‘The best defense is to attack’: African Agency in the South West Africa Case at the International Court of Justice, 1960–1966

Abstract

This article focuses on two examples of the agency of African people in the South West Africa Case, in which Ethiopia and Liberia brought South Africa before the International Court of Justice in the Hague in 1960. ‘African’ here refers both to diasporic and continental Pan-African organisations, and to individual citizens (of all races) in African countries. The paper seeks, first, to bring Pan-African political history together with the international legal history of the Case. Second, it supplements the analysis of legal manoeuvres at the international level with a fuller backstory about the strategies of South Africa's legal team in the Case, based on correspondence between Prof. Andrew Murray of the University of Cape Town and the South African lawyers defending South Africa's conduct in then-South West Africa. Overall, the article seeks to assign a more prominent role to Africans in a story about the spread of apartheid through southern Africa – a story which ironically often focuses more on the United Nations, Europeans and Americans than it does on South Africans and Namibians.

Keywords:

• Namibia
• International Court of Justice
• Pan-Africanism
• Andrew Howson Murray

Acknowledgements

This article was first presented at the Biennial Conference of the South African Historical Society, Gaborone, Botswana, 28 June 2013. My thanks to readers for their comments.

Notes

1. R.M. Irwin, ‘Wind of Change? White Redoubt and the Postcolonial Moment, 1960–1963’, Diplomatic History, 33, 5 (2009); ‘Apartheid on Trial: South West Africa and the International Court of Justice, 1960–66’, The International History Review, 32, 4 (2010); Gordian Knot: Apartheid and the Unmaking of the Liberal World Order (New York: Oxford University Press, 2012).

2. Irwin, ‘Apartheid on Trial’, 624.

3. The term Africans here refers to people born on the African continent of all races. I also use the designation of South West Africa to refer to the territory in question as its name had not yet been changed to Namibia in the period under review here.

4. I. Sagay, The Legal Aspects of the Namibian Dispute (Ife: University of Nigeria Press, 1975), xix.

5. E. Gross, ‘The South West Africa Case: What Happened?’, Foreign Affairs, 45, 1 (1966), 41.

6. The reasoning goes that because it was an international organisation, not a sovereign state, the UN itself could not file a case at the ICJ: S. Slonim, South West Africa and the United Nations: An International Mandate in Dispute (Baltimore: Johns Hopkins University Press, 1973), 185 n1.

7. R. Hill, ed., The Marcus Garvey and Universal Negro Improvement Association Papers: Africa for the Africans (Los Angeles: UCLA Press, 2006), vol. X, 498; vol. VII, 240–260.

8. G. Pirio, ‘The Role of Garveyism in the Making of Namibian Nationalism’, in B. Wood, ed., Namibia 1884–1984: Readings on Namibia's History and Society (London: Namibia Support Committee, 1988). Sam Nujoma, first president of independent Namibia, was a confirmed Garveyite.

9. This, despite the fact that Du Bois had left the leadership cadre of the NAACP in 1934. Eric Porter, The Problem of the Future World: W.E.B. Du Bois and the Race Concept at Mid-century (Chapel Hill: Duke University Press, 2010), 117–118.

10. L. James, George Padmore and Decolonization from Below: Pan-Africanism, the Cold War and the End of Empire (Basingstoke: Palgrave Macmillan, 2015), 92.

11. C. Anderson, ‘International Conscience, the Cold War, and Apartheid: The NAACP's Alliance with the Reverend Michael Scott for South West Africa's Liberation, 1946–1951’, Journal of World History, 19, 3 (2008).

12. F. Troup, In Face of Fear: Michael Scott's Challenge to South Africa (London: Faber & Faber, 1950); M. Benson, ‘Notes on Research and Personal Experiences Relating to Namibia, the United Nations and Britain's Role’, in Wood, Namibia 1884–1984; A. Yates and L. Chester, Troublemaker: Michael Scott and His Lonely Struggle Against Injustice (London: Aurum Press, 2006); A.K. Lowenstein, Brutal Mandate: A Journey to South West Africa (New York: Macmillan, 1962).

13. M. Scott, A Time To Speak (New York: Doubleday, 1958), 321.

14. Irwin, Gordian Knot, 48.

15. R. First, South West Africa (Baltimore: Penguin Books, 1963), 193–195. Tshekedi Khama of then-Bechuanaland, who himself had before tried to lobby the UN against South Africa's conduct, assisted in smuggling the young Namibians over the border: Benson, ‘Notes on Research’, 281.

