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.
A colleague of mine, Prof Darcy du Toit, sent me an email in which he makes some salient points about the use of the army to quell the xenophobic attacks and asks some searching questions about the underlying causes and how to address them. He was responding to news reports that Lawyers for Human Rights have expressed concern about the army being deployed to quell the ongoing xenophobic violence. The report stated as follows:
While condemning the ongoing attacks, the LHR said deploying the army to police civilians was a concern as there was the lack of a legal framework for the military to get involved in what was essentially a police responsibility. ‘Such use of the military risks exacerbating the situation and creating a security environment similar to that continuously used prior to 1994.
Because his response was too long to post in the comments section, I repost it here:
Does the LHR response not miss the point? It was emphasised that the police remain responsible and the army would only be involved in a supportive capacity. The simple fact seems to be that the available police are too few in numbers to be patrolling all potential scenes of violence. It is certainly true that “use of the military” escalates the situation, but what is the alternative – letting the police continue on their own in the hope that the violence will die down? Or would the precedent of ongoing attacks which the police are powerless to prevent not encourage an even greater escalation of “copy-cat” violence? Might the visible presence of soldiers in the streets not help to discourage the commission of acts of violence in their presence?
Amidst the deep anguish caused by these events there is a danger of some of the fundamental causes of the xenophobic attacks being lost sight of. On the one hand there are legal and moral issues involved. It is wrong and criminal to attack foreigners, especially those from countries which welcomed South African political exiles pre-1990 and supported the struggle against apartheid. Forming such a judgment, however, does not change the ugly reality on the ground.
There may well be criminals involved who exploit the situation to steal and to loot. But it is widely understood that many (or most?) of those involved in the attacks do so not because they are innately criminal or bad. It is widely understood that many of attackers are from the poorest of the poor, reacting against what they see as an endless stream of equally poor refugees settling in their midst, competing for the same pitifully scarce resources, diminishing whatever hopes they may have of bettering their lives and those of their children.
True, the government should have been more pro-active since 1994 at least in changing those bleak conditions. True, President Mbeki should not have closed his eyes to what was happening in
and allowed a situation to develop where additional masses of desperate people would pour into the country. But the government wasn’t, and Mbeki did. Now we are facing the consequences. Zimbabwe
It doesn’t help, in this situation, to let emotion get the better of our judgment. This morning I heard two radio talk-show hosts (on Cape Talk / Radio 702 as well as SAFM) deploring the fact that the violence is against fellow black Africans while European immigrants are not seen as targets – not that Europeans should be attacked, as one talk-show host emphasised, but doesn’t it show “hypocrisy” and “negrophobia” rather than “xenophobia”?
Such reactions ignore the grim reality. Had the poorest of the poor from
Europeand elsewhere been allowed flood into the informal settlements, I have no doubt that they would soon (sooner than black Africans) have come under attack. There is no “hypocrisy” in not attacking white immigrants with whom one is not competing for the means of subsistence, who live in a different world.
Similar loss of perspective is revealed by contrasting the hospitality shown to South African exiles in the 70s and 80s in neighbouring states with the violence now being unleashed against citizens of those countries. The 70s and 80s did not see large numbers of impoverished “economic refugees” from
South Africapouring into the poorest suburbs of Harareand . South African political exiles were by and large sponsored by political organisations, often with funding from international humanitarian organisations, making them less dependent on local economies. The two situations can’t really be compared. All one is left with is a sense of tragedy at the harsh way in which history has turned events on their head – but still we must deal with the consequences. Maputo
If soldiers can place themselves between would-be attackers and potential victims in troubled areas, thereby preventing the latter from getting at the former while alerting the police to incidents and enabling arrests to be made, it will indeed not solve the root causes. But it may give immigrant communities a degree of protection, and a respite from violence, which in past weeks they have not enjoyed. That, I suspect, may be worth more to them than the knowledge that the LHR, like most South Africans, is “condemning” the attacks.
But, most of all, the events should be a wake-up call to the government and all other parties involved – including private citizens – that if we continue to delay the massive economic and social interventions that are needed to start making a difference on the ground, we do so at our peril. We know what the priorities are (housing and infrastructure, schools, hospitals, and the millions of new jobs needed to build and operationalise all these things). We have been exhorted to think “business unusual”. What is needed, besides condemning xenophobia, is an urgent concentration of minds and resources on launching the response that is needed – but urgently.
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