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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

3. The Historical and International Context

The approach of this submission is to identify the broad contours of gross violations of human rights during the apartheid era, with a particular focus on the period 1960 to 1993. Within this context, the concomitant responses of the ANC as the leading force in the struggle for democracy, freedom and human rights in South Africa will be explained. The forms of struggle embarked upon by the ANC were in response to the policies, laws and activities of the apartheid regime and at the same had an impact on them. In the final analysis, the reaction of a people to their subjugation will take forms dictated to by the conditions of that subjugation

The thirty years beginning with the Sharpeville shootings in March 1960 (followed by the banning of the ANC and other organisations and the State of Emergency) up to the first democratic elections in April 1994, constitute an identifiable historical period. It was during these three decades that apartheid policies were most expansively and aggressively pursued; that the South African state made a decisive shift towards more overtly authoritarian forms of social control and political repression; and that massive transgressions of basic human rights in South Africa became commonplace, bringing international notoriety to apartheid South Africa.

3.1 Colonialism, dispossession and segregation

It is necessary to emphasise that formal apartheid was preceded by a sustained period of dispossession, denial and subordination. The process of colonial conquest in South Africa lasted for over two centuries; from the destruction of Khoisan communities in the seventeenth and eighteenth centuries, through the bloody century of warfare in the present day Eastern Cape Province, to the military defeats further north in the late nineteenth century. A further crushing assertion of imperial might occurred in 1899-1902 with the subjugation of the Boer republics by British armies.

Modern South Africa was built on the foundations of conquered territories, captive peoples, scorched earth and shattered sovereignties. The "colour bar constitution" of 1910, which brought the Union of South Africa into existence, affirmed white interests at the expense of the black majority. It not only took away some of the rights enjoyed by black voters in the Cape, but also denied any political rights to black people in the other colonies, thus establishing the framework for all-pervasive discrimination and conflict in later years. Government legislated a distinctive form of industrialisation based upon the cheap labour of a disenfranchised majority. Segregation policies divided access to housing, jobs, education and welfare along racial lines.

The 1948 white election saw the accession to power of the National Party. The apartheid policies of the new regime codified, intensified and extended existing disparities between "racial groups" within the South African population. [Further details appear in Section 4.1 below.]

Between 1948 and 1960 curbs upon freedom of movement and on where people might live and work were sharply intensified; racial classification provided the basis for the provision of separate facilities in almost every walk of life; the permissible forms of political behaviour were narrowed. Many political and trade union leaders were banned and/or banished to remote areas under terms of the Suppression of Communism Act of 1950, which denied them recourse to the courts. The arrest of 156 leaders of the Congress Alliance and the protracted Treason Trial was a further instance of the attempts by the state to outlaw the legitimate political demands of the disenfranchised majority.

But when one compares the 1950s with what followed, it is clear that in the 1960s there was a qualitative shift towards more repressive policies and practices by the National Party government. In the political arena, these policies and practices significantly intensified violations of basic human rights, abrogating the rule of law, criminalising a wide range of political activities, and vastly increasing the coercive powers of the state. At the same time, the overall administration of apartheid became increasingly disruptive of people's lives and more devastating in its effects. [For details see sections 4.1 to 4.3 below.]

The specificity of the 1960s is important, for it was also in this decade that the African National Congress was proscribed by the government and consequently turned to underground forms of organisation, and adopted the armed struggle. This response by the ANC is dealt with more fully in Section 5.1 below. For the moment, it is useful to view the early history of the ANC within the context of the South Africa sketched above.

3.2 The history of the African National Congress to 1960

Founded in 1912, the ANC is the oldest national political organisation in South Africa. From the start the ANC's core principles were to promote unity, counter racism and work towards equal rights for all South Africans.

Its formation was a direct response to the 1910 Act of Union which excluded black South Africans from citizenship rights, and constitutionally entrenched minority rule. At the time one of the early activists warned with great foresight:

. "Equal Rights ... is the motto that will yet float at the masthead of the new ship of state which has been launched under the Union, and no other will be permanently substituted while there is one black or coloured man of any consequence or self-respect in the country, or any white man who respects the traditions of free government - so help us God."

