Apartheid (Genocide and Crimes Against Humanity)
Apartheid, the Afrikaans word meaning separateness (literally, apartness), was coined during the 1930s by the Stellenbosch-based South African Bureau of Race Relations (SABRA) to denote the separate development of the races living in South Africa. It has subsequently come to be associated with the racial policy implemented by the National Party government of the Republic of South Africa during its rule in the period 1948 to 1994.
Concept of Apartheid
Perhaps the best synopsis of the policy of apartheid is to be found in the United Nations International Convention Against Apartheid in Sport of 1985:
The expression "apartheid" shall mean a system of institutionalized racial segregation and discrimination for the purpose of establishing and maintaining domination by one racial group of persons over another racial group of persons and systematically oppressing them, such as pursued by South Africa.
Apartheid, as advocated and practiced in South Africa, was structured on three distinct bases:
- separation of sections of the population along racial lines (segregation);
- exploitation of persons of color for the benefit of a privileged white elite (discrimination); and
- repression of opposition to the policy seeking to implement the above (persecution);
Apartheid does not denote the racist sentiments and practices that linger in the hearts and minds and in the personal conduct of many people living in plural
Of all pluralist communities, South African society is perhaps the most diverse. Segregation of the races has been part of the social structure of South Africa ever since the Dutch East India Company, seeking to establish an outpost that would provide the company's fleet with fresh produce while en route to its trading partners in the Far East, took possession of the Cape of Good Hope in 1652. In 1911 Lord Henry de Villiers (Chief Justice of the Union of South Africa) described the racial pattern within the social structures of the country in compelling terms:
As a matter of public history we know that the first civilized legislators in South Africa came from Holland and regarded the aboriginal natives of the country as belonging to an inferior race, whom the Dutch, as Europeans, were entitled to rule over, and whom they refused to admit to social or political equality. We know also that, while slavery existed, the slaves were blacks and that their descendants, who form a large proportion of the coloured races of South Africa, were never admitted to social equality with the socalled whites. Believing, as these whites did, that intimacy with the black or yellow races would lower the whites without raising the supposed inferior races in the scale of civilization, they condemned intermarriage or illicit intercourse between persons of the two races. . . . These prepossessions, or, as many might term them, these prejudices, have never died out, and are not less deeply rooted at the present day among the Europeans in South Africa, whether of Dutch or English or French descent (Moller v. Keimoes School Committee & Another, 1911 A.D. 635, at 643).
During the mid-twentieth century two sets of circumstances were decisive in prompting the National Party of Dr. D. F. Malan (1874959) to select racial segregation as the political mandate it would seek from the predominantly white electorate in the forthcoming elections of 1948. General J. C. Smuts (1870950), Prime Minister in the United Party government, was a man of mature years, and it was rumored that he favored Jan Hofmeyr (1894948), an outspoken liberal known for his nonracist ideology, to become his successor. The second decisive circumstance derived from South Africa's resolve to incorporate South West Africa (Namibia) into the Union of South Africa. South West Africa was placed under South African control in 1919 as part of the mandate system of the League of Nations, and Smuts in 1946 informed the United Nations (UN) of his government's intention to bring the mandate to fruition by transforming South West Africa into a province of the Union. Within the UN India raised objections to this incorporation of South West Africa into South Africa based on South Africa's treatment of Indians and other people of color, under the prevailing laws of the country. The UN offered its good offices to secure a solution to the South Africanndian dispute. In order to gain the support of India for the incorporation of South West Africa, Smuts proposed to extend political rights to South African Indians (the Indians had been disfranchised by the British colonial authorities in 1896). The National Party therefore decided to exploit "the racial scare" as its election strategy and proposed apartheid as a feasible solution to the problem of race relations. To everyone's surprise, it won the 1948 elections, albeit by a narrow margin, and apartheid thus became the official policy of the newly elected government.
Implementation of the Apartheid Policy
In terms of the Population Registration Act of 1950, all South Africans were classified for legal purposes according to the racial categories of white, black, and colored, with the Indian population group constituting a distinct section within the colored community. The racist laws of apartheid South Africa never attempted to define race as such and applied different criteria so as to be able to allocate racial classifications to all its citizens. Being "white" depended on a person's appearance and general acceptance by other members of the white community, whereas being Native/Bantu/black/African depended on a person's belonging to an aboriginal race or tribe of Africa. A "colored person" was defined as someone who was neither white nor black. It is perhaps interesting to note that although Chinese persons were classified as colored, Japanese persons were classified as white.
