The Role of the Armed Forces in a New South Africa in the Context of International Law*

Prof Kader Asmal, Professor of Human Rights Law,
Community Law Centre, University of the Western Cape

Edited version of a paper presented at a conference on Civil-Military Relations in a Post-Settlement South Africa, hosted by the Institute for Defence Politics in conjunction with the Hanns Seidel Foundation, CSIR conference centre, Pretoria, 23 April 1992.

Published in South African Defence Review Issue No 3, 1992

INTRODUCTION

Lawyers educated and brought up in our tradition generally eschew policy considerations as being irrelevant to the study and application of rules of law. Political scientists, administrators and policy framers often regard law as a source of mystification, either to be ignored or used as a justification, as an ex post facto excuse, for decisions already implemented.

Neither approach will serve the needs and purposes of the new order which the South African body politic is urgently trying to create.

For lawyers, the new constitutional order - with a written constitution as the source of the highest law in our country and with a bill of rights prescribing the fundamental rights of the citizen - will pose challenges where their function of lawyers will be to recognise law as congealed politics, replete with policy options and where controversial judgments will have to be delivered.

Conversely, policy framers will have to recognise that their discretion will be regulated and therefore limited by legal norms - national and international - which will have a direct effect on the way that they order their work. Power relations in our society will be regulated by the constitution; inter-state relations, especially those concerned with the use of military force, will be deeply affected by international law, which will occupy a central role in the philosophy of the new order.

FROM PARIAH-STATUS TO PRINCIPLES

The state of South Africa has been a founder member of the United Nations since 1945. But since 1946, the organised representative of the state - the government - has been virtually under siege in the international community because of the policies of racialism and apartheid. The mobilisation of the international community against apartheid has involved the creation of new rules of law, not least in the area of the international protection of human rights, but also encompassing the law of international organisations, the law of war, notions of state responsibility and international criminal law.

The paradoxical result of the world-wide struggle against apartheid is that the international community has been enriched in the corpus of law to a remarkable extent and these rules now form part of the patrimony of mankind. By elaborating such basic concepts as genocide, slavery, crimes against humanity and self-determination and applying them to the South African situation, the United Nations organs have developed rules which can now apply to other situations where there is gross and systematic violation of human rights.

In a similar vein, the laws regulating recourse to force have been affected by the evolution of the international standards concerning the prohibition of colonialism (and the assimilation of racist regimes denying internal self-determination to colonialism), the extent to which states can use forcible measures to maintain colonialism and the legal status of public bodies representing 'peoples' combating racist or colonial rule and alien occupation. Finally, the recognition that national struggles against "colonial domination, foreign occupation and racist regimes" are international armed conflicts for the purpose of the humanitarian laws of war, and not civil wars, has enormous implications for the laws of war.

These developments may not have been well-received in apartheid South Africa. There may even be doubts as to the extent to which they apply in different contexts. But they are part of our history and will affect the way in which our future is moulded. This is especially true of the concept of equality which, since the adoption of the United Nations Universal Declaration of Human Rights in 1948, has underpinned the protective provisions of human rights conventions by forbidding invidious discrimination under the Racial Discrimination and Women's Conventions of 1965 and 1979 respectively, and by permitting affirmative action to redress structured discrimination.

These developments provide the necessary backdrop to any discussion on the role of international law when we consider our relations with the international community after a legitimate constitutional order has been established in our country. Renewed membership of the United Nations and its organs and specialised bodies, entry into the Organisation of African Unity and the playing of a proper role in other regional and international bodies will entail special leadership responsibilities for South Africa and the implications of these duties and opportunities must be a matter of public debate and discussion.

Our internal legal order will be based on the rule of law. In a similar rein, without discounting the element of national interest as one of the motivating factors for a state's behaviour, a free South Africa must display a deep attachment to international norms of behaviour based on law. In this way, we can repudiate the behaviour of the past and insert the new morality where hegemony, domination and overlordship give way to good neighbourliness, mutual respect and solidarity.

