Special Hearings — Legal Hearings — 1997-10-27

PROF HINDS: To continue Mr Chairm, and with your patience.  Dealing now with the Genocide Convention. As I indicated the Charter of the International Military Tribunal at Nuremberg by the Allies in 1945 recognised that war criminals were not only those who had committed crimes against peace and violation of the laws and customs of war but those who had carried out crimes against humanity, whether or not such crimes violated the domestic law of the country in which it took place.
 In it's first session in 1946 the U.N. General Assembly affirmed the Charter of the Nuremberg Tribunal in the 2nd Session. It affirmed the basic resolution that genocide was a crime against International Law and those guilty of it were punishable. It has been applied to the infamous extermination of groups like the Jews and Gypsey's in the 2nd World War, the two million victims of Pol Pot, Kymer Rouge, government in democratic Kampachia and less known abominations like the atrosities that were committed are against the Herero Africans in the course of the Colonisation of present Namibia.
 If we look at Article 2 of the Genocide Convention, it sets forth, Mr Chair, the acts which consitute such a crime and whether or not committed in the time of war or in the time of peace, it includes the following acts committed with the intent to destroy or in whole or in part in national ethical, racial or religious groups.  A - the killing of members of the group; 
 B - causing serious bodily mental harm to members of the group; 
 C - deliberately inflicting on the group conditions of life calculated to bring about the physical destruction in whole or in part; 
 D - imposing measures intended to prevent births within the group; 
 E - forcibly transferring children of the group to another group.
 Genocide today, Mr Chair, is recognised by the world community as an international crime, under customary international law even when committed in territories of states that are not parties to the Convention. 
 Now, looking at apartheid in relation to the Genocide Convention, Mr Chairman, apartheid was examined in relation to the Genocide Convention by an ad hoc working group of experts established by Resolution 2.28 of the Commission on Human Rights. They produced the study concerning the questions of apartheid from the point of view of International Penal Law. The following practices Mr Chair, under the laws of apartheid were identified as instances of genocide:
(A) The institution of group areas Bantustan policies which affected the African population by banning them to areas which were totally lacking the preconditions of their traditional professions. The regulation concerning the movement of Africans in urban areas and especially the forcible separation of Africans from their wives during long periods thereby preventing Africans births.
(B) The policies in general which were said to include deliberate malnutrition of large population sectors and birth control of the non-white sector in order to reduce their numbers while it was official policy to favour white immigration.
(C) The imprisonment and ill-treatment of non-white political group leaders and of non-white prisoners in general.
(D) The killing of the non-white population through a system of slave or tied labour especially in so-called transit camps.
At it's 20th session, the General Assembly by resolution 30.68, 28th November, 30th 1973 adopted per an open for signature and ratification the International Convention on the suppression and punishment of the crime of apartheid.
 On November 30th of 1973, the General Assembly adopted the International Convention on the suppression and punishment of the International Crime of apartheid. They relied upon the Chart of the United Nations which all members pledged to work together to achieve universal respect for and observance of human rights and fundamental freedom for all without distinctions of race, sex, language or religion.
 Apartheid constituted a crime under International Law. The situation in South Africa arising out of the official state policy of apartheid establishing two parallel systems of law and government. One for the minority and one for the majority discuss leading this submission was addressed by the World Community more than any other international matter, because not only the 1973 Convention on Apartheid customary International Law and Treaty Law define apartheid as a crime under International Law.
 Another confirmation of its designation of a crime against humanity, Mr Chair, can be seen in the Geneva Conference on Humanitarian Law, which in addition to Protocol 1 of 1977 adopted as an addition to the Geneva Convention of 1949 adds the provision 
"Apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination shall be regarded as in 'grave breaches' of the Protocol when committed wilfully and in violation of the Convention and its Protocol."
 Similarly, Mr Chair, the International Law Commission defined the international crime as a wrongful act which resulted from the breach the state of an international obligation so essential for the protection of fundamental interests of the international community that it's breach is recognised as a crime by that community as a whole constituted an international crime.
 Thereafter the Commission adopted Article 19, which states that an International Crime may result among other examples from 
"A serious breach on a wide spread scale of an International obligation of essential importance of safeguarding the human being such as those prohibited in slavery, genocide and apartheid."
