by G. Brahme
Council did not confine itself to a condemnation of the aggression but demanded explicitly that the Government of South Africa “meet the just claims of the People’s Republic of Angola for a full compensation for the damage and destruction inflicted on its State and for the restoration of the equipment and materials” (resolution 387 (1976) of 31 March 1976).
186 Paper submitted to the International Seminar on the Legal Status of the Apartheid Regime in South Africa and Other Legal Aspects of the Struggle against Apartheid, Lagos, 13-16 August 1984.
The International Crime
According to generally established opinion, the violation of obligations under international law entails the responsibility of the State or any other subject of international law having committed this violation. This responsibility has its foundation in the very nature of present international law, especially in its general principles which are binding for all. It comes into being with the violation itself, irrespective of the question whether the prevailing circumstances allow, at the moment of that violation, the enforcement of this responsibility.
The doctrine of international law prevailing in the socialist countries since long advocates the proposition that the internal structure of present international law and the experience related to the investigation of breaches of international obligations and the responsibility thereof, demand a distinction between two categories of violations of international obligations, namely, between international crimes and other violations.187 At the beginning of the 1970s, a similar concept was also developed in the deliberations of the United Nations International Law Commission (ILC). In 1976, at the twenty-eighth session of ILC, Rapporteur Ago proposed such a distinction in his fifth report.188 This proposal was accepted by ILC, which differentiated between international crimes and international
delicts.189
This concept was the logical outcome of developments, which had been going on in international law since the end of the Second World War - e.g., the
differentiation between jus cogens and other norms of international law reflected in the convention on the law of treaties; the implementation of personal
responsibility for criminal acts committed in official capacity, as well as the establishment, by the United Nations Charter, of the special competence of the Security Council in the case of threats to or breaches of the peace. Indeed, the development of an international legal order which is characterised by generally recognised and binding basic principles of ... peaceful co-existence and co- operation had to be reflected also in case that these principles are violated.190
187 See, e.g., the Draft Codification of Responsibility of States, submitted by Graefrath and Steiniger in 1973, in B. Graefrath, E. Oeser and P. A. Steiniger, Volkerrechtliche Verantwortung der Staaten (Responsibility of States under international law) (Berlin, 1977), pp. 232-233; Volkerrecht (Berlin) , part 2, pp.
260 et seq.
188 A/CN.4/291/Add.2, paras. 26 et seq.
189 Official Records of the General Assembly, Thirty-first Session, Supplement No. 10 (A/31/10), pp. 226 et seq.
190 See B. Graefrath, E. Oeser and P. A. Steiniger, “Internationale Verbrechen - internationale Delikte” (International crimes - international delicts), Deutsche
The differentiation between international crimes and international delicts is based upon the contents of the international obligation violated and the dimension of that violation. Basically, there are three main criteria for characterising an international crime:
(a) It is a wrongful act infringing international obligations that are essential for the protection of fundamental interests of the international community as a whole and which therefore concern the international community as a whole;
(b) It is an especially heavy violation of international law;
(c) It is, for these very reasons, recognised by the international community as being an international crime.
This fundamental differentiation between the responsibility for international crimes and for other international delicts is far more than an academic position, but is the result of the correct analysis of the present state of international law and the main tendencies of its development. Still less academic are the consequences which follow from this proposition as to the further codification of international law as well as to its implementation in international practice.
Apartheid - an International Crime
The overwhelming majority of States, international State and non-State organisations, as well as movements, centres and groupings fighting against apartheid, have repeatedly expressed their conviction that apartheid is an international crime in the sense described above. This conviction has been
reflected in numerous resolutions and other United Nations documents,191 as well as in international conventions, especially in the International Convention on the Suppression and Punishment of the Crime of Apartheid which was adopted by the General Assembly in 1973 and came into force in 1976.192 But we arrive at the same result if we apply certain general principles of present international law which have the quality of jus cogens, the international instruments related to the prosecution and punishment of the crimes of the Nazi regime, and some other international conventions which cover at least certain aspects of the criminal Aussenpolitik (Berlin), No. 3/77, p. 92.