Our constitutional order must also reflect the relation between international law and national law.

THE CONSTITUTION AND INTERNATIONAL LAW

The South African Law Commission, in its recent report on constitutional options, in an otherwise comprehensive survey of options for the constitution, does not touch on the nature of the relation between national law and international law and does not provide any similar statement of policy as found in many modern constitutions. For example, Article 96 of the Constitution of the Republic of Namibia, which has as its heading 'Foreign Relations', provides a statement of the public policy which will guide the state in its international relations.

It is therefore suggested that the constitution of a post-settlement South Africa should have a much more comprehensive chapter on international relations which would emphasise our country's presentation of itself as a responsible member of the international society, supporting the aims and policies of international organisations. The provision should emphasise the 'international law friendly' character of the constitution. It would also assist the courts and support their resort to international law, where appropriate, in solving problems. More importantly, the article may provide a direct remedy to aggrieved citizens to invoke the constitution's provision where the executive has broken the terms of the constitution.

Such a provision would affirm the state's devotion to the ideal of peace and friendly co-operation founded on international peace and morality and, in particular, respect for the rules of international law in its relations with other states.

Secondly, the state, in its international relations, shall be governed by the principles of national independence, respect for human rights, the rights of peoples to self-determination and independence, equality among states, the peaceful settlement of disputes, support for disarmament and the promotion of international peace and co-operations.

Of special importance in the region of Southern Africa would be the stipulation that the state shall strictly observe the principles of non-interference in the internal affairs and good neighbourliness in relation to South Africa's neighbouring and other states.

In order to control the discretion of the executive to use our armed forces outside our borders (as the Defence Act permits at present) and in the light of the sad experience of our neighbours, the constitution should state categorically that, except for the purposes of self-defence as identified by the Charter of the United Nations or in pursuit of any special request by the United Nations or a regional organisation, no military contingent under the direction or control of the state may be deployed outside the state without the authorisation of the South African National Assembly.

The effect of such a provision would be to provide the executive with standing authorisation to commit armed forces for purposes authorised by the constitution in advance. In other contingencies, such as the provision of assistance to a state faced with a rebellion, public policy would dictate that the permission of the National Assembly would be required for such a venture.

Finally, there is the issue as to what the status of the rules of international law would be in our national system. Apart from the respect due to such rules, a provision in the constitution concerning the 'reception' of international law would enable individuals to rely on these rules before our courts, a matter of some importance in disputes involving human rights.

Traditionally, there is a distinction drawn between rules of customary international law and obligations arising out of treaties. International law is not of the same nature as national law, the most important difference being the absence of an international legislature, though resolutions of international organisations have begun to play an important part in the formation of customary rules.

Customary international law derives from the practice of states. State practice may give rise to customary international law when it is uniform, consistent and general, and if it is coupled with a belief that the practice is obligatory, rather than simply a matter of habit. South Africa will be bound by existing rules of customary international laws but the persistent objection of the state to an emerging rule can absolve it from the scope of that rule.

Treaties are agreements between states by which states undertake voluntarily to be bound. They can be bilateral, such as the Nkomati Accord of 1984 between South Africa and Mozambique or multilateral, such as the Charter of the Organisation of African Unity.

A treaty only gives rise to an obligation providing a state expresses its willingness to be bound. As a result, Protocols I and II of 1977 additional to the Geneva Conventions of 1977, cannot bind South Africa until we ratify or accede to them.

However, there is an interplay between these two sources whereby rules of customary international law may develop because of widespread practice arising out of the treaties. This development is best exemplified in the Nicaragua Case in 1986 where the International Court of Justice found that, independently of the Charter, the customary international law concerning the non-use of force and non-intervention had developed in such a manner that the Court could apply it.

Such an approach still bases the acceptance of rules on the 'will' of a state but the foundation of obligations may take into account other bases, such as natural law, community expectations and, as reflected in Article 36 of the Statute of the International Court of Justice, "general principles of law recognised by civilised nations" (sic), which provision allows judicial institutions much leeway to fill gaps in the law.

