International Law and the Obligation to Investigate and Punish25
Although it is in principle up to each nation to formulate its own policy with regard to past abuses of rights, a state is not at liberty to adopt measures that conflict with its obligations under international law. In the case of South Africa, which is party to only a very few of the large body of international human rights treaties,26 and has consistently rejected the validity of the numerous resolutions relating to apartheid that have been adopted by the United Nations General Assembly, the state is nevertheless bound by the norms of customary law27 in the field of human rights that have developed over the decades since the second world war.
There are two aspects of this body of international law that are relevant to the question of accounting for past abuses of rights in South Africa. First, the principles of international law that have criminalized policies and practices perfectly legal within South Africa; secondly, the obligation to investigate and punish human rights abuses, including activities that are and have always been illegal under South African law. The first category outlaws the whole corpus of domestic law implementing the racially discriminatory policies of apartheid; the second requires the South African government to punish at the very least those guilty of torture and extra-judicial execution.
The prohibition of systematic racial discrimination has become one of the most firmly-supported elements of international human rights law. Although the specific content of this prohibition is largely founded in treaties,28 virtually all commentators agree that racially discriminatory policies conflict with states' obligations under the U.N. Charter and international customary law. In addition, apartheid as a system has repeatedly been condemned by resolutions of the U.N. General Assembly, and in the Convention on the Suppression and Punishment of the Crime of Apartheid is defined as a crime against humanity, for which international criminal responsibility is engaged. More than one hundred states have become parties to the apartheid convention, supporting the conclusion that it too is approaching the status of customary law: even if it has not reached that point,29 it is clear that mass atrocities committed in the name of apartheid would fall within the wider definition of crimes against humanity, as the law has evolved since the Nuremberg trials that followed the second world war. The "core principle" of that law "is both clear and widely accepted: atrocious acts committed on a mass scale against racial, religious, or political groups must be punished."30 Furthermore, if a future government ratified the apartheid convention - surely one of the first symbolic acts that is likely to be undertaken - it would then be under a positive obligation to punish those responsible for the implementation of the policies of apartheid.
Similarly, South Africa is under an obligation to investigate and punish those other abuses in contravention of international law that have always been illegal under its own domestic law; including, at the least, torture, disappearances and extra-judicial executions. A few international treaties have specifically established the duty to bring those who have violated these rights to justice: these include the Genocide Convention, the Convention Against Torture, and the Geneva Conventions.31 In addition, most human rights treaties require states parties both to respect the rights enumerated and to ensure their enjoyment by all individuals within the country. An important decision under the Inter-American Convention on Human Rights affirmed that:
"This obligation implies the duty ... to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation...."32
Finally, many human rights treaties, and the Universal Declaration of Human Rights, require states parties to provide an effective remedy for abuses. The combination of these provisions is widely accepted to have created a duty to investigate and punish abuses of rights; a duty which has also entered customary law.33
Human Rights Watch believes that the obligation to investigate and punish gross abuses of human rights is clearly established under international law. Consequently, while the exact content of a policy on accountability is up to each state, and an amnesty may be justified in some circumstances, a government is not acting in accordance with its obligations under international law if it purports to grant impunity to those guilty of the most serious crimes. A successor government may therefore validly annul such an amnesty and proceed to hold the guilty responsible for their acts.34
How accountability in accordance with international law may best be achieved will have to be decided in each case by those responsible for engineering a transition to the rule of law. However, Human Rights Watch believes that other conditions must be met for a policy to be legitimate: in particular, a truthful account of past abuses must be established, and the policy must genuinely reflect the will of the people. In this regard, the histories of the different countries of the southern American cone offer some lessons that may be relevant to South Africa.
25 This section is derived in particular from: Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime Yale Law Journal Vol.100 No.8 (June 1991) pp.2537-2615; and Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law California Law Review Vol.78 No.2 (March 1990) pp.449-513.
26 South Africa is a party to the Slavery Convention of 1926 and the four Geneva Conventions on the laws of war of 1949 (but not to their Protocols). It is also bound by the human rights provisions of the United Nations Charter.
27 For a behavioral norm to be defined as part of customary international law it must both be followed in practice, and be acknowledged by states to be legally binding. Evidence that a norm has attained customary law status includes widespread acceptance in treaties, the decisions of international judicial bodies, and the actions of individual states. Inevitably, there will be principles whose status as customary law is uncertain or evolving.
28 Including the International Convention on the Elimination of All Forms of Racial Discrimination (1965) and the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).
29 The Apartheid Convention has been criticized for criminalizing without distinction gross abuses, such as murder or torture of a racial group, and "measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country," whose content is much more vague and could include relatively minor abuses (Art. 2). Its status as part of customary law in all its parts is therefore contestable.
30 Orentlicher, p.2594.
31 The Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Geneva Conventions on the laws of war (1949). However, common article 3 of the Geneva Conventions, which covers internal conflicts, does not include the general duty to bring war criminals to trial.
32 Velasquez-Rodriguez Case, Inter-Am. Ct. H.R. (ser.C) No.4 Para 166 (judgment).
33 Even if South Africa refused to accept that this duty was part of customary human rights law, a new government which ratified treaties such as the Convention Against Torture would be bound by the duty to investigate past abuses under those treaties, even if it could not retrospectively be held to the terms of the treaty which go beyond customary law.
34 Among the Latin American countries, Argentina annulled a self-amnesty proclaimed by the outgoing military government; more recently, on October 10, 1992, the Thai parliament rejected legislation designed to endorse a blanket amnesty for all those involved in pro-democracy demonstrations or their brutal suppression in May 1992, which was declared by former premier General Suchinda Kraprayoon shortly before he resigned in disgrace.