On June 19, the UN Human Rights Council mandated the High Commissioner for Human Rights to examine systemic racism against Africans and people of African descent by law enforcement agencies in the US and beyond, following the killing of George Floyd.
The council’s resolution A/HRC/ 43/L.50 was unanimously approved and had been preceded by a historic debate on systemic racism, initiated by African states.
This historic debate recalls the efforts at the UN in 1968 by newly independent African states to ensure that a new treaty - designed to ensure criminal accountability for international crimes - specifically included the crime against humanity of apartheid.
As a result of these efforts, the 1968 Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity explicitly includes “inhuman acts resulting from the policy of apartheid” as international crimes that it can never be too late to prosecute. This was the first time the crime against humanity of apartheid was included in an international treaty.
For African states, success in 1968 was not an easy feat, having to overcome the objections of powerful Western states like the US and Great Britain who vehemently opposed any mention of apartheid; opposition, motivated by both their own complicity in aiding and abetting the apartheid state internationally and their own ongoing state-sponsored racial injustice and systemic white supremacy domestically.
Those efforts in 1968 ensued in the aftermath of widespread protests across American cities following the assassination of Martin Luther King Jr, which resonates with the #BlackLivesMatter protests today. While the 1968 protests were sparked off by Dr King’s assassination, it had deeper roots in the long-standing struggle for racial justice in the US and abroad.
Dr King himself had connected the US role in South-east Asia with what was happening in south-west Georgia and East Harlem in his “Beyond Vietnam” speech in April 1967.
These events are a poignant reminder of the deep historical roots and global reach of racial injustice, and the incomplete project of combating racism and dismantling white supremacy in South Africa, the US and globally.
It is against this backdrop that survivors of apartheid crimes, legal experts and human rights activists in South Africa sought (successfully) to have the invitation to the last apartheid president, FW de Klerk, to speak at an American Bar Association conference withdrawn.
There can be no doubt that De Klerk is singularly unfit to speak at a conference about “Lessons Learnt, Courage and Conscience, Social Change and Racism”.
Post-apartheid South Africa continues to suffer from the structural economic and social injustices of the white supremacist government that De Klerk was for decades part of as a member of the National Party and Parliament, and then as State President, while apartheid South Africa continues to inspire white supremacist violence around the world, including mass murderer Dylann Roof who killed nine black Americans at a Church in Charleston in 2015.
In dealing with the TRC, De Klerk consistently refused to accept any responsibility for the gross human rights violations committed under his watch. Since then, both De Klerk and his foundation have continued to suggest that the TRC effectively exonerated him. This is patently false.
In 1998, he took the commission to the Western Cape High Court to prevent it from revealing his role in the Khotso House bombings. These findings were eventually published by the commission in 2003.
The TRC’s Final Report (Volume 5) deals with the systematic pattern and practice of killing, or “eliminating”, activists in the 1980s, which the TRC found was “the expressed policy of the (State Security Council), perhaps the most influential body in South Africa at the time”. Throughout the 1980s, former president De Klerk sat on the State Security Council (SSC), and as president was its de jure leader.
The TRC examined the responsibility of De Klerk and his colleagues through the lens of domestic criminal law, concluding that, at the very least, the SSC’s members were “politically and morally accountable for (these) deaths”.
Had the commission addressed the issue through the lens of international criminal law, it would likely have made a finding of criminal accountability as well.
Since World War II, international law has recognised that military and civilian leaders can be held responsible for international crimes committed by their subordinates when such leaders knew or should have known about such acts, and failed to either prevent or punish them.
In dealing with the SSC, the TRC found that (i) “senior politicians and generals” on the SSC “must have foreseen” that crimes such as extrajudicial killings were being committed pursuant to its directives, and (ii) there was no evidence of any attempt by the SSC to comprehensively investigate these acts, and thereby prevent and punish them.
Given his senior role in the SSC, there are reasonable grounds to believe that, based on the TRC’s findings and the doctrine of superior responsibility, De Klerk has a case to answer under international criminal law for acts committed pursuant to the SSC’s orders that constitute crimes against humanity, and domestically as these international crimes remain prosecutable under South African law today.
As the 1968 Convention confirmed, under customary international law ‘international crimes’ cannot prescribe; and apartheid was recognized as a crime against humanity (as our own Constitutional Court has confirmed).
Most importantly, in 2014 the Constitutional Court confirmed that crimes under customary international law can be prosecuted directly under section 232 of the Constitution. A position which the Government and the NPA expressly adopted in the subsequent debates regarding their decision to leave the International Criminal Court.
De Klerk has been allowed for too long to maintain the narrative of denial.
Now is the time for courageous action once more to address these past injustices, beginning with the prosecution of those most responsible for the crimes against humanity of apartheid.
* Gevers teaches international law at the University of KwaZulu-Natal. Sooka is a human rights lawyer.
** The views expressed here are not necessarily those of Indepedent Media.
Sunday Independent