Based on this classification, apartheid was particularly noted for the totalitarian interference of the state in the private sphere of peoples' day-to-day lives. In apartheid South Africa, the state prescribed, with race as the prime criterion, whom one could marry, where one could reside and own property, what schools and universities one would be allowed to attend, and which jobs were reserved for one. The state dictated to sports clubs whom they could admit as members, and against whom they were permitted to compete. The sick had to be conveyed in racially exclusive ambulances, could receive blood transfusions only from donors of their own racial groups, and could qualify for treatment only in racially defined hospitals. The state even regulated, with race as the prime criterion, who would be allowed to attend church services in some regions, and where one could be buried.
The implementation of segregation in pre-1994 South Africa was designed to secure the political dominance and the economic and social privileges of the white population group. When the Union of South Africa was established in 1910, political rights in the provinces of Natal, the Orange Free State, and Transvaal were almost exclusively confined to whites. Indians had been disfranchised by the British colonial authorities of Natal in 1896, but those who at that time were already registered voters retained their right to vote for life. When the 1948 elections were held, only two Indians were still on the voter rolls. In the Cape of Good Hope, Africans and coloreds had (qualified) franchise rights, and those rights were afforded entrenched protection in the Constitution of the Union of South Africa; however, Cape of Good Hope African voters were disfranchised by the legislature under United Party rule in 1936, and Cape coloreds were deprived of their voting rights by the legislature under National Party rule in 1956. The South African Constitution of 1983 reinstated political rights for coloreds and Indians, but did so on a racist basis. It created segregated legislative chambers for the colored and Indian population groups, elected by the colored and Indian voters (respectively). The constitution was carefully crafted to afford dominance to the white chamber of Parliament in all matters, including those over which the coloreds and Indians supposedly had primary jurisdiction. Because of the constitution's racist design and the political dominance of whites it upheld, only small percentages of the colored and Indian communities exercised their newly acquired political rights.
As prescribed by the Bantu Land Act of 1913 and the Bantu Trust and Land Act of 1936, portions of South Africa were demarcated for exclusive occupation by Africans. Although the African communities comprised approximately 80 percent of the South African population, the land allocated for their occupation constituted no more than 13 percent of the territory comprising the South African state. In 1951 the South African government appointed a commission instructed by the governor-general "to conduct an exhaustive enquiry into and report on a comprehensive scheme for the rehabilitation of the Native Areas with a view to developing within them a social structure in keeping with the culture of the Native, and based on effective socioeconomic planning." The commission, chaired by Frederick Tomlinson, professor of Agricultural Economy at the University of Pretoria, submitted its report to Parliament in 1954. It among other things calculated the costs of extending the African homelands and of creating economic incentives that might prompt Africans to remain in, return to, or settle in their respective ethnic homelands. The government rejected those recommendations as being too costly and instead embarked on a policy of separating the races by means of legal coercion. H. F. Verwoerd (1901966), commonly regarded as the architect of apartheid, transformed the Tomlinson recommendations into a policy that promoted the political "independence" of the black homelands, demarcated on an ethnic (tribal) basis. In due course eight black self-governing territories were proclaimed: Bophuthatswana, Ciskei, Lebowa, Transkei, Venda, Gazankulu, Qwaqwa, and kwaZulu. Four opted for independence: Transkei in 1976, Bophuthatswana in 1977, Venda in 1979, and Ciskei in 1981. In the UN, South Africa claimed that the policy of separate development was congruent with the right of its population groups to self-determination as proclaimed in international law. Not so, responded the UN: The right to self-determination presupposes participation of the people in the legislative and executive structures of the state that determine their fate, whereas the independence of the black homelands was imposed on the peoples of those territories without their consent. Further, the black homelands were never accepted as independent political entities by the international community of states.
The movement of Africans to and within the main employment centers of the country was regulated by the Blacks (Urban Areas) Consolidation Act of 1945. Africans required special permission to enter and to remain within an urban area and had to carry a reference book at all times that would indicate their right to be at a particular place within the countryhe so-called dom pass (dom meaning stupid). As part of the Group Areas Act of 1966 (which consolidated earlier similar legislation), separate residential areas were designated for occupation by whites, Africans, coloreds, and Indians within the towns and cities of the country.
