ICJ report: “South Africa and the Rule of Law”

The ICJ released today a detailed Report on South Africa and the Rule of Law.

In the report, the ICJ states that in pursuit of the policy, of apartheid the Government of South Africa has “established an all-embracing network of legislation which denies to a vast majority of the population those opportunities without which the legitimate aspirations and dignity of a human being cannot be realized.”

The 239-page Report has been in preparation for over a year. As a result of its work the Commission finds that the application of the principle of apartheid which has been analysed in this Report is both morally reprehensible and in violation of the Rule of Law. The Report is divided into eleven chapters which describe the effects of the application of apartheid in the following fields:

  • Racial Classification
  • Movement and Residence
  • Work and Trade Unions
  • Political Rights
  • Marriage
  • Equality Before the Law
  • Arbitrary Arrest and Detention
  • Freedom of Opinion and Expression
  • Peaceful Assembly and Association
  • Education
  • South West Africa.

Amongst the documents included in the Report are (i) Petitions and affidavits concerning cases of forced detention of farm labour; (ii) the Draft Constitution of 1942 for the Republic of South Africa, prepared. under the authority of Dr. Malan; and (iii) a statement by Mr. F. Elwyn Jones, Q.C., M.P., who recently went to South Africa as an observer on behalf of the Commission.

Relevant articles of the United Nations Universal Declaration of Human Rights provide the guiding principles which lead the Report to the following conclusions:

  • Rigid racial classification provides the basis upon which all movement and residence of the non-white is controlled and determined according to the labour needs of industry and agriculture.
  • Real freedom of selection and change of employment or improvement of status is virtually non-existent, and effective union representation of the massive non-white labour force is severely limited.
  • More than 10,000,000 people are denied the right to vote in general elections or plebiscite, such as the recent determination of the Republic, and are precluded from having any effective political voice or organisation.
  • Expression of opposition to or protest against the present application of the policy of apartheid constitutes a criminal offence.
  • The non-white is generally required to carry and present on demand documents of identification under the Pass Law system, ‘Which has resulted in various abuses of the law involving arbitrary arrest and detention and creating a system which can be described as legalised slavery (of which full documentation is contained in the Report).
  • The non-white is by law relegated to a permanently unequal status which involves negation of social rights, free choice of marriage or religious worship and restriction of association and assembly.
  • To complete and assure the fulfillment of the policy of separation and inequality there exists a carefully supervised educational system whereby non-whites are to receive instruction solely in preparation for and acceptance of an inferior social, economic and political status.
  • Such discriminatory policy is not only contrary to generally accepted concepts of justice and principles of human rights but also creates a potentially explosive situation which may soon lead to even more widespread internal violence than has already been experienced in South Africa.

The Report also discusses certain problems relating to the application of the policy of apartheid to South West Africa and the international status of that territory. South West Africa is administered under a League of Nations Mandate which South Africa has refused to submit to United Nations trusteeship. The legal status of South West Africa is being brought before the International Court of Justice (The Hague) by Ethiopia and Liberia who question South Africa’s fulfillment of obligations under the mandate and seek transfer of its supervision to the United Nations

In the Conclusion to the Report, the Commission states that while the deep sociological problems confronting the Government of South Africa cannot be minimised, it is apparent that the application of its present policy of apartheid encroaches seriously upon the rights and freedoms of most of the inhabitants of that country. There is evidence, the Commission adds, that the implementation of the policy of apartheid is not supported by the entire white population, which is also restricted thereby, and that there exists some criticism to this effect within South Africa itself. It is in the light of these factors that the Commission has submitted its Report to the world legal community: “The Commission desires… to create an awareness, both in South Africa and abroad, of the full legal and moral implications of the current situation and to stress the pressing need for a change of policy that will bring about understanding and cooperation between the various races.”

The International Commission of Jurists is a non-governmental, non-political organisation which has consultative status with the United Nations. It draws its support from some 37,000 judges, lawyers and teachers of law in over eighty countries. It has recently published a Report by its Legal Inquiry Committee on Tibet and the Chinese People’s Republic. Further reports are now being prepared in connection with the legal situation in Cuba, the Dominican Republic and Spain. An article describing certain legal aspects of the Algerian conflict has just been published in the Bulletin of the International Commission of Jurists, No. 11 (December, 1960).

In January, 1959, the Commission held in India a Congress which was attended by 185 lawyers and jurists from 53 countries, who further clarified and expanded the formulation of the principles of the Rule of Law. In January, 1961, the Commission will hold an African Conference on the Rule of Law in Lagos, Nigeria. It is expected that over 100 lawyers and jurists from thirty African countries will take part in the meeting, the theme of which is “Government Action, State Security and Human Rights”. The Prime Minister of Nigeria, Alhaji Sir Abubakar Tafawa Balewa, will open the Conference.

The Report on South Africa is the result of a long investigation into the situation in that country. The Commission has published a number of articles denouncing the legal and moral aspects of the application of apartheid and has on several occasions sent observers to the interminable Treason Trial. The present Report, South Africa and the Rule of Law, is being sent to the United Nations and is being widely distributed to governments and lawyers throughout the world. The Commission intends to maintain careful surveillance over legal developments in South Africa and to take whatever additional steps it may consider necessary in connection therewith.

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