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A review of ‘Getting Away With Impunity: International Criminal Law and South African Apartheid Criminals’

Although apartheid is a crime against humanity under international law, no one has been prosecuted for it. That means criminals who perpetrated this evil system are still free. It is a problem that South Africa – and the world - needs to address, according to a new book.

The book, “Getting Away With Impunity: International Criminal Law and South African Apartheid Criminal”, is written by Dr. Munyonzwe Hamalengwa who has been practicing criminal law in Canada for twenty five years. The book is based on his PhD thesis in Law at Osgoode Hall Law School in Toronto.

Dr. Hamalengwa seeks to answer the following question: if apartheid was declared as a crime against humanity by the International Convention on the Suppression and Punishment of the Crime of Apartheid, a United Nations Convention that was ratified by 110 nations, why has no one ever been prosecuted for this crime? Moreover, the compromise in South Africa between the architects of apartheid and the liberation forces was that those who did not confess to the crime of apartheid would be prosecuted. The few that were prosecuted were not prosecuted as criminals against humanity as the Apartheid Convention required or as stated by the Truth and Reconciliation Commission. They were prosecuted as mere criminals under South African law, which does not bear the same force as prosecution under international criminal law.

Dr. Hamalengwa states that South Africa simply decided that the hearings of the Truth and Reconciliation Commission were accountability enough. That justice and peace have been secured by this process though it is an unfinished business. This inability or unwillingness to prosecute apartheid criminals is a violation of international criminal law. South Africa continues to violate international criminal law as evidenced by its recent decision to let go of Al Bashir of Sudan who is under a warrant for arrest by the International Criminal Court, according to Dr. Hamalengwa in a recent interview.

Dr. Hamalengwa's last chapter concludes that South African racial relations will continue to resemble those of the USA for generations to come. The lack of prosecutions of those who were identified by the Truth and Reconciliation Commission will continue to stir the pot of resentment in South Africa. Apartheid criminals eventually will be brought to account for their crimes. Hamalengwa states that calling for accountability for apartheid criminals is not seeking revenge. It is justice taking its natural course. History is replete with many examples as catalogued by Dr. Hamalengwa.
According to the author, apartheid is a fresh wound. It is an unfinished business. The majority of the perpetrators are still alive. The majority of the evidence is still there. They were named by a commission of inquiry. They have not confessed or apologized. The injustice will not go away until apartheid criminals are brought to account and that is the lesson that history teaches us. The economic disparities between blacks and whites in South Africa continue to feed the historic injustices. Land redistribution has not been aggressively pursued. Reparations that were recommended by the Truth and Reconciliation Commission were never made. South Africa will continue to sit on a time bomb until the ghost of the injustice of apartheid is exorcised by prosecutions or other visible reparations for the crime.

This book has a wide historic survey of how international criminal law can be brought to bear to resolve historic injustices so that criminals do not get away with impunity.

Like almost every book ever written, there are omissions or weaknesses in this book. Reliance on international criminal law to hold regimes accountable for past injustices is a tall order. The application of universal jurisdiction is not yet an international state practice. National sovereignty is still the order of the day. Western nations that designed the current international criminal instruments themselves avoid being caught in their application by either not ratifying the instruments or exempting themselves from being caught. No western country for example ratified the Apartheid Convention because they themselves were engaging in apartheid-like practices so they cannot prosecute apartheid criminals and set a negative precedent against themselves.
Canada, for example, which Dr. Hamalengwa uses as an example that could prosecute apartheid criminals as a number of apartheid doctors escaped to Canada by way of migration, consciously did not name apartheid as a crime against humanity when it domesticated the International Criminal Court statute that identified apartheid as a crime against humanity. The USA has not ratified the ICC statute for fear that its practices abroad would attract international criminal prosecutions. Some scholars have stated that international criminal law is an instrument of politics where western countries label former colonies as criminal states or terrorist states so that they can attack or isolate them. The application of universal criminal jurisdiction is a terrain of struggle and it may be that Dr. Hamalengwa is exposing western hypocrisy in this book.

The book would be strengthened if Dr. Hamalengwa concentrated on identifying domestic processes and constituencies that should propagate the prosecution of apartheid criminals within South Africa. This is an internal process. Universal application even of civil jurisdiction in the United States using the Alien Tort Statute to hold companies that aided and abetted the crime of apartheid to account recently failed. There is no African Union criminal tribunal to prosecute apartheid criminals. Thus, the internal processes and dynamics are critical to holding apartheid criminals to account. There are groups in South Africa like the South African Litigation Centre that must be supported in fighting the impunity of apartheid criminals.

You will do well to buy a copy of this insightful book at K180 from Planet Books at Arcades Shopping Mall (Zambia).



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