As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
On Monday Kallie Kriel, Afriforum’s CEO, sparked a furious debate when he claimed that apartheid could not be considered a crime against humanity because not enough people were killed during apartheid to justify using this term. The statement reveals that Kriel is embarrassingly ignorant of international criminal law. But it also reflects a much larger problem: far too many white South Africans – like Kriel – continue to deny the full horror of apartheid, and refuse to admit that they or their parents actively or tacitly propped up the system and still reap the benefits bestowed on them by that system.
Several years ago, at dinner with an old University friend (someone who had become an accomplished novelist), my friend – who was teaching English literature at a liberal arts college in the United States – turned to me after the second glass of wine and flashed me a sad but knowing smile.
“I am trying to write a novel set in South Africa in the late nineteen seventies,” he told me. “It’s about a group of white people who have a wide range of political views.” My friend raised his glass and took a large gulp of his red wine. “I am finding it fucking impossible to do,” he confessed.
“Why is that?” I asked. “Usually white South African novelists get around that problem by telling the story from the perspective of the ‘innocent’ white child, somebody who had not yet been implicated or corrupted by apartheid. I did it myself in my novel.”
“Because, fuckwit,” my friend snorted and gestured towards the other diners (this was in Cape Town, so the diners were almost all white), “if I let the white people – even the children – speak in my novel exactly as they spoke in those days, they would use the “k” word, they would patronise black people, they would say the kinds of racist things that almost all ‘liberal’ white people said in those days about black people. Every character would be a monster!”
My friend passed away before he managed to write that novel. If he had written that novel, Kallie Kriel would probably not have read it. It would have been far too honest about South Africa’s past, and Kriel (along with many other white South Africans) get very angry and defensive when you mention the apartheid past. When you do mention the past, they tend to accuse you of “playing the race card”. Or they implore you to “move on”. Or they accuse you of being stuck in the past and being “divisive”.
Some white Afrikaners (I cannot say with certainty that Kallie Kriel is one of them) will sometimes tell you to let bygones be bygones when you mention apartheid – and will then immediately turn around and tell you about the horrors of the Anglo-Boer War and how the British incarcerated 30 000 women and children in concentration camps. They insist that we forget the recent past in which we and our parents are implicated as oppressors, but wish to remember the distant past when our ancestors were oppressed by the British.
When I reflect on why many white people get angry and defensive when you mention apartheid or when you dare to point out that apartheid was a crime against humanity, it reminds me of a conversation I had several years ago with a German woman at a conference on memory and forgiveness held at Wits University (thanks, Professor Zimitri Erasmus, for organising that conference).
“You know,” the German woman told me while we were sipping coffee in the courtyard of some or other building at Wits University during a break in proceedings, “when I see how many white South Africans respond to any mention of apartheid, I am reminded of that statement well known in Germany that ‘The Germans will never forgive the Jews for Auschwitz.’”
Later I discovered that the phrase was coined by Peter Schönbach, who worked with the German philosopher Theodor Adorno. Adorno later elaborated on this insight, explaining that:
Sometimes the victors are declared [by the former oppressors] to be the cause of what the defeated have done when they were still in charge, and for the crimes of Hitler those are declared guilty who acquiesced his rise to power, and not those who hailed him. The idiocy in all this is in fact an indication of something mentally uncoped-with, of a wound, although the thought of wounds should be dedicated to the victims.
I suspect that when people like Kallie Kriel deny that apartheid was a crime against humanity, they are – so to speak – blaming black people for apartheid. Or put differently, their denial reflects their anger at black people for reminding them that our parents (and sometimes, if we are old enough, us too) were (and sometimes still are) monsters who oppressed (or sometimes continue to use our economic and social power to oppress) black people, and that those of us whose parents did the oppressing are still benefiting from the effects of that oppression.
No two types of oppression are the same. I am therefore not arguing that the Holocaust and apartheid are identical. I am, however, drawing comparisons between the ways in which Germans and white South Africans (some, at least) have responded to being implicated – directly or indirectly – in the ghastly oppression of others.
I invoke this comparison in the days after the Israeli army massacred scores of Palestinians who protested against their oppression by the Israeli state. I am well aware that some Israeli’s deploy the Holocaust as a weapon to avoid taking any responsibility for the actions of their oppressive government. This does not mean that the Holocaust was not a crime against humanity. It would be preposterous to argue that the actions of the current Israeli government somehow excuse the murder of 6 million Jews during the Holocaust.
While there is absolutely no comparison between the recent actions of the Israeli government and the sometimes-bumbling incompetence and corruption of some members of our own government, I am aware that some apologists for corruption and government mismanagement in South Africa deploy apartheid to avoid accountability. This does not – how could it ever? – excuse apartheid or render it non-toxic. Nor could it possibly refute the fact that apartheid is a crime against humanity in which all white South Africans are implicated to some degree.
It is telling that when confronted by the undisputed fact that apartheid was a crime against humanity, some white South Africans indulge in a bit of “whataboutery”. As the erstwhile oppressors playing the victim, they falsely claim that white South Africans are now oppressed by the democratically elected government and invoke this supposed “oppression” to justify their nostalgia for the time when they enjoyed the privileges bestowed on them by a crime against humanity.
This is odd, as white South Africans enjoy the protection provided by the judicially enforceable Bill of Rights and continue to enjoy unparalleled economic prosperity, a prosperity not enjoyed by many black compatriots.
But let me get back to the law. Maybe Kallie Kriel (if he ever read this article) will learn that his denial was factually wrong.
Way back in 1973 the United Nations adopted the Convention on the Suppression and Punishment of the Crime of Apartheid. This Convention came into legal force 3 years later in 1976 after being ratified by the requisite number of states. Article 1 of this Convention states that:
[A]partheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.
The fact that apartheid is a crime in terms of international law was reflected in the provisions of the Rome statute (which created the International Criminal Court) adopted in 2002 which held in article 7(1)(j) that apartheid was a crime against humanity. Section 7(2)(h) of the Rome statute defines the crime of apartheid as:
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.
I am well aware that some white South Africans who support Afriforum will be angered by this article, as it will remind them of the apartheid past, the complicity of white people in maintaining it, and the fact that all of us white people continue to benefit from it (admittedly to different degrees). Alas, the sad thing is that many Afriforum supporters will channel this anger at black people (or at those white people who dare to remind them of our complicity in apartheid).
Which just reminds us that Afriforum and many of its supporters will never forgive black people for apartheid. The only way they can cope with their complicity is to blame the people us white people and our forebears oppressed and exploited.BACK TO TOP