In any event, we must reject a pure state-based concept of law and recognise the wider community orientation which encompasses the needs of people, individuals and societies.

Our common law determines the 'reception' of international law into the South African legal system. At present, rules of customary international law, as identified by our judges, may be applied providing that they do not conflict with an internal statute or a binding internal rule.

Treaties do not create direct rights or impose obligations, even if duly ratified, unless they have been implemented by national legislation into the internal legal system.

For the sake of clarity and in order that rules of international law will enjoy a higher status, it is proposed that the constitution should include specific provisions relating to international law and its reception. Firstly, in relation to customary international law, the constitution should provide that, unless otherwise provided by the constitution or any Act of Parliament, rules of customary international law shall be binding on the state and shall form an integral part of South African law. Such rules shall directly create rights and duties for the inhabitants of the state and shall take precedence over existing ordinary laws of the state.

In relation to treaties, we must recognise that although the executive will formally ratify treaties, the National Assembly must have a role in providing its advice and consent, certainly in relation to treaties which may change our internal laws. This procedure will, in common with other modern constitutions, be regulated by the constitution. But once this procedure has been followed, such international agreements should become an integral part of the law of South Africa, enabling individuals to rely on them.

It may be possible to entrench human rights treaties in a stronger form as the supreme law of the land, enjoying a similar status as the constitution in order to ensure that the full panoply of human rights standards become part of the higher law of South Africa. In any event, there ought to be duty on the government of the day to present all existing human rights treaties to the National Assembly, together with a statement of its policy towards them.

For the future, every new human rights treaty should be formally placed before parliament so that the government of the day could explain why it is not to be ratified by the state or when such ratification is to occur. In this way, the onus is placed on the government to justify inaction, in a situation where international rules provide a much higher standard than national rules.

INTERNATIONAL LAW AND THE USE OF ARMED FORCE

Historically, states had recourse to war as an instrument of policy and international law was only concerned with the consequences of such an exercise. Some attempt at a moral justification for war by differentiating between objectives - holy wars, for example, - only resulted in increased mystification. The discretion of the state to have recourse to war has not been limited in any way, so that wars of national aggrandizement, for spheres of influence and colonial expansion littered the international landscape.

It is only in this century that international law has attempted to regulate this area. Firstly, recourse to war in the formal sense was abolished in 1928, except in self-defence. But states evaded this proscription by using forcible measures falling short of 'war' in the technical sense. As a result, in the post-1945 arrangements following the adoption of the Charter of the United Nations, international law sought to regulate the 'use of force' by members of the international community in two ways.

First, by stipulating a paramount obligation not to use force to settle disputes. This has only limited exceptions. Secondly, by having at its disposal a procedure whereby the community itself may use force against a wrongdoer. These are known respectively as the rules on the 'unilateral use of force' and the rules of 'collective security'.

The general presumption against the use of force is found in Article 2 of the Charter under which all members of the United Nations are obliged to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. In addition, member states "... shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations".

This provision has been described as the cardinal rule of international law and the cornerstone of peaceful relations among states. Consensus declarations of the United Nations have expanded, exemplified and clarified the meaning and application of this provision. The most important is the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States (GA Res 2625(xxv) of 1970), which the International Court of Justice identified as part of customary international law. The declaration describes a war of aggression as constituting a crime against peace, for which there is responsibility under international law. Propaganda for wars of aggression is forbidden. Conversely, it could be argued that the right to peace requires the positive education of military personnel concerning the illegal use of force and the right to disobey orders which violate basic rules of law.