191 E.g., for recent times, see the Declaration and Programme of Action, adopted by the Second World Conference to Combat Racism and Racial Discrimination, Geneva, 1-12 August 1983 (A/CONF/119/26).
192 General Assembly resolution 3068 A (XXVIII) of 30 November 1973.
apartheid policies. Rightly, therefore, article 19 of the ILC draft codification on the responsibility of States, mentioned above, expressly denounces apartheid - side by side with aggression, establishment or maintenance by force of colonial domination, slavery and genocide - as a typical example of an international crime.
South Africa has, under three aspects, been convicted by the General Assembly and the Security Council of the United Nations of having committed serious violations of international law, that is, international crimes:
(a) Because of its aggressiveness, which is inherent in the very system of apartheid and repeatedly resulted in heavy aggressive acts against
neighbouring States, that is, breaches of peace. This aggressiveness makes the apartheid system a permanent threat to international peace and security, as was spelled out, for the first time, in the General Assembly resolution 2054 (XX) of 1965 and has since been confirmed in numerous resolutions.
Thus the responsibility of the apartheid regime under international law results from its crimes against peace and has its legal basis in the generally recognised principles and norms related to the prohibition and punishment of aggression;
(b) Because of its continued illegal occupation of Namibia in defiance of the decision of the United Nations General Assembly of 27 October 1966,193 which officially abrogated the mandate of South Africa. This continued occupation of Namibia constitutes an aggression against the people of Namibia, aimed at the suppression of its right to self-
determination, and an aggressive encroachment of the authority of the United Nations which has decided to take over direct responsibility for the Territory until its final liberation. Thus, the responsibility of the apartheid regime under international law results from the illegal maintenance, by force, of a colonial regime which nowadays is generally recognised as a variant of an international crime;
(c) Because of its institutionalised system and policy of racial segregation and racial discrimination, which constitutes a gross violation of the
principles of equality and self-determination, and the barbaric acts of terror which are committed on a mass scale against the black majority in order to maintain the system, constituting a massive violation of fundamental human rights.
Thus, the responsibility of the apartheid regime under international law results from a crime against humanity. As known from the comprehensive information which has been accumulated, and is still being accumulated by the liberation movements, the United Nations, anti-apartheid centres and other bodies, this
193 General Assembly resolution 2145 (XXI) of 27 October 1966.
crime against humanity materialises in numerous individual criminal acts, which entail individual responsibility. But it should be pointed out that it is the system itself, its political, legal and institutional foundations and structure, as well as the whole policy based upon it, which constitutes a crime against humanity, a
criminal regime under international law.
This assessment is the main basis of the International Convention on the
Suppression and Punishment of the Crime of Apartheid. Indeed, the adoption and the coming into force of this Convention marked an important step in the course of codification of international law and in the struggle against apartheid. The Convention supplements the legal foundations of this struggle, applies generally recognised principles of international law to the special situation of apartheid, describes the various forms of commission of the crime of apartheid as a crime against humanity, defines those responsible and regulates a variety of forms of penal responsibility, which can be implemented by individual States.
Considering the significance of the Convention, it is to be welcomed that the number of States having entered into the treaty grew considerably during the first Decade to Combat Racism and Racial Discrimination from 1973 to 1983. By 1 September 1983, 74 States had ratified the Convention,194 among them the socialist countries and quite a number of non-aligned countries, but, significantly, none of the developed Western countries. Rightly therefore, the documents of the Second Decade to Combat Racism and Racial Discrimination, proclaimed by the United Nations, at its thirty-eighth session, make it one of the main tasks of this Decade to increase further the number of participants in the international instruments in order to strengthen their universal effectiveness.195
The fact that none of the Western countries acceded to the Convention until now is - on the legal level - nothing else than a form of indirect support for the apartheid regime on the part of those States which, as is well known, co-operate with that regime also in the political and economic fields. In face of the clear and detailed text of the Convention, it is not convincing to advance, as a number of representatives of Western countries did, the argument of uncertainty and vagueness as a pretext not to accede to the Convention. I would also like, in this context, to recall that during the preparatory stages, only very few States voted against the text while most of the Western States abstained.196 This demonstrates
194 Status of the International Convention on the Suppression and Punishment of the Crime of Apartheid (A/38/543).
195 General Assembly resolution 38/14. See also paragraph 1 (g) of resolution 32/130 on alternative approaches and ways and means within the United Nations system for improving the effective enjoyment of human rights and fundamental freedoms.