Izwi Labantu, 16/02/1909; quoted in A. Odendaal, Vukani Bantu! The Beginnings of Black Protest Politics in South Africa to 1910 (David Phillip, Cape Town, 1984)

To protect the interests of the disenfranchised in the new South Africa of that time, the ANC formed itself as a "Native Parliament". It consistently tried to promote the interests of Africans to oppose "by just means" the colour bar, and to call for "equitable representation" in Parliament and the extension of political and civil rights regardless of race. In a real sense its formation sowed the seeds which reached fruition with the creation of a united South African nation in 1994.

In the early decades of its existence, the ANC was conspicuously committed to act within the law; its methods strictly constitutional - petitions, legal suits, and deputations - even though its representations consistently fell on deaf ears.

Influenced by the international struggle against fascism, the growth of anti-colonial movements in other countries, the formation of the United Nations Organisation and both the intransigence of those in power in South Africa and a growing mood of resistance amongst the black majority, the ANC became more assertive in its demands from the Second World War onwards. The ANC's historic Africans' Claims document of 1943 underlined support for the Atlantic Charter adopted by the Allies as a guide to the creation of a new post-war world order and included a Bill of Rights for South Africa which would ensure full citizenship rights for all - the first such document in our country's history.

In 1949 the ANC adopted a Programme of Action which sought to realise the above objectives, using new methods of direct action such as boycotts, strikes and civil disobedience if necessary. In the Defiance Campaign of 1952 over 8,000 people were arrested for the deliberate contravention of apartheid laws. The Defiance Campaign won mass popular support for the movement and was followed by other protest campaigns in the 1950s - against Bantu Education, against the introduction of passes for women, against farm labour conditions, and against the destruction of Sophiatown.

The militancy that started to take root in this decade, was essentially in response to intensified oppression and repression introduced by the NP government. Instructively, the decade opened with the killing by police of 18 Africans on 1 May 1950. This trend was to continue, culminating in the 1960 Sharpeville massacre.

It is appropriate at this juncture to refer to an observation by former ANC President Oliver Tambo in 1983, which captures not only the essence of this period, but also brings out in bold relief the paradigm of debates in later years and even today:

. "The ANC was non-violent for a whole decade in the face of violence against African civilians...No one refers to Africans as civilians and they have been victims of shootings all the time. Even children - they have been killed in the hundreds. Yet the word has not been used in all these years....But implicit in the practice of the South African regime is that when you shoot an African, you are not killing a civilian".

In 1955, the ANC and its allies convened the Congress of the People, which adopted the Freedom Charter - a powerful call for equal political and civil rights, as well as basic economic and social welfare provisions. Once again the ANC was the first to outline a clear alternative programme, based on non-racialism and universally accepted human rights principles, in opposition to the short-sighted and discriminatory policies of the National Party government.

Despite the new militancy of the 1950s, the ANC remained committed to non-violent, legal forms of struggle. Its dedication to political reform by persuasion rather than by violent means was most memorably, stated by Chief Albert Luthuli in 1952:

. "In so far as gaining citizenship rights and opportunities for the unfettered development of the African people, who will deny that thirty years of my life have been spent knocking in vain, patiently and modestly at a closed and barred door?"

Five years later, when he wrote to Prime Minister Strijdom, urging the calling of "a multi-racial convention to seek a solution to our pressing national problems", he reiterated that the ANC

. "has always sought to achieve its objectives by using non-violent methods. In its most militant activities it has never used nor attempted to use physical force. It has used non-violent means and ways recognised as legitimate in the civilised world, especially in the case of a people, such as we are, who find themselves denied all effective constitutional means of voicing themselves".

If it is to be properly understood, the pattern of South African politics between 1960 and 1993, including the massive violations of human rights by the apartheid regime and the forms of struggle adopted by the liberation movement, need to be located within this historical context.