 Mr Chair, I will now just briefly highlight what I have discussed in our submission concerning the gross violations of the Universal Declaration of Human Rights. For example, the imposition of the criminal law and the criminal procedure as methods of political control to implement apartheid policy in violation of the universal declaration of human rights, specifically violate Articles 5, Article 6, Article 7, 8, 9, 10, 11, 12, 18, 19, 20, sub-section 1, 21 sub-section 1 and 21 sub-section 2 of the Universal Declaration of Human Rights.
 The economics exploitation, that is the legally authorised repression of trade unions under apartheid, violated Articles 4, Articles 23 sub 1, Articles 24 and Articles 25 of the Universal Declaration of Human Rights. 
 The Bantustan policy violated the, more specifically, Articles 15 - sub-section 1, 16 sub-section 1, 17 sub-section 1, 25 sub-section 1, and 26 sub-section 1 of the Universal Declaration of Human Rights.
 The legal denial of the Right to Medical Care and Education under apartheid, violated Articles 25 and Article 26 of the Universal Declaration of Human Rights.
 The legal denial of the Right of Access to Public Accommodation and Cultural Life, violated Articles 27 and Article 7 of the Universal Declaration of Human Rights.
 The denial of the Right to International Travel, which Mr Chair, you were specifically victimised of, violated Article 13 of the Universal Declaration of Human Rights.
 Denial of the Press Rights and Free Exchange of Information which many members of the media here experienced, violated Article 19 of the Universal Declaration of Human Rights, and the 1983 South African Constitution which we contend was a political ruse was a continuing violation of Article R21.
 Mr Chair, let me now just briefly address the question which by implication Mr De Klerk made comments to with respect to no democracy in fact or serious democracy, I think was the quote, in fact supported the United Nations General Assembly resolution dealing with apartheid, are thoroughly documented elsewhere in this submission, the General Assembly of the United Nations and other UN bodies took repeated action against apartheid South Africa, but not only 3rd World supporters in the UN General Assembly as Mr De Klerk dismissively suggests decried apartheid as early as 1960 the Security Council considered the question of South Africa's lawlessness prompted by the ruthless killing of unarmed and peaceful demonstrations.
 In Resolution 134 the Security Council called upon South Africa to abandon apartheid. In 1963 the Security Council called upon South Africa to stop killing anti-apartheid leaders and upon our members states to observe non-mandatory arms embargo. That same year the Security Council established a group of experts to examine methods of resolving the present situation in South Africa through peaceful and orderly application of Human Rights Law, based on subsequent recommendation by a group of experts, the Security Council in succeeding resolutions soon strengthened it's call for economic sanctions.
 In Resolution 3.11 of 1972 - the Security Council expresses grave concern at the situation in South Africa constituted a breach of the peace which established the basis for the UN to take measures against South Africa under Chapter 7 of the Charter leading to mandatory arms embargo against the apartheid state. 
 The United States of America, France, Italy and United Kingdom, South Africa's principal trading partners refused to honour the international call for a mandatory and comprehensive arms embargo on the grounds that their national security during the cold war era required a strong western orientated South Africa.
 Mr Chairman, unfortunately, the voting record of my country, the United States of America, on human rights issues motivated for so many years by cold war foreign policy considerations is an embarrassment to me and to millions who joined forces to participate in the economic boycott of apartheid South Africa, the call for the freedom of Nelson Mandela and to pressure the Federal Government to reverse his positions on support of the apartheid Government.
 Let's examine United States record on International Human Rights Conventions at United Nations. The Genocide Convention was signed December 11th of 1948. It took the United States 40 years until November 25th 1988 to sign the Genocide Convention. 
 The Convention on Racial Social and Cultural Rights was signed October 5th of 1977. To this date the United States of America has never ratified that Convention.
 The Convention on Civil and Political Rights was signed on the same day, October 5th of 1977. It took the United States 25 years in order to ratify that Convention.
 The Convention on the Discrimination Against Women was signed in 1980. To this date the United States has not ratified that Convention.
 The Convention on Torture, Inhuman and Degrading Treatment that was signed in 1988. It took six years for the United States to ratify it in 1994 and with respect to the Rights of the Child which was signed in 1995, the United States has not ratified it.
 The United States has never signed nor ratified the Convention on the oppression and punishment of the crime of Apartheid.
