The lover of freedom is ever vigilant, and refuses to be fooled by silly things like race and the insensitive opinions of fellow citizens. That is why we defend the societally insensitive display of the old flag, that is why we stand for free speech in general. We understand that liberty is more important than being comfortable and that you also will be judged by the same measure by which you judge, to paraphrase the Gospel of Matthew.
It is important, therefore, to be clear about what ‘crimes against humanity’ are, so we may recognise the environment under which they thrive. It is irritating and hurtful that former president FW De Klerk does not seem to have a clear idea of what crimes against humanity are. But the former president is seemingly not alone; even staunch critics of his uninformed comments seem to be suffering from the same confusion if the gap between their rhetoric and their actions is anything to go by.
The clearest definition of what constitutes a crime against humanity is contained in the Rome Statute of the International Criminal Court (ICC), which is part of international law established by a treaty to which South Africa is a signatory. Article 7 of the statute begins:
“(1) For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:”
It then goes on to list the crimes, which include apartheid itself. For the purposes of this article, we ignore that since the statute does not explicitly list other crimes such as communism. Of most relevance in the case of apartheid is:
“(d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture;”
You can read article 7 for yourself, but it suffices to say, a crime against humanity can be thought of as crime perpetrated on a mass basis. It is a violation of individual liberty writ large, including things like genocide (mass murder directed at a specific group of people), mass rape, mass dispossession and so on. Any of these violations at the individual level are crimes because they violate the natural rights to life, liberty and property; it is considered intolerable for mankind to simply ignore the mass violations of these rights, regardless of state sovereignty.
It is why South Africa’s failure to arrest and hand over Al-Bashir to the ICC remains a stain on this country’s reputation and raises serious doubt about this government’s commitment to justice. Our government failed to take a moral stand against such crimes when it counted, so they cannot claim to be taking one now. But the rest of us should continue doing so.
So, De Klerk is wrong and he was obliged to apologise, but, either way, it is of little consequence. What is of greater consequence is that South Africans have not only failed to punish the perpetrators of the apartheid state’s crimes, or provide redress for victims, but have allowed some of these crimes to continue to this day. (Restitution of property, for example, which should include the handing out of title deeds in the former Bantustans, remains incomplete). In fact, parliament is in the process of passing enabling legislation that could lead to crimes against humanity linked to dispossession: Expropriation without Compensation (EWC).
Some who rightly condemn De Klerk’s statement, as they did an earlier statement to the same effect by Kallie Kriel, CEO of AfriForum, are also calling for the mass dispossession of whites and/or Indians. This hypocrisy reveals that many of those who condemn the statements and opinions of people like De Klerk and Kriel are themselves ignorant of what constitutes a crime against humanity. Perhaps they imagine that the definition depends on their feelings.
Of greatest concern is that many of those who support EWC are sitting members of parliament. They are entrusted with the sacred duty of protecting the integrity of the Constitution, only amending it when absolutely necessary and once consensus is achieved. In fact, they swear to uphold the Constitution, the best defence against new crimes against humanity being perpetrated within our country.
De Klerk was once a powerful man, and lovers of liberty in this country, and elsewhere, pushed him and his colleagues towards reform and the ending of apartheid. They criticised him when he seemed to be faltering, and the Constitution was the result. He is no longer that man, his opinions nowadays are worth about as much as any celebrity, like the singer Steve Hofmeyr or hip-hop artist AKA, for example. The opinions expressed in this article are worth about as much as any of those expressed by the above in terms of how much they affect your day-to-day life.
EWC, on the other hand, is a clear danger to liberty, a potential enabler of future crimes against humanity. It removes the natural constraint on governments to function within the limits of taxation, but more importantly, it treats the ownership of the expropriation target as being illegitimate. While expropriating legitimately acquired private property is not a good thing, most countries treat it as a necessary evil by placing a requirement on the state to compensate the owner for the loss at a price higher than the market value (there are opportunity costs in losing your property; these need to be recognised).
This is not to say it is acceptable for people to simply ignore De Klerk’s comments and focus on his reforms as part of a ham-fisted attempt to defend him. Does this mean that he is forever indemnified in public discourse because he took a brave decision, although one that was forced on him by the economic conditions created by apartheid? What of the victims of the crimes committed by his party? Should they just be grateful he reformed, and accept that for him to acknowledge the nature of the injustice is a bridge too far?
That is also a failure to recognise the nature of these crimes. What happens if someone comes along and does exactly what the apartheid government did, but against racial minorities?
It is time that we demanded consistency from our politicians when it comes to the vital matter of our human rights. We cannot allow ourselves to be distracted by the opinions of a former president, no matter how hurtful they are, while our current leaders propose to enable conditions that could lead to the very same violations of human rights that De Klerk presided over and enabled. And this while our current leaders turn a blind eye to the mass dispossession of people living in rural areas.
We need to be mindful, lest we find ourselves 46 years from now desperately trying to prove that the ANC didn’t commit crimes against humanity because not enough people died.
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