196 In the Commission on Human Rights (2 April 1973) 21 in favour, 2 against; in
that the international consensus on the criminal character of apartheid is much broader than is reflected by the number of ratifications of the Convention.
Though the significance of the Convention and the necessity to strengthen its universal validity is beyond any doubt, it should be pointed out that the responsibility for apartheid as an international crime was not introduced into international law by this Convention. The Convention starts from this responsibility rooted in international instruments as well as in international customary law existing already before the Convention,197 and regulates in greater detail one of the main aspects of apartheid as an international crime, that is, as a crime against humanity, and some of the main forms of responsibility, above all of a penal character.
If we consider the three aspects of apartheid as an international crime, it is
obvious that it is a particularly heavy and dangerous violation of international law because this violation has its roots in the economic structure and the political power system itself and, therefore, is a continued, permanent and systematic violation, something which has sometimes been called “permanent delict” in the international law doctrine.198 Characterising the apartheid system per se as being contrary to international law and constituting an international crime means that all measures taken by this system, especially all those executing the force of state power in order to maintain and implement the system, are to be regarded as exercising wrongful use of force in the sense of an international crime.
Consequently, the international community does not confine itself to condemning individual wrongful and criminal acts of the apartheid regime, though, of course, it is very important to do this comprehensively and as effectively as possible, but demands the total eradication of apartheid as a socio-economic, political and legal system. This demand is fully justified in the light of international law because a the Third Committee of the General Assembly (October 1973) 93 in favour, 1 against, 24 abstentions; in the General Assembly (30 November 1973) 91 in favour, 4 against (United States of America, United Kingdom, South Africa, Portugal), 26 abstentions. See B. Graefrath, “Apartheid - an International Crime,”
Information (edited by the GDR Committee for Human Rights, Berlin), No. 1/74, pp. 3 and 4.
197 The Convention itself mentions, in its preamble, as international instruments the United Nations Charter, the Universal Declaration of Human Rights, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the International Convention on the Elimination of all Forms of Racial
Discrimination and the Convention on the Prevention and the Punishment of the Crime of Genocide.
198 See Volkerrecht (Berlin, 1973), part 2, p. 327.
system which itself is the source of permanent and massive criminal violations of international law ceases to be a domestic affair of the State concerned and
becomes itself an international affair.
Forms of Responsibility
The assessment of a violation of international law an as international crime is, inter alia, reflected in the amount and the forms of responsibility which result from this violation, that is, in the kind of sanctions and the possibilities of
international and national action. It would be erroneous to derive from the notion of international crime that the responsibility for that crime is exclusively of a penal character. The notion of international crime is a notion sui generis of international law; though it contains some elements which usually are known in national criminal law, it comprises, at the same time, also other elements which result from the special nature of international law.
The characteristic feature of an international crime, as contrasted with other international delicts, is that it, in principle, can cause all the main forms of responsibility known in international law. These are, inter alia:
(a) The right of individual and collective self-defence. This right can be exercised either by the State which is victim of such a crime or - in the case of colonial and racist regimes - the peoples who are deprived of their fundamental rights, especially the right to self-determination. This is the root of the right of the oppressed peoples to fight with all means at their disposal, including armed struggle, for their right to self-determination which is not (as President Reagan alleges) “international terrorism” but, on the contrary, the just struggle against the official terrorism which constitutes the international crime. It entails, at the same time, the special responsibility of the criminal system for the brutal suppression of the liberation
movements of these peoples and the duty of all States to assist the oppressed peoples in their just struggle.