 The Western Nations, Mr Chair, motivated not by democratic principles but by narrow economic and political self-interest, empowered the minority regime to wreak havoc and devastation on most of the civilian population of the front-line nations of Southern Africa. They used troops, bombs, tanks, economic sabotage, subversion and assassination from the late 70's.
 Normal life in the region was disrupted, many thousands were made homeless and millions more were affected by famine, resulting from drought and the destruction and diversion of resources, needed to defend these sovereign states from South Africa's assaults.
 The adverse consequences of these lawless incursions, Mr Chair, can still be felt in the region. South Africa has gone to war to protect the apartheid system from what it did describe as destabilisation of the region. In the name of stabilisation Pretoria continued the illegal occupation of Namibia and the destabilisation of the Front-line Government in an effort to destroy and support the base of the ANC and SWAPO. In fact the apartheid government destabilised the entire region in a fruitless effort to reverse the tide of liberation. These efforts like the introduction of the new Constitution undertaken while Ronald Reagan, the staunchest US ally the apartheid regime had ever had was still President of the United States.
 The United States and South Africa became full partners in the war to retain political control in the region and to preserve and insulate the apartheid system. From the time Reagan was elected his administration made clear it's aversion to the government which had chosen socially spires(?) of development. 
 Not only in Southern Africa but in Latin America and Central America as well the Reagan's State Department and Foreign Policy advisors were aware in 1981 that South Africa was close to losing control of the rich resources of the country. The entire balance of power of the region had been radically changed. Angola, Mozambique and Zimbabwe were independent African states. The United Nations which had legal jurisdiction over Namibia had called for South Africa's immediate withdrawal and free and democratic elections to permit its peaceful decolonisation. In South Africa itself the exploited and oppressed majority were increasingly organised in rage and committed to their own liberation. The Reagan Administration, therefore having determined that vital Western interest would be threatened by the elimination of the Pretoria government resolved to forestall mass revolutionary violence in South Africa. 
 Chester Crocker, Assistant Secretary of State for African Affairs observed that the United States should become actively involved in the region to ensure that any changes would be in the best interest of the United States. There was born the strategy of constructive engagement and it was born of two presumptions -
 (1) that change in the region had to be controlled by the United States and that the region had to be stable to ensure the survival of the Pretoria government. Stability meant that the white majority, the white minority government had to stay in power while the Afrikaner ruling party had to appear to be introducing the process of power-sharing with the African population. Stability was necessary because the now free countries of Zimbabwe, Angola and Mozambique could increase their support of the increasingly strong ANC and SWAPO.
 By 1981 Ronald Reagan had so covertly, had also covertly approved a National Security proposal which carried the United States into the alliance with South Africa to wage war on the Front-line States and to rehabilitate the international reputation of the Apartheid Regime.
 There is no room in this submission, Mr Chairman for me to proceed further to outline the collaborative role between the United States and the Apartheid Regime. By the summer of 1986 broad popular support in the United States and Europe for mandatory sanctions against apartheid combined with the revulsion with South Africa as an international pariah and the policy of constructive engagement began to influence US policy. 
 In 1986 the Security Council condemned South Africa for threats and acts of aggression against other states in the region and despite the Reagan Administration's opposition, the United States Senate and House of Representatives, voted to override President Reagan's veto.
 When the UN Security Council attempted to impose economic sanctions against South Africa for it's aggression against Angola, the resolution was vetoed by the United Kingdom. Throughout the 1980's the International struggle against apartheid intensified, supported by nation states and their peoples including most political and economic orientations. 
 The United States and other Western States' policy of constructive engagement did not go unnoticed in the General Assembly which condemned the policies of constructive engagement and active collaboration which the Apartheid Regime followed by governments of certain Western States.
 Mr Chair, as we observe the 50th anniversary of the adoption of the Convention Against Genocide and the Universal Declaration of Human Rights, it is a hope of the world that the experience of South Africa's struggles for liberation and the lessons to be learned from it's history will assist other societies that have not yet confronted their historic legacy of racist separateness.
 And I would like to end by quoting from Ezekiel 18, sub-paragraph 2, and Isaiah 31, 29 of the Old Testament.
A legacy of the sour grapes of the forbears which continue to set their children's teeth on edge is in fact the legacy that has been left by the Apartheid Regime."
Thank you, Mr Chairperson.