The South African exploitation of the African population group, and to a lesser extent the Indian and colored communities, was carried out in such a way as to preserve the privileged political, economic, and social status of white South Africans in a racially defined elitist oligarchy. Educational facilities, residential areas, and job opportunities reserved for persons of color were considerably inferior to those at the disposal of the dominant white communityoth in quality and in degree of availability. The group areas reserved for occupation by members of a particular population groups other than whites were almost invariably far removed from the business districts and employment centers, and the residential areas reserved for Africans and coloreds were conspicuously inferior, as far as locality, infrastructure, and aesthetic appeal were concerned. When Verwoerd, Minister of Bantu Affairs at the time, introduced in Parliament the Bantu Education Act of 1953, he sought to justify the inferior education of blacks by invoking the system of job reservation imposed on the black community as part of the apartheid system:
The school must equip the Bantu to meet the demands which the economic life . . . will impose on him. . . . What is the use of teaching a Bantu child mathematics when he cannot use it in practice?. . . Education must train and teach people in accordance with their opportunities in life.
Apartheid Enforcement and Apartheid Resistance
These racist accessories of a totalitarian and discriminatory regime did not reflect the "spirit" of those persons who were the victims of their practical impact, and who were a vast majority of the South African nation. Nor were these accessories supported by the moral convictions of the people, or of a majority of the people, or for that matter of any distinct section of the people. The state consequently had to resort to profoundly repressive measuresestrictions placed on freedom of speech and of assembly; erosions of the rule of law and the due process of law; and indifference to the prohibition of torture and of other forms of cruel, inhuman, or degrading treatment or punishment. Included in the security laws of South Africa were those that could be used to authorize the banning of organizations and the subjection of opponents of the system to severe restrictions that could practically amount to house arrest. As part of the Terrorism Act of 1967, persons suspected of having information that pertained to subversive activities could be detained indefinitely. The grounds of their detention could not be contested in a court of law.
Resistance toward the repressive and discriminatory laws of South Africa has a long history. Within the Indian community, Mohandas Karamchand (Mahatma) Gandhi (1869948), who lived in South Africa from 1893 to 1915, initiated a strategy of passive resistance in the furtherance of satyagraha (from satya, meaning truth, and graha, meaning graspinghat is, grasping the truth, or holding onto truth). The African National Congress (ANC) was founded on December 16, 1913, as an organization designed to mobilize the political aspirations of black South Africans. ANC-sponsored anti-apartheid protests were initially entirely peaceful. In 1961 the ANC president, Chief Albert Luthuli (1899967), became the first South African to be awarded the Nobel Peace Prize. The Pan-Africanist Congress (PAC) was formed in 1959 to promote a blacks-only policy for Africa and a more aggressive agenda of resistance. When the ANC and PAC were banned in 1960, many of their leaders and followers went into exile and embarked on an armed struggle against the South African apartheid regime. Umkonto we Sizwe (Spear of the Nation) was established as the armed wing of the ANC, and Poqo as that of the PAC. The African Resistance Movement (ARM), which at times engaged in acts of sabotage, consisted mainly of white intellectuals.
As aggressive opposition to apartheid escalated, the South African government enacted draconian security laws, and engaged in clandestine strategies that amounted to state-sponsored terror violence, in order to retain its illegitimate regime. The Truth and Reconciliation Commission that was established pursuant to the National Unity and Reconciliation Act 34 of 1995 to facilitate the political transition of South Africa to a democracy, and whose committee on human rights violations (chaired by Archbishop Desmond Tutu) was charged with investigating "gross violations of human rights" from 1961 to 1994, recorded the sordid details of overt and clandestine methods used by the security forces to suppress resistance under the headings of bannings and banishments; judicial executions; "public order" policing; torture and deaths in custody; and killing, including many instances of abduction, interrogation and killing, ambushes, the killing of persons in the process of arrest or while pointing out arms, entrapment killing, killing of weak links within the security forces itself; and attempted killings, arson, and sabotage.
Violent confrontation between the South African authorities and groups of persons protesting the atrocities inherent in the policy of apartheid became part of everyday life in the black townships. On March 21, 1960, PAC organized a demonstration in Sharpeville, a black township sixty-five kilometers south of Johannesburg and just north of Vereeniging, in the Transvaal province, protesting the laws that required black citizens to carry passes at all times. The police opened fire on the demonstrators, killing sixty-nine people. On the twenty-fifth anniversary of Sharpeville (March 21, 1985), the police opened fire on a funeral procession in Uitenhage, killing nineteen people (the mourners had come from the black township of Llanga to bury comrades who had been killed while protesting unemployment). States of emergency were proclaimed by the government in 1985 and 1986.
Perhaps the turning point of white rule in South Africa was the Soweto riots of June 16, 1976, when black students staged massive demonstrations protesting the inferior system of Bantu education and a government decision to impose Afrikaans as the language of instruction in the teaching of at least one subject in black schools. The ensuing unrest swept through the entire country, had far-reaching repercussions, and prompted large numbers of young blacks of school-going age to leave the country and join the liberation forces in exile.