3.3 Just struggle in the international context

. "Those who make peaceful change impossible make violent change inevitable."

- John F. Kennedy.

The African National Congress was internationally recognised as a liberation movement. It was accorded observer status by most international organisations including the United Nations, the Organisation of African Unity and the Non-Aligned Movement.

The traditional legal view of wars of national liberation was that they constitute a category of internal wars and as such are not subject to international legal regulation. However, from the early 1960s in a number of international legal fora, but more significantly in the United Nations General Assembly, a growing majority supported the view that struggles against colonialism and other forms of oppression in pursuance of the right to self-determination had an international character. The point of departure for most ex-colonial states in the UN was their recognition that this principle imposed an obligation on the colonising power, and established the right of all peoples to the exercise of self-determination. This trend culminated in General Assembly Resolution 1514(XV) of 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples. However, the most important achievement in this respect is the Declaration on Principles of International Law Concerning Friendly Relations, adopted by the General Assembly Resolution 2625 (XXV) in 1970. This Declaration which was adopted in the General Assembly by acclamation, i.e. unanimously without a dissenting vote, gave universal recognition to the legal and binding nature of the principle of self-determination.

In view of these developments, wars of national liberation could no longer be considered as internal wars since they were now regulated by international law. As concerns the legality of the use of force in the context of self-determination, the Declaration provides that:

. "Every State has the duty to refrain from any forcible action which deprives people... of their right to self-determination, freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such people are entitled to seek and receive support in accordance with the purposes and principles of the Charter."

This provision had significant implications for cases of armed resistance.

Firstly, it clearly stated that the "forcible action" or use of force which is prohibited is that emanating from a government in denial of the right to self-determination.

Secondly, armed resistance to forcible denial of self-determination - by imposing or maintaining alien domination by force - is legitimate according to the Declaration. In other words, liberation movements have the right to go to war under the Charter.

Thirdly, the right of these movements to seek and receive support and assistance necessarily implies that they have a locus standi in international law and that third states can assist or even recognise them without this act constituting an intervention in the domestic affairs of the oppressor state.

Although South Africa was considered an independent state and not a colonial power in the strict sense of the word, it was argued and accepted in the United Nations that the self-determination of the South African people had not taken place because of their subjection to legalised racial discrimination by the government through the internal policy of apartheid. The ANC, frustrated in its efforts to achieve democracy peacefully, legitimately took up arms against the apartheid government.

Thus, it would be morally wrong and legally incorrect, for instance, to equate apartheid with the resistance against it. While the latter was rooted in the principles of human dignity and human rights, the former was an affront to humanity itself.

No issue before the United Nations has been more enduring than the discriminatory treatment officially accorded to black people in South Africa; in 1972 the Special Political Committee of the General Assembly devoted no fewer than 19 of its total 51 meetings to discussing apartheid. Between 1946-1948, the General Assembly passed no fewer than 215 resolutions dealing principally or exclusively with South Africa.

In 1965 the General Assembly also adopted the International Convention on the Elimination of All Forms of Racial Discrimination. It declared that the doctrine of superiority based on racial discrimination was morally condemnable, socially unjust and dangerous. In the following year the Assembly took an additional step in its campaign against apartheid, when it affirmed

. "its recognition of the legitimacy of the struggle of the people of South Africa for human rights and fundamental freedoms irrespective of race, colour or creed."

At its twenty-fifth and twenty-sixth sessions the General Assembly adopted a series of Resolutions dealing with apartheid. Most important among the Resolutions was Resolution 2671 of 1970. Apart from declaring that the policies of apartheid were a negation of the Charter of the United Nations and constituted a crime against humanity, this resolution reaffirmed recognition of the legitimacy of the struggle of the people of South Africa to eliminate, by all the means at their disposal, apartheid and racial discrimination and to attain majority rule in the county as a whole, based on universal suffrage.

In 1973, the UN adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid, which also called on State Parties to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish persons responsible for the crime of apartheid.

