Kill the Boer
Page 29
The mental element has two components: knowledge and intent.19 The perpetrator should have knowledge of the fact that he or she is engaging in genocide. The application of the knowledge component has, however, been deemed troublesome. The existence of a plan or policy to commit genocide is not a legal prerequisite, although the existence of such a plan may become an important factor in determining whether genocide has been committed.20 The more important aspect of the mental element is the question of intent. The level of intent required is in legal terms referred to as dolus specialis, which means that the offender must have a specific intent to commit genocide.21 The International Court of Justice (ICJ) has stipulated the requirement of intent as follows:
It requires the establishment of ‘the intent to destroy in whole or in part,... [the protected] group, as such’. It is not enough to establish, for instance in terms of paragraph (a), that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent [or dolus specialis]. It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part.22
When it comes to farm murders, as has been highlighted in Chapter 8, the available research indicates that the vast majority of perpetrators mention greed or robbery as their main motive for committing these attacks. Even if the perpetrators were to have said that they had committed these crimes because they wanted to murder the farmers, perhaps even because of their race or ethnicity, this alone would still not be enough to constitute genocide, as proof is required that the perpetrator had the intention to destroy the group, either in whole or in part. A murder based on race could be defined as a hate crime, but not as an act of genocide unless this intention can be proven. It has been said that, because of the large scale of genocide, its association with a state plan or policy (although this is not required), and the requirement of a racist climate in public opinion, as a minimum, there is actually no shortage of examples in the case law of perpetrators betraying their intent through public speeches or in meetings with others.23
As atrocious as farm murders are, the scale of it is not comparable to recent genocides across the globe. Without dismissing the extreme levels of violence that often accompany these farm attacks – a level of torture and violence that is comparable or perhaps even worse than what the world has witnessed in recent genocides – these attacks still occur in a manner that is not comparable to the mass killings of 1,5 million Armenians in 1915–1917, 6 million Jews in Nazi Germany and Nazi-occupied countries in 1933–1945 (according to the broad definition of the Holocaust), 2 million Cambodians in 1975–1979, and 800 000 to a million Tutsi Rwandans in three months of 1994.24
These genocides include stories of how Armenian mothers had to leave their dying children by the side of the desert roads and how they desperately tried to give their children away in the hope of saving them from almost certain death,25 or the burning down of entire Armenian towns and villages, killing as many as 60 000 people,26 with some starving Armenians resorting to cannibalism in a last desperate attempt to survive.27
Or the stories of how Jewish families were rounded up, only to be executed. How entire families were put in front of firing squads, to be shot down solely on the basis of their ethnic identity. How children as young as two years old were thrown into fire ovens while still alive. All of this in numbers that would eventually add up to six million deaths.28
Or how 200 Tutsi children had been assembled in a church in April 1994, only to be massacred. How 67 000 bodies were picked up from the streets of Kigali in the first week of the genocide, with a death toll in the city of about 10 000 people per day. How 20 000 people were killed at a Catholic Church compound in three days. In the compound of Butare, an estimated 70 000 people were trapped inside a church compound. The attackers opened fire on them, continuously firing from 10:30 until 17:00, when they finally ran out of bullets. They killed about 40 000 people.29
It should be mentioned again that even in the above-mentioned cases, the international community was very hesitant to label these atrocities as genocide. Commenting on the fact that even some of the most prominent leaders of Nazi Germany – perpetrating arguably the best-known genocide in world history – were not found guilty of genocide, international law expert Philippe Sands writes:
Proving the crime of genocide is difficult, and in litigating cases I have seen for myself how the need to prove the intent to destroy a group in whole or in part, as the Genocide Convention requires, can have unhappy psychological consequences. It enhances the sense of solidarity among the members of the victim group while reinforcing negative feelings towards the perpetrator group. The term ‘genocide’, with its focus on the group, tends to heighten a sense of ‘them’ and ‘us’, burnishes feelings of group identity and may unwittingly give rise to the very conditions that it seeks to address: by pitting one group against another, it makes reconciliation less likely. I fear that the crime of genocide has distorted the prosecution of war crimes and crimes against humanity, because the desire to be labelled a victim of genocide brings pressure on prosecutors to indict for that crime. For some, to be labelled a victim of genocide becomes ‘an essential component of national identity’ without contributing to the resolution of historical disputes making mass killings less frequent.30
As a matter of fact, the first time an international court found a person guilty of the crime of genocide was only in September 1998, and the person was the Rwandan politician Jean-Paul Akayesu.31 However, even in Rwanda, where close to one million people were slaughtered in public in a matter of months, the UN, its Security Council and virtually all the main international role players refused to acknowledge these atrocities for what they were: genocide.32
The chance of having farm murders acknowledged as genocide by the international community is therefore, realistically speaking, close to zero.