(b) The right of the Security Council to decide on mandatory sanctions against the State committing the international crime. The Security Council, according to Chapter VII of the United Nations Charter, is entitled to take such measures in the case of threat to or breach of international peace and security. Therefore, it is of great significance that the United Nations, for more than two decades, has stressed in numerous declarations and
resolutions that apartheid is a permanent threat to international peace and security. In a number of cases, this permanent threat has been converted, by the apartheid State, into actual aggressive acts against its neighbouring States, actual breaches of peace, escalating in the case of Angola to the permanent illegal occupation of parts of the territory, causing thousands of deaths and casualties as well as immense material damage.
It should be pointed out that the nature of this responsibility, in essence, does not result from these individual manifestations of aggressiveness, though, of course, on their part these do entail a special responsibility, but again from the criminal character of the apartheid system itself. Rightly, therefore, the General Assembly and the international public have demanded for a long time that the Security Council decide on mandatory sanctions against the apartheid State. Such a measure, as an international action, would be not only a decisive and necessary step in the practical struggle for the eradication of apartheid, but would, at the same time, be a use of force and coercion, through the channel of the authorised
international organisation which is provided for by international law as one of the main means of enforcing responsibility for an international crime.
As is known, the Security Council has, on this very basis, decided on mandatory sanctions against the former racist regime in Southern Rhodesia199 and on a mandatory arms embargo against South Africa in 1977.200 It is exclusively due to the resistance of certain permanent members of the Security Council that, until now, more far-reaching sanctions have been prevented and the implementation of this important form of responsibility for an international crime has not been possible.
(c) Suspension of membership rights in international organisations or of membership itself. Generally, this is possible in the case of permanent violation of obligations stemming from the membership of a State in the international organisation concerned. It goes without saying that an international crime such as apartheid constitutes one of the heaviest, most massive and permanent violations of such obligations. Therefore the United Nations, its specialised agencies and other international organisations were fully justified in suspending the membership of South Africa or certain forms of its participation in the activities of the organisations. The principles of State sovereignty and of equality of States, being the underlying principles of international organisations, do not comprise the right to commit international crimes. Consequently, acts which constitute international crimes cannot be regarded as foreign acts of State which have to be respected by other States and international organisations.
(d) Reparation of damages caused by an international crime. Not only States having victims of an international crime are entitled to claims of such reparation, but - in the case of apartheid - also the peoples in the criminal State itself or in the illegally occupied Territory. Of course, in these cases the political preconditions for implementing this kind of responsibility have
199 Security Council resolution 232 (1966) of 16 December 1966.
200 Security Council resolution 418 (1977) of 4 November 1977.
to be created by the liberation of the peoples concerned, by the eradication of the apartheid system and the colonial occupation of Namibia and the establishment of a democratic State as the result of their victorious struggle.
Nevertheless, it is important to stress that these peoples, represented by their legitimate liberation movements, do have these rights already now, according to the principle that responsibility for an international crime emerges at the moment the international crime has been committed, and that they are entitled, with the assistance of the international community, to define the amount and the contents of their claims already now.
(e) Penal responsibility of individuals participating in committing
international crimes. It is particularly this kind of responsibility introduced into the international practice, above all, by the prosecution and punishment of Nazi criminals after the Second World War, which the International Convention on the Suppression and Punishment of the Crime of Apartheid has in mind. Starting from the international instruments and the legal
concepts which have been applied in these actions (the so-called Nuremberg principles), the Convention confirms some generally recognised principles, related to this kind of responsibility, inter alia:
- That the criminal State is responsible for all organs which acted on behalf of the State;
- That all organisations, institutions and individuals
participating in committing the international crime are responsible;
- That individuals who acted on behalf of the State have no recourse to the excuse that their act had been allowed (or even demanded) by the legislation of the State. On the contrary, as the Convention stipulates very clearly, the promulgation of such legislation itself constitutes an international crime;201
- That the penal responsibility results from the international character of the crime, having its base in international law; that, therefore, all States are entitled to prosecute and punish this crime irrespective of the question whether there are special provisions in the domestic system of criminal law. Of course, that does not mean that such a legal basis in the domestic legal system is without importance. Therefore, the Convention, in its article IV, calls upon all States to take the respective legislative, judicial and
administrative measures. In accordance with their membership in the Convention, the legislation of the socialist States contains the
201 Article II, paras. (c) and (d), of the Convention.