16. R. Clark, ‘The International League for Human Rights and South West Africa 1947–1957: The Human Rights NGO as Catalyst in the International Legal Process’, Human Rights Quarterly, 3, 4 (1981). The international networks which supported them also eventually became crucial in forming armed resistance movements to South Africa from inside South West Africa in the early 1960s, of which the South West Africa People's Organization (SOUTH WEST AFRICAPO) gradually emerged as the leading representative of the Namibian people.

17. B. Bunting, Moses Kotane, South African Revolutionary: A Political Biography (London: Inkululeko, 1975).

18. ‘Final Communique of the Asian-African Conference of Bandung (24 April 1955)’, http://franke.uchicago.edu/Final_Communique_Bandung_1955.pdf, accessed 11 April 2013.

19. Secretariat of the Committee, Asian African Legal Consultative Committee, South West Africa Cases: Report of the Committee and Background Materials (New Delhi, n.d. but probably 1968).

20. M. Hidayatullah, The South-West Africa Case (Bombay: Asia Publishing House, 1967).

21. B.H. Selassie, The Crown and The Pen: The Memoirs of a Lawyer Turned Rebel (Trenton, NJ: The Red Sea Press, 2007), 145; C. Johnson, ‘All African People's Conferences’, International Organization, 16, 2 (1962), 429.

22. Selassie, The Crown and The Pen, 178.

23. E.S. McDuffie, ‘Chicago, Garveyism, and the History of the Diasporic Midwest’, African and Black Diaspora: An International Journal, 8, 2 (2015); T.E. M’Bayo, ‘W.E.B. Du Bois, Marcus Garvey, and Pan-Africanism in Liberia, 1919–1924’, The Historian, 66, 1 (2004); Selassie, The Crown and The Pen, 181–194.

24. Y. Richards, Conversations with Maida Springer: A Personal History of Labor, Race and International Relations (Pittsburgh: University of Pittsburgh Press, 2004), 207.

25. Quoted in P. van den Berghe, South Africa: A Study in Conflict (Berkeley: University of California Press, 1967), 310.

26. C. Sanger, ‘Towards Unity in Africa’, Foreign Affairs, 42, 2 (January 1964), 279.

27. Benson, ‘Notes on Research’, 285.

28. Gross, ‘The South West Africa Case’, 39.

29. S. Griswold [Sheldon Weeks], ‘Africa's South West Hell’, The Progressive, March 1961, 33.

30. Ibid., 40.

31. The South West African observers were Jariretundu Kozonguizi and Mburumba Kerina; the South Africans were Tennyson Makiwane, Nana Mahomo, Vusi Make, Peter Molotsi, Y.M. Dadoo and Oliver Tambo: Second Conference of Independent African States [record of proceedings] (Addis Ababa? n.d. 1961?), 113.

32. Van den Berghe, South Africa, Appendix C.

33. Van den Berghe, South Africa, 313; C. Johnson, ‘Conferences of Independent African States’, International Organization, 16, 2 (1962), 428–429.

34. G. Houser, ‘Draft Report on the Third All African People's Conference Held in Cairo from March 25 to 30, 1961’, 2: http://kora.matrix.msu.edu/files/50/304/32-130-FBD-84-GMH%20ACOA%20AAPC%20opt.pdf, accessed 12 April 2013.

35. C.O.C. Amate, Inside the OAU: Pan-Africanism in Practice (London: Macmillan, 1986), 46–48.

36. ‘Speech of Mr. J Rudolph Grimes, Secretary of State, Liberia and Head of the Liberian Delegation’, Second Conference of Independent African States, 32; M. Akpan, African Goals and Diplomatic Strategies in the United Nations (North Quincy, MA: The Christopher Publishing House, 1976), 29; J. Dugard, ed., The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy between South Africa and the United Nations (Berkeley: University of California Press, 1973), 214.

37. Irwin, ‘Apartheid on Trial’, 624. This was most probably coordinated through the Organisation of African Unity, formed in 1963 at the third CIAS meeting in Addis Ababa. Iain MacGibbon noted that the costs of the trial had been estimated at ‘hundreds of thousands of pounds’: I. MacGibbon, ‘Postscript: The International Court Decides?’, in R. Segal and R. First, eds, South West Africa: Travesty of Trust (London: Andre Deutsch, 1967), 330.

38. Slonim, South West Africa, 183. The case is sometimes known as ‘the South West Africa Cases’ because Ethiopia filed first, followed by Liberia. The two filings were, however, identical and were combined into one by the Court. On the ICJ and the Case, see Indian Society of International Law, The Question of South-West Africa (Documents and Comments) (New Delhi, 1966); T.O. Elias and R. Akinjide, Africa and the Development of International Law (Dordrecht: Martinus Nijhoff, 1988); E. McWhinney, ‘The New Thinking on the United Nations and Contemporary International Law’, in E. McWhinney et al., eds, From Coexistence to Cooperation: International Law and Organization In the Post-Cold War Era (Dordrecht: Martinus Nijhoff, 1991); M. Ndulo, ‘The International Court of Justice’, in A. Adebajo, ed., From Global Apartheid to Global Village: Africa and the United Nations (Durban: University of KwaZulu/Natal Press, 2009).