As early as 1972 General Assembly Resolution 2852(XXV) on Respect for Human Rights in Armed Conflicts had reaffirmed that:

. "Persons participating in resistance movements and freedom fighters in Southern Africa and in territories under colonial and alien domination and foreign occupation who are struggling for their liberation and self-determination should, in case of arrest, be treated as prisoners of war in accordance with the principles of the Hague Conventions of 1907 and the Geneva Conventions of 1949."

This was subsequently formalised by Protocol I of 1977 to the Geneva Conventions of 1949 which applied the totality of the Geneva Conventions of 1949 to wars of national liberation, which was signed by the ANC in 1980. The implication of this was that members of the liberation movements were protected from South African criminal law except where their activities could be characterised as war crimes or crimes against humanity such as genocide. The South African government consistently refused to ratify this Protocol. [Refer to Section 3.5 on the international status of the apartheid regime .]

3.4 Apartheid and human rights

Apartheid was founded on, and represented an intensification of, the colonial system of subjugation of Africans, Coloureds and Indians. The leadership of the National Party based their principles and programmes on doctrines of racial superiority, some of them derived from Nazism, an ideology with which they had identified through the Ossewa Brandwag and other activities during the Second World War. From the crop of OB leaders and operatives emerged political leaders, judges and other exalted persons of the apartheid era. The statement by former Prime Minister BJ Vorster that what in Germany was National Socialism was known as Christian Nationalism in South Africa, succinctly captures the NP's admiration of Nazism.

At the root of their doctrine was the single-minded pursuit of Afrikaner ethnic and white racial dominance, which placed these groups' rights and privileges above everything else. As such, individual interests and rights, let alone those of black people, were to be subsumed under this group mission. The constitutional order was adjusted and readjusted over the decades to pursue this objective: and even today, pursuit of exclusive group interests as pitted against the individual rights of all citizens, constitutes one of the real tensions in the country's body politic.

To entrench and defend such Afrikaner dominance, the NP set about transforming the judiciary, the army, the police, intelligence services, academia, the civil service, the mass media, economic and labour relations and parastatals. A web of secret organisations, primary among which was the all-male, all-Afrikaner Broederbond, was used to maintain a firm grip on the levers of political and economic power.

Apartheid oppression and repression was therefore not an aberration of a well-intentioned undertaking that went horribly wrong. Neither was it, as we were later told, an attempt to stave off the "evil of communism". Its ideological underpinning and the programmes set in motion constituted a deliberate and systematic mission of a ruling clique that saw itself as the champion of a "super-race".

In order to maintain and reproduce a political and social order which is premised upon large-scale denial of human rights, far-reaching and vicious criminal, security and penal codes were necessary. Those who sought to defend the system increasingly relied upon intimidation, coercion and violence to curb and eliminate the opposition that apartheid inevitably engendered. The spectrum of intimidation, coercion and violence is one with which the Truth and Reconciliation Commission is becoming familiar in all its gradations.

At the legal end of the spectrum are Acts of Parliament which defined large areas of political activism as sabotage and terrorism; placed the onus of proof on the accused; made offences retrospective; imposed harsh minimum sentences; equipped the police with sweeping powers and simultaneously subverted an already compromised judicial system. From there, the spectrum extends through psychological and physical abuse of detainees, including torture and death, the extra-legal harassment of individuals whose activities remained legal even within the context of the security laws, the sordid repertoire of "dirty tricks" conducted by statutory and clandestine organs of state, and ultimately to kidnappings, bombings, massacres and murders by hit-squads and "third force" agencies. An attempt will be made below to more systematically detail the repressive framework created under apartheid, and show how this changed in response to changing circumstances during the period under review.

3.5 Apartheid violations of human rights in an international context

The apartheid regime persistently tried to hide behind the idea that what it did to its population was simply a matter of domestic concern, and not the business of the international community. When this failed, the regime adopted a new approach, arguing that the legal and moral basis for international action did not exist and that the description of the apartheid regime as a pariah, an outcast, or an international outlaw was simply the result of a mischievous and malicious campaign by the Third World and its Communist allies.