ETHNIC CLEANSING
Given the limitations resulting from the narrow definition of genocide, the crime of ethnic cleansing was also defined in the 1990s, during the first stage of the war in Bosnia.33 Ethnic cleansing means rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.34 During the prosecution of Serbian military leaders Radovan Karadžic and Ratko Mladic, the prosecutor was asked to explain what ‘ethnic cleansing’ actually means and how it is different from genocide. He said:
[E]thnic cleansing is a practice which means that you act in such a way that in a given territory the members of a given ethnic group are eliminated. It means a practice that aims at such and such a territory be, as they meant, ethnically pure ... So, in other words, the members of the other group are eliminated by different ways, by different methods. You have massacres. Everybody is not massacred, but I mean in terms of numbers, you have massacres in order to scare these populations ... So whenever you have massacres, naturally the other people are driven away. They are afraid. They try to run away and you find yourself with a high number of a given people that have been massacred, persecuted and, of course, in the end these people simply want to leave. They also submitted to such pressures that they go away. They are driven away either on their own initiative or they are deported. But the basic point is for them to be out of that territory and some of them are sometimes locked up in camps. Some women are raped and, furthermore, often times what you have is the destruction of the monuments which marked the presence of a given population in a given territory, for instance, religious places, Catholic churches or mosques are destroyed. So basically, this is how ethnic cleansing is practiced in the course of this war.35
In short, ethnic cleansing can be described as the systematic purge of the civilian population with a view of forcing it to abandon the territori
es in which it lives.36 The goal is to remove a people and often all traces of them from a concrete territory – ‘to get rid of the “alien” nationality, ethnic, or religious group and to seize control of the territory they had formerly inhabited.’37
Ethnic cleansing could therefore be a form of genocide, but not necessarily, depending on whether the acts committed comply with article II of the Genocide Convention. ‘They might also amount to genocide if associated with an intent to destroy the group,’ writes William Schabas a Canadian expert on the law of genocide and international law. ‘But it does not seem at all helpful to muddy discussions about apartheid, or aggressive war or colonialism by suggesting that in some cases they may also be genocidal.’38 Ethnic cleansing can also be a process of forced deportation or what has been called ‘population transfer’ to get people to move.39 This may be achieved by a combination of systematic attacks on that group and the expropriation of the property of members of that group in order to force them out of the area that has to be ‘cleansed’.
The best way to explain the difference between genocide and ethnic cleansing would be to compare Nazi leader Adolf Hitler with Slobodan MiloševiĆ, leader of the Socialist Party of Serbia. Schabas writes:
Hitler had the modest ambition of eliminating all Jews in Europe, but given the chance he would have extended his murderous campaign to the rest of the world. MiloševiĆ, on the other hand, wanted to drive Muslims from Kosovo, although he seemed untroubled by the idea that they might live elsewhere, in Macedonia or Albania for example.40
The difference here is that Hitler was concerned with genocide, while MiloševiĆ was concerned with ethnic cleansing.
From this perspective one could make a slightly stronger argument in comparing farm murders to ethnic cleansing than to genocide, especially if we were to consider the repeated statements by extremists calling on white farmers to ‘go back to Europe’. The sentiment that ‘Africa is for Africans’ and that ‘white people are just visitors’ who need to obey black South Africans is consistent with the thoughts of an ethnic cleanser. This is, of course, aggravated by the alarming number of people in South Africa who are actively calling for the extermination of white people, but of Boers and/or white farmers in particular. The public comments made by EFF leaders about implementing Zimbabwe-style land grab policies in South Africa to get rid of the Boers are also consistent with the ideology of an ethnic cleanser.41 The caveat that in South Africa, forcing white people off their land would not be accompanied with physical violence as was the case in Zimbabwe, is irrelevant.42 The problem for ethnic cleansers is that forced deportation is usually met with resistance, which leads to violence. Reading about the type of violence that often accompanies ethnic cleansing, it is hard not to be reminded of the horrors that are often evident in farm murders. Take this passage by the American historian Norman Naimark, for example:
In some sense, almost all violence against human beings is gratuitous, but in cases of ethnic cleansing all the explanations in the world cannot account for the sheer horror inflicted on the victims by their persecutors – the chopped off ears and fingers, the brandings, the mutilated genitals, the brains of babies splattered against walls; the gauntlets that victims are forced to run, the sexual assaults. The litany of abuses is unending, and it repeats itself from case to case throughout the century.43
This is not to say that farm murders are a form of ethnic cleansing per se. In South Africa we find people publicly talking about ethnic cleansing, especially with reference to chasing the Boers or the white farmers out, as we have seen in Part 2 of this book. Also, we find that the levels of torture often accompanying ethnic cleansing are especially prevalent in the murder of white farmers. A reasonable person not convinced that this amounts to ethnic cleansing should at least display a degree of patience, empathy or compassion with those who believe that ethnic cleansing is under way. Instead we find that many in the media prefer to ridicule and make fun of those who believe that South Africa is currently being subject to such a process. Ridiculing of people in a minority community who are afraid for their lives is nothing short of a disgusting act that will only serve to polarise the country even more.