39. South African Department of Information (SADI), Ethiopia and Liberia Versus South Africa (Pretoria: n.d. 1967?), 1.

40. Elias and Akinjide, ‘Africa and the Development of International Law’, 42.

41. There were 10 men on the Ethiopian/Liberian team; one lawyer from each of those two countries, a group of American lawyers and Rubin. SADI, Ethiopia and Liberia Versus South Africa, 300. Several intriguing peripheral aspects of the Case connect the University of Cape Town with this story. UCT graduate Neville Rubin and UCT's Professor Murray (who were contemporaries on campus in the early 1960s and would have sparred on questions such as the imposition of apartheid on South African universities) advised the opposing legal teams. In 1968, the university conferred an honorary doctor of laws degree on the Honorable Justice Mr J.T. van Wyk, South Africa's ad hoc judge on the ICJ bench, and in 1977 on D.P. de Villiers, South Africa's main counsel in the case: J.T. van Wyk, ‘The United Nations, South West Africa and the Law’ (Rondebosch: Public Relations Department, University of Cape Town, 1968); E. Munger, ‘Preface’, in D.P. de Villiers, ‘The Rule of Law and Public Safety in South Africa’, Munger Africana Library Notes 50 (Pasadena: California Institute of Technology, 1979), 4.

42. Two minor exceptions to this ‘Treason Trial rule’ are Murray's inclusion in a few footnotes, in Van den Berghe, South Africa, and T. Dunbar Moodie, The Rise of Afrikanerdom: Power, Apartheid and the Afrikaner Civil Religion (Berkeley: University of California Press, 1975). Re Murray and the Treason Trial, see 'South Africa: The Treason Trial’, The Round Table: Journal of Commonwealth and International Affairs, 47, 186 (1957); A. Sampson, The Treason Cage: The Opposition on Trial in South Africa (London: Heinemann, 1958); L. Forman and E.S. Sachs, The Treason Trial (New York: Monthly Review Press, 1958); O. Tambo, ‘The Treason Trial Ends’, Africa Today, 8, 6 (March 1961); H. Joseph, If This Be Treason (London: Andre Deutsch, 1963); T. Karis, The Treason Trial in South Africa: A Guide to the Microfilm Record of the Trial (Palo Alto: Stanford University, 1965); S. Clingman, ‘Writing the South African Treason Trial’, Current Writing: Text and Reception in South Africa, 22, 2 (2010); R. Bernstein, Memory Against Forgetting: Memoirs from a Life in South African Politics, 1938–1964 (London: Viking, 2000); N. Mandela, Long Walk To Freedom (Johannesburg: Macdonald Purnell, 1994); I. Meer, A Fortunate Man (Cape Town: Zebra Press, 2002); D. Pinnock, Writing Left: The Radical Journalism of Ruth First (Pretoria: University of South Africa Press, 2007). See also University of the Witwatersrand Historical Papers Treason Trial transcript, file AD 1812, A.H. Murray, testimony during the Treason Trial Preparatory Examination, 1956, p. 4548.

43. He was a grandson of Rev. Andrew Murray Jnr (1828–1917), a prolific author (credited with more than 240 published works) and a ‘fundamentalist innovator’ in the Dutch Reformed Church in South Africa: see L. Choy, Andrew Murray: The Authorized Biography (Fort Washington, PA: CLC, 2000).

44. A.H. Murray, The Political Philosophy of J.A. de Mist, Commissioner-General at the Cape, 1803–1805: A Study in Political Pluralism (Cape Town: HAUM, 1958).

45. T. Barnes, ‘The Curious Case of Prof. A.H. Murray in South African Political Trials, 1956–76’, paper presented to the ‘Rivonia Trial 50 Years On’ conference, University of Pretoria, 18–20 June 2013; M. Lobban, White Man's Justice: South African Political Trials in the Black Consciousness Era (New York: Oxford University Press, 1996).

46. Correspondence regarding these activities and many more are to be found in Murray's professional papers now housed in the collection of the University of Cape Town Library: University of Cape Town, South Africa, Manuscripts and Archives Collection, Andrew Howson Murray Papers, File 1253 (hereafter UCT/AHM). My thanks to Dr Koni Benson for her help with these documents.