In particular, the international community recognised that the workings of apartheid - killings, torture, mass removals, violation of basic rights such as freedom of movement, racial discrimination etc.- did not constitute a mere wrong but a crime against humanity, first identified at the Nuremberg Trials and subsequently applied to the apartheid structure under numerous resolutions of the General Assembly and the Security Council, forming part of the practice under international law which is one element of the development of international rules.

Although the apartheid regime was in de facto control of South Africa, it acted without a proper mandate. The defective or illegitimate status of the South Africa regime did not mean, however, that the regime was not accountable in international law for its violent and racist policies, for as the international Court has said:

. "Physical control of territory, and not sovereignty or legitimacy is the basis of State liability affecting other States."

The role of the Security Council in taking decisions binding on the international community was vital, in a legal sense. Since 1962, by increasing majorities, the General Assembly urged states to impose sanctions of various kinds and, since 1965, comprehensive sanctions. The Security Council, through the persistent use of the veto by certain permanent members, thwarted the opinion of the international community that any form of collaboration was, not only morally wrong because it provided aid and succour to apartheid, but was also contrary to the basic rules of international law .

Notwithstanding this, the Security Council unanimously passed resolution 556 in 1984, which encapsulated the legal and political basis for the illegitimacy of the apartheid regime. This resolution reiterated its condemnation of apartheid policy as a crime against humanity; demanded the dismantling of the bantustans, and demanded the immediate eradication of apartheid and the taking of the necessary steps towards the full exercise of the right to self-determination in an unfragmented South Africa.

In 1974 the General Assembly refused to accept the credentials of the South African delegation, in effect barring South Africa from participating in its work. No other state had faced this humiliation, including expulsion or suspension from nearly every inter-governmental and non-governmental international organisation. The reason for such disengagement from normal relations turned on the nature of the regime.

For not only was apartheid an egregious form of gross, flagrant and systematic violation of human rights, it also deprived the majority of the right to self-determination.

An examination of relevant international conventions, declarations, resolutions, judicial decisions and the practice of the United Nations and its organs, and the practice of regional organisations and states, yields affirmation of the following propositions of international law in relation to the apartheid regime:

. Gross and systematic violation of the provision of the Universal Declaration of Human Rights of 1948, especially those provisions which must now be regarded as part of customary international law;

. Control of the black population and their treatment resulted in policies akin to slavery, contrary to a peremptory norm of international law recognised by the World Court in the Barcelona Traction Co. case (1970);

. Apartheid often produced outcomes similar to those of genocide - a practice now proscribed by the international community, leading to criminal sanctions;

. The policies of apartheid were a negation of the United Nations Charter and a crime against humanity, thereby giving universal jurisdiction for its suppression and punishment, on general principles and by treaty;

. The policies and actions of the apartheid regime constituted a serious obstacle to the exercise of the right to self-determination by the oppressed people of South Africa; and the forcible denial of self-determination violated the Charter of the UN and constituted a crime against peace;

. The South African regime had no right to represent the people of South Africa; its illegitimacy arose from the systematic breaches of peremptory rule of international law.

International law was part of the armoury of opposition to apartheid. It validated activities and actions against apartheid and distinguished the correctness of the actions of resistance from the illegality of the regime.

While the ANC from its inception in 1912 articulated human rights for all South Africans in line with internationally accepted democratic norms, the trend on the part of white minority governments was towards a restriction of human rights.

Moreover, unlike the racist state, the ANC took special care after being compelled to take up arms in the 1960s to ensure that its conduct was in compliance with international conventions in situations of armed conflict. It argued, and this was widely accepted internationally, that the struggle against apartheid and white minority rule was comparable to other international struggles against tyranny, for example, the American War of Independence, the war against Nazism, and the numerous anti-colonial struggles in the 20th century.

International precedents support the notion that no equivalence can be made between the defensive violence of the disenfranchised majority and the institutional and overt or covert violence perpetrated in the name of apartheid; in everyday parlance, the violence of a victim fighting back cannot be equated with the malevolent aggression of the rapist.

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