The decision by the South African National Assembly that the Constitution has to be reviewed to allow for expropriation without compensation44 brings us one step closer to proving an intent of ethnic cleansing, especially when considering the comments made when motivating why the land belonging to white farmers has to be expropriated. Julius Malema’s statements that all white people are criminals and should be treated as such,45 that he is not calling for the slaughter of white people, ‘at least for now’,46 that trouble is coming for the ‘Afrikaner boys’,47 and that white people ‘must be happy’ that he is not calling for genocide,48 are of particular importance. This, should be seen in the context of President Cyril Ramaphosa and Deputy President David Mabuza urging Malema, one week after the last of these comments, to return ‘home’ to the ANC. ‘We would love to have Malema back in the ANC. He is still ANC down, deep in his heart,’ the President said. 49
Ramaphosa’s comment that Malema’s ‘home’ is in the ANC, regardless of his blatant racism towards Boers and white farmers in particular, can be read within the context of Ramaphosa’s comment regarding how the ANC intends to deal with white people. In his memoirs, political veteran Mario Oriani-Ambrosini wrote what Ramaphosa confided to him in a private conversation in the early 1990s, during the negotiations for a new South African Constitution:
In his brutal honesty, Ramaphosa told me of the ANC’s 25-year strategy to deal with the whites: it would be like boiling a frog alive, which is done by raising the temperature very slowly. Being cold-blooded, the frog does not notice the slow temperature increase, but if the temperature is raised suddenly, the frog will jump out of the water. He meant that the black majority would pass laws transferring wealth, land, and economic power from white to black slowly and incrementally, until the whites lost all they had gained in South Africa, but without taking too much from them at any given time to cause them to rebel or fight.50
AfriForum wrote an open letter to Ramaphosa to explain his statement, but Ramaphosa did not respond, nor denied making such a statement.51
It should also be noted that there is no international treaty that specifies a specific crime of ethnic cleansing.52 Ethnic cleansing in the broad sense of the word can, however, be characterised as a crime against humanity under the statutes of the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY).
Despite the fact that ethnic cleansing should be easier to prove than genocide, the international community has also been extremely hesitant to acknowledge ethnic cleansing where it has been committed.53
CRIME AGAINST HUMANITY
Crimes against humanity are certain acts that are deliberately committed as part of a widespread or systematic attack or an individual attack directed against any civilian or an identifiable part of a civilian population. These include persecution on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law.54
Crimes against humanity can be committed during peace and war55 and any of the following deeds can constitute a crime against humanity if the above-mentioned criteria are met:
Murder
Extermination
Enslavement
Deportation or forcible transfer of population
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
Torture
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under inte
rnational law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court
Enforced disappearance of persons
The crime of apartheid
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health56
The term was developed by international lawyer Hersch Lauterpacht, who later became a judge in the ICJ. Lauterpacht emphasised the protection of individuals, fearing that the crime of genocide with its focus on groups would undermine the protection of individuals and that it would reinforce latent instincts of tribalism enhancing the sense of ‘us’ and ‘them’, pitting groups against each other.57 In its most simple terms, the biggest difference between the crime of genocide and crimes against humanity is that genocide is concerned with the destruction of groups, while crimes against humanity are concerned with atrocities inflicted upon individuals.58
Take farm murders for example. If two thousand farmers were murdered, the question of genocide as opposed to crimes against humanity would boil down to a question as to what the intention of the perpetrators were. If the intention was to destroy the group, then it would be a question of genocide, on the condition that the actus reus (physical) element was complied with, of course. If, however, the perpetrators were to be prosecuted for crimes against humanity, it would not be necessary to prove an intention to destroy the group.59
Crimes against humanity are not isolated or sporadic events, as they have to be part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. In order for farm murders to be declared a crime against humanity, it would therefore be necessary to prove that these attacks are tolerated or condoned by the South African government. For this to be proven, the fact that farm murders are not prioritised in the same way that the poaching of rhinos is prioritised, or that these crimes are not combatted with a unique counter-strategy, would not be sufficient. It would have to be proven that the South African government is actively encouraging the slaughter of white farmers, or at least is in agreement with the fact that white farmers are in fact murdered in disproportionate numbers.