Among those who lost their lives in the struggle against apartheid was Black Consciousness activist Steve Biko (1946977), who died on September 11, 1977, of head injuries inflicted by those who held him captive while he was in police custody. Among the religious leaders subjected to profound humiliation because of their opposition to apartheid was Desmond Tutu (1931, Anglican Archbishop of Cape Town and Secretary-General of the South African Council of Churches during the years 1979 to 1984. Perhaps the most celebrated person among the many incarcerated was Rolihlahla (Nelson) Mandela (1918, who, after serving more than twenty-seven years of a sentence of life imprisonment (October 1962ebruary 1990), was released to become the first president of South Africa after its radical transition in 1994 to become a nonracist state.
The trials and tribulations of Mandela commenced with the infamous treason trial (1958961), at which he was among 156 political activists brought to trial following their arrest in December 1956. The accused were all members of a number of organizations comprising the Congress Alliance (the ANC, the Congress of Democrats, the South African Indian Congress, the South African Colored People's Organization, and the South African Congress of Trade Unions). In March 1961 a special criminal court in a unanimous decision acquitted all the accused, holding that the state had failed to prove that the Congress Alliance and its member organizations sought to overthrow the government by violent means or to replace it with a communist regime.
In July 1963 the police raided a house in Rivonia, a suburb on the outskirts of Johannesburg, and, using the newly enacted ninety-days detention law, detained seventeen persons found on the premises. Eleven of those detainees were subsequently brought to trial on charges of sabotage. The Transvaal Provincial Division of the Supreme Court (as it was then called) initially quashed the indictment owing to the state's failure to provide further particulars of the charges. The accused were then rearrested under the ninety-days detention law and thereafter charged with planning a violent revolution and with various acts of sabotage. On June 11, 1964, eight of the accused, including the leaders of Umkonto we Sizwe (Mandela, Walter Sisulu, and Govan Mbeki) were convicted and sentenced to life imprisonment. (At the time, Mandela was already serving a five-year sentence for incitement and leaving the country unlawfully, for both of which he was convicted in 1962.)
International Responses to Apartheid
Apartheid was being widely condemned throughout the world. In 1961 South Africa, on becoming a republic, was forced to withdraw its application to remain a member of the British Commonwealth because of apartheid (when the Union of South Africa acquired full sovereignty in 1931, it was constituted as a monarchy, with the king or queen of England its head of state). During the 1960s and 1970s many countries imposed economic, cultural, and sports eventselated boycotts of South Africa. South Africa was forced out of the Olympic Games after the 1960 games and was formally expelled from the Olympic Games movement in 1970. Following the death of Biko, and in consequence of banning orders issued by the government against persons and organizations expected to be most vocal in their condemnation of his untimely death, the UN Security Council adopted Resolution 418 (1977). The Resolution proclaimed that the situation in South Africa constituted a threat to international peace and security and imposed a mandatory arms boycott against South Africa as a means of counteracting that threat.
It is not uncommon for persons who (quite rightly) condemn criminal conduct perpetrated by state action to (unjustifiably) attach a label to that action that would give it as bad a name as one could possibly conceive, even in instances in which the conduct or condition being condemned does not fit the essential elements of the label. The UN International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 contained in its circumscription of apartheid a passage that suggested that, as part of that policy, the South African government inflicted living conditions on one or more racial groups calculated to cause their physical destruction in whole or in part, whichf it were trueould amount to an act of genocide. In 1985 the UN established an ad hoc Working Group of Experts to investigate violations of human rights in South Africa. In its report, the working group proclaimed that apartheid was a special instance of genocide. However, such is not the case. Apartheid was not devised with special intent to destroy any racial group, in whole or in part, as required by the definition of genocide. Attempts to bring a state policy within the confines of practices that are likely to have an exceptionally strong emotional appeal (thereby distorting concepts that underlie that policy and those practices) may add emotional vigor to one's condemnation of the policy, but ought not to be taken as having literal meaning, for law enforcement purposes, by those charged with the administration of justice.
Apartheid does constitute a crime against humanity under customary international law. The 1965 UN Resolution, Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, thus proclaimed that "the practice of apartheid as well as all forms of racial discrimination threaten international peace and security and constitute a crime against humanity." Inhumane acts resulting from the policy of apartheid were also treated as a crime against humanity in the UN Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968) and in the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). The latter convention listed a number of acts that would constitute the crime of apartheid.
If committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them, namely:
- (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person:
- i. By murder of members of a racial group or groups;
- ii. By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman, or degrading treatment or punishment;
- iii. By arbitrary arrest and illegal imprisonment of members of a racial group or groups.
