Rhodesia), Turkey, Northern Island, Haiti, El Salvador, Nicaragua, Korea, Israel the Occupied Terrotories, Japan, Vietnam, Namibia and here in South Africa.
 In 1988 we sponsored legal missions to observe the implementation of United Nations Security Council Resolution 435 in Namibia's electoral transition to independance and in March of 1994 we organised international legal observer missions to the elections here in South Africa.
 Now, my presentation, Mr Chairman will deal with the gross violations of human rights of the apartheid regime under international law.
 By way of a preliminary statement, when I was preparing this submission for the Truth and Reconciliation Commission, documenting the gross violations of human rights committed by the apartheid regime, I had occasion to read Mr F W De Klerk's August 21, 1996 statement and the subsequent March 23rd 1997 submission to the TRC on behalf of the National Party, setting out the National Party's view of the historical context within which the conflicts of the past should be considered.
 I was shocked and dismayed to read his efforts to attempt to debase the cumulative and collective resolve of the vast majority of the nations of the world from every continent meeting at the United Nations determined that "the way in which the South African regime implements the police of apartheid should henceforth be considered the kind of genocide".
 In addition they requested the Commission on Human Rights to call on the general assembly to seek an advisory opinion from the International Court of Justice. In this submission, Mr Chairman, we will attempt to examine the crimes against humanity, deliberately inflicted on the people of South Africa by the apartheid regime both before and after 1960 and we will define these criminal acts in the context of the International Convention on Suppression and Punishment of the crime of apartheid. It's antecedant, the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights which both were unanimously adopted by the General Assembly of the United Nations in December of 1948.
 A fundamental assumption of this submission, Mr Chairperson, is that these acts of the apartheid regime consituted a continuing crime against humanity, throughout the time periods discussed. 
 I am honoured to be given an opportunity to present these views on behalf of the thousands of member lawyers and jurors of the International Association of Democratic Lawyers in over 19 Nations states throughout the world, who despite their different economic, political and social systems, are united in their dedication to the principles of the United Nations Charter.
 As a preliminary note. We note that although one of the specific terms of reference of the TRC in these hearings is in code the rule of the legal system during apartheid period from 1960 to 1994, it is another contention of this submission that any analysis of Apartheid as a crime against humanity must be examined in the respect of its genisis, that is, the conquests, the pillage and the theft of lands from the people's who inhabited them which became the Republic of South Africa.
 Since the mission of the TRC under Section 3 - Sub Section 1, Sub Section (a), of the Promotion of National Unity and Reconciliation Act of No. 34 of 1995 is to "Establish as complete a picutre as possible of the causes, the nature and the extent of the gross violation of human rights under apartheid, this examination and rememberance of the history of minority control of the people of South Africa are an essential aspect of that picture."
 Even Mr De Klerk in his submission on behalf of the National Party while reviewing the stages of National Party's view and Policies, identifies the previous colonial history and the first period of rigid Apartheid between 1948 and 1960 marked by the adoption of comprehensive segretation and security legislation as a primary source of contemporary understanding.
 Mr De Klerk's observation that black people were oppressed by racism codified law and custom elsewhere in the world including the United States of America, is quite accurate. Elsewhere this author has written about gross violations of human rights arising from patterns and practices of racism imposed by the de facto and (indistinct) law of the United States of America.
 Routed in its history of chateau slavery and the conquest of North America by settlers this author filed a petition documenting these gross and reliably attested violations of human rights which was filed before the UN Commission and Human Rights under Ecosaf resolution 1503 in 1978.
 Mr De Klerk is correct in observing that prior to the 2nd World War the European dominated world supported and justified de jure and de facto racism in the United States and the Colonial domination and theft of land and resources of Africa and elsewhere, often under guise of bringing civilisation to the primative natives. But as has also been thoroughly noted and documented elsewhere, most observers pointed a aftermath of the 2nd World War as the formation of the United Nations as the beginning of the modern struggle to implement International Human Rights.
 It should be noted that while the struggle in South Africa was certainly about racism it also was a by-product and a repudiation of the Colonialism which permitted the white minorities control of South Africa and the maintenance of the power required to keep that control.
 It was this kind of group base oppression that the General Assembly addressed in 1960 when it adopted Resolution 1514 on the Granting of Independance to colonial countries and peoples, recognising the passionate yearning for freedom in all dependant peoples in the attainment of their independance and believing that the process of liberation is irresistable and irreversible and that in order to avoid serious crisis an end must be put to colonialism and all practices of segretation and discrimination associated with it.
 In the final section of our submission, Mr Chair, the Role of the United States, the Commonwealth Countries, Germany, France and other first world countries would be explored further. However, these nations inability to transend the economic and political interest that caused them to support the racist regime will also be considered in the context of the popular democratic struggles in these countries which protested the national foreign policies supporting apartheid and ultimately force them to reverse their public policies.
 I would like to respectfully submit to the TRC when they consider Mr De Klerk's remarks about racism elsewhere, that a well known principle of common law be considered and that is that proof of those who escape punishment and retribution for certain transgressions will not exonerate other wrong doers who have committed similar illegal acts. Thus the fact that chattel slavery was justified by the Constitution of the United States that after emancipation de jure and de facto racism continued to stay in the history of the United States, these crimes against humanity were approved and condoned by law and they continued to perpetuate economic, political and social discrimination in the United States does not exonerate, justify or mitigate against the determination that the laws of South Africa which controlled all its institutions from the Colonial beginnings of conquest until 1994 constituted gross violations of human rights under the norms of International Law.
 This submission, Mr Chair, will also briefly consider the colonial racist history as well as the codified apartheid laws of South Africa in support of its assertions that all people of colour of South Africa, whether defined by racist law as African or defined as Indians or defined as Coloureds, were the victims of gross human rights violation under preemptory norms ius cogens of International Law.
 Since these gross human rights violations, Mr Chair, are discussed and documented elsewhere in the submissions were legally sanctioned, as we say in United States under the colour of State Law, the South African legal system prior to 1994 and the lawyers and judges who were the servile minions to the gross violations of human rights discussed here and brought to horrible and vivid life in the individual testimony that have been taken before you, did not merely commit the abhorrent acts of individual criminals, rather, these deliberate and premeditated patterns and practices constitute the minority government's organised efforts by deprivation of their human rights to control and limit the economic social, political and civil activities of the majority of the people of Africa.
 These laws not only sanctioned the gross and pervasive violations of individual human rights, which are the subject matter of your Commission's mandate and this submission, Mr Chair, provides but only the catalyst for the legally permissible torture and murder and other abuses of power undertaken by Law enforcement offices and other representatives of the Apartheid governement about which the TRC has taken such grisly testimony.
 Let me just briefly comment on the Convention on the Prevention and Punishment of the crime of genocide. The Convention on Genocide was unanimously adopted by the United Nations General Assembly on December 9th of 1948 in Paris, one day before the Universal Declaration of Human Rights.
 It is singlularly appropriate that today in South Africa we examine apartheid in the context of these legal manifestations of the collective will of the Nations of the world as the 50th Anniversary of the adoption of both the Genocide Convention and a Universal Decoration on Human Rights are being planned.
 Genocide is a new term for an old crime. It means the deliberate destruction of national, racial, religious or ethnic Groups.
It has been practised through recorded history. The systematic anhialations of millions in the 20th Century because of their religious or ethnic origin so shocked the world that it collectively rejected the traditional contention that such crimes were the exclusive concern of the state that perpetuated them under domestic laws adopted for the purpose of the destruction of the groups deemed inferior.