47. Irwin, Gordian Knot, 111; SADI, Ethiopia and Liberia Versus South Africa, 6–7. De Villiers’ experience in the South West Africa Case was credited with shifting his political position in the verligte direction: Southern Africa Committee, Southern Africa: A Monthly Survey of News and Opinion, 4, 1 [1971?], 15, http://kora.matrix.msu.edu/files/50/304/32-130-A07-84-al.sff.document.nusa197101.pdf, accessed 3 February 2014; Munger, ‘Preface’, 3.

48. The two sides were each represented by both ‘agents’ and ‘counsel’ in the ICJ case. The former represented their nations and were authorised to act and speak on their behalf and interview witness; the latter did the same but ‘could not formally bind their governments’. South Africa's legal team of 12 men were all nationals. However, 4 of the 14 witnesses called by South Africa during the oral proceedings were Americans: 3 academics and one US Army general: SADI, Ethiopia and Liberia, 301–306.

49. UCT/AHM, A.H. Murray to R. McGregor, 25 February 1961. The Murray/McGregor correspondence is originally in Afrikaans: these translations by the author.

50. UCT/AHM, R. McGregor to AHM 4 March 1961.

51. UCT/AHM, A.H. Murray to R McGregor 18 May 1961.

52. ‘Treason Trial Re-opens This Week’, New Age, 31 July 1958, http://www.disa.ukzn.ac.za/webpages/DC/nav4n4158/nav4n4158.pdf, accessed 15 April 2013; ‘In Memoriam, Joseph (Innocent) M. Bochenski’, The Review of Metaphysics, 49, 1 (1995), 217; E. Menzler-Trott, Logic's Lost Genius: The life of Gerhard Gentzen (Providence: American Mathematical Society, 2007), 229; B.J. Shanley, ed., One Hundred Years of Philosophy Vol. 36 (Washington DC: Catholic University of America Press, 2001), 193.

53. Interview with Arthur Chaskalson and George Bizos by the author, Johannesburg, 20 July 2010.

54. Murray sent McGregor a bill of £128 for his work on the reports in 1962; that is the equivalent of approximately $2500 today.

55. Irwin, Gordian Knot, 106–107.

56. UCT/AHM, R. McGregor to A.H. Murray, 2 June 1961.

57. Pluralism, a consistent theme in Murray's academic work, is the contribution for which, if anything, he is remembered in philosophical circles: Murray, The Political Philosophy of J.A. de Mist. See also W. Sweet, ‘Philosophers under Apartheid’, in J. Lavery, L. Groarke and W. Sweet, eds, Ideas Under Fire: Historical Studies of Philosophy and Science in Adversity (Lanham, MD: Farleigh Dickinson University Press, 2013).

58. J. Pham, ‘Ghost Hunting in Colonial Burma: Nostalgia, Paternalism and the Thoughts of J.S. Furnivall’, South East Asia Research, 12, 2 (2004), 256; ‘J.S. Furnivall and Fabianism: Reinterpreting the “Plural Society” in Burma’, Modern Asian Studies, 39, 2 (2005).

59. Pham, ‘Ghost Hunting’, 245. The term ‘social engineers’ in this context is taken from N. Englehart, ‘Liberal Leviathan or Imperial Outpost? J.S. Furnivall on Colonial Rule in Burma’, Modern Asian Studies, 45, 4 (2011), 789; Pham, ‘Furnivall and Fabianism’, 338.

60. UCT/AHM, A.H. Murray, carbon copy of ‘Apartheid’ with hand-written title ‘Report II’, n.d., 30pp.

61. UCT/AHM, R. McGregor to A.H. Murray, 6 July 1962.

62. ‘Counter-Memorial filed by the Government of the Republic of South Africa’, Book IV, Chapter VII, (International Court of Justice, 1966), 507–508: The full texts of the oral and written proceedings of the case at the ICJ can be found online at this URL: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f2&case=46, accessed 20 September 2016.

63. South Africa, ‘Counter-Memorial’, 472.

64. Ibid., 472–473.

65. Ibid., 473.

66. The full complement of judges was 15, but each side of the Case then added an ad hoc judge. Due subsequently to a recusal, a replacement and a death, 14 rather than 17 judges constituted the Court in 1966: MacGibbon, ‘Postscript’, 337.

67. D.E. Dunn, The Foreign Policy of Liberia During the Tubman Era 1944–1971 (London: Hutchinson Benham, 1979), 181.

68. MacGibbon, ‘Postscript’, 331.

69. C. Saunders, ‘The Role of the United Nations in the Independence of Namibia’, History Compass, 5, 3 (2007).