- (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
- (c) Any legislative measures or other measures calculated to prevent a racial group or groups from participation in the political, social, economic, and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
- (d) Any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
- (e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
- (f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
The task of delineating these "inhuman acts" as personal conduct that could attract criminal prosecution was initially delegated to the ad hoc Working Group of Experts under M. Cherif Bassiouni of De Paul University in Chicago. The draft statute (1980), prepared by the working group rather clumsily, confined criminal liability to "grave breaches of Article II of the Convention for the Prevention and Punishment of the Crime of Apartheid, namely, murder; torture; cruel, inhuman or degrading treatment or punishment; arbitrary arrest and detention." These breaches do not apply to the segregation and discrimination components of apartheid as such, but seemingly only to (some of ) the repressive measures designed to counteract opposition to the policy of apartheid.
Apartheid is identified in the Statute of the International Criminal Court, adopted by the Rome Conference of Diplomatic Plenipotentiaries in 1998, as a crime against humanity. "The crime of apartheid" is defined in the statute as denoting:
. . . inhumane acts of a character similar to those referred to in paragraph (1), committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.
Paragraph (1) referred to in the statute's definition of apartheid makes mention of murder, extermination, enslavement, deportation or the forcible transfer of populations, imprisonment or other severe deprivation of physical liberty, torture, rape or other (specified) forms of sexual violence, persecution, and enforced disappearances. But, again, the essentials of apartheid are not encapsulated in the definition to be applied in order to found the jurisdiction of the International Criminal Court (ICC) the definition is confined to (state security) action that might be resorted to for purposes of maintaining the regime of segregation and racial discrimination. That is, the repression component of the apartheid system becomes the only prosecutable offense. The act of segregation and discrimination will not come within the jurisdiction of the ICC if a state system of racial segregation and discrimination can be maintained without the state's resorting to murder, extermination, enslavement, deportation or the forcible transfer of populations, imprisonment or other severe deprivation of physical liberty, torture, rape or other forms of sexual violence, persecution, or enforced disappearances.
The Demise of Apartheid
Over a two-decade period commencing in 1971, the South African government gradually abandoned some of its practices associated with apartheid, making "concessions" in that year in regard to segregation in sports, and then extending those concessions to the areas of trade union rights for Africans, political rights for coloreds and Indians, and the like. The final demise of apartheid in South Africa was formally announced by President de Klerk (1936 in his opening-of-Parliament address of February 2, 1990. This initiative culminated in the radical transformation of South Africa, as defined in the Republic of South Africa Constitution Act of 1996, into "an open and democratic society based on human dignity, equality, and freedom."
Comparable Systems of Racial Discrimination
Racial discrimination has of course been practiced in many countries other than South Africa. In the United States, for example, the stratagems of racism were sanctioned in the 1895 judgment of the U.S. Supreme Court in the case of Plessy v. Ferguson, which decided that separate facilities for blacks and whites were constitutionally permissible provided the segregated facilities were equal. The U.S. doctrine of separate-but-equal received its death knell in the 1953 judgment of Brown v. Board of Education, wherein it was decided that "in the field of public education the doctrine of 'separate but equal' has no place." The principle enunciated in that case was subsequently extended to apply to all forms of segregation in public places.
In 1965, when Great Britain was contemplating the granting of independence to Southern Rhodesia under a one-person-one-vote dispensation, the minority white government of Prime Minister Ian Smith declared the country independent under a constitution that reserved political rights for whites only. The UN condemned the unilateral declaration of independence, and in Security Council Resolution 221 (1966) decided that the situation in Rhodesia constituted a threat to the peace. Security Council Resolution 232 (1966) imposed mandatory economic sanctions against Rhodesia with a view to bringing the racist regime of Smith to a speedy end. Following a bloody war between the Smith regime and internal resistance movements (with South Africa affording military support to the government forces of Rhodesia), the Lancaster House Agreement was concluded between Great Britain and the main political factions of Rhodesia. It culminated in the establishment of Zimbabwe as an independent state in 1980.
Although racial discrimination as practiced in the United States, Rhodesia, and elsewhere resembled apartheid, the policy as it existed in South Africa contained unique elements that one does not find in the history of any other country. It is perhaps fair to conclude that apartheid, as a special instance of racial discrimination that entails the exploitation of persons of a disadvantaged racial group for the purpose of retaining the privileged status of another, and requiring particularly stringent enforcement measure for its preservation, such as it existed in South Africa, has never found its equal in any other country.
SEE ALSO Convention on Apartheid; Mandela, Nelson; Namibia (German South West Africa and South West Africa); South Africa
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