The declaration imposes a duty to refrain from the threat or use of force to violate existing international boundaries or as a means of solving international disputes including territorial disputes and problems concerning the frontiers of states. In the Organisation of African Unity, in which a post-settlement South Africa will play an important role, frontiers imposed by colonial powers in the nineteenth century have to be accepted by member states, as the African variation of the Latin American uti possidetis rule and a special mechanism of arbitration and conciliation has been set up to deal with adjustment of boundaries where arbitrary lines on the map have divided linguistic and ethnic groups from each other. However, the wars in the Horn Africa and elsewhere illustrate that this process of peaceful adjustment has not been dealt with sensitively or with any commitment.

In addition, the Declaration forbids the use of reprisals involving the use of force. South Africa's forcible interventions in Angola, Mozambique and other Front Line States were either presented as a variation of reprisals or as acts of 'hot pursuit', a concept rightly condemned by the General Assembly and the Security Council as having no warrant either in customary international law or under the Charter.

Of particular significance for South Africa is the prohibition of organising or encouraging the organisation of irregular forces of armed bands, including mercenaries, from incursion into the territory of another state. The International Court of Justice in the Nicaragua Case in 1986 gave special attention to this prohibition when it investigated the facts concerning US assistance to the Contras in Nicaragua and Nicaraguan assistance to the guerrillas in El Salvador.

In a similar view, as part of the duty of non-intervention in the internal affairs of another state, every state is prohibited from organising, instigating, assisting or participating in acts of civil strife and terrorist acts in another state or acquiescing in organised activity within its territory towards the commission of such acts, when the acts referred to involve a threat or use of force. Training irregular forces from another state, providing a manual for assassination (as in the Nicaragua Case) or providing arms to one party in a civil war would be examples of such illicit acts.

Normally, a government is only responsible for its own acts or the acts of its organs. But if a government knowingly or recklessly allows its territory to be used for any prohibited act, it becomes accountable and responsible in international law. A nod is not as good as a wink, here.

The use of force to deprive peoples of their equal rights and their right to self-determination is forbidden and, subsequently, international law identified a right to assist such peoples in their struggle, although it could be argued that such a right stopped at the level of assistance and did not encompass the violation of the territory of the state against which assistance was provided.

Finally, the declaration denies the acquisition of valid title over any territory which has been the object of acquisition through the use or the threat of the use of force.

Alleged difficulties and ambiguities concerning the interpretation of Article 2(4) of the Charter arise from two conflicting interpretations. The first, propounded by some writers, posits an approach which is intent on preserving the discretion formerly enjoyed by powerful states to use force in order to achieve individual objectives. Therefore, these argue that if the action does not threaten the territorial state against which the intervention has taken place, then the action is not illegal. Such action would involve the protection of nationals in a foreign state, humanitarian intervention or 'police action' such as mine-sweeping operations in an international waterway or the freeing of hostages in a foreign country, without the consent of the local sovereign.

The second approach argues for a strict interpretation of Article 2 if international law is to be respected. Should this not be the case, measures of self-help or self-protection will be the sole domain of larger and more powerful states against smaller and less powerful states intervention, which has often been abused for ulterior reasons, for reasons of state and illicit intervention.

SELF-DEFENCE

The Charter provides for the basic right to self-defence if an armed attack occurs against a state. The right to self-defence can be exercised either on an individual or collective basis. The Charter requires an 'armed attack' before the right to self-defence can be utilised. The Charter does not refer to the 'use or threat of force' as in Article 2 or to a 'threat to the peace, breach of the peace or act of aggression' as in Article 39. The authorisation to use force as a reactive measure in self-defence is determined by a condition of fact which is comparatively clear, objective, easy to prove, difficult to misinterpret or fabricate.

Preemptive strikes are forbidden, therefore, and could constitute an act of aggression. Protection of nationals who are attacked while they are abroad, removing 'nests' of terrorism, dealing with minor cross-border raids, do not come within the ambit of self-defence. Article 51 also places responsibility on the party acting in self-defence to inform the Security Council of the United Nations and the Security Council is given authority to act subsequently. The defensive measures taken must be commensurate with and in proportion to the armed attack which gave rise to the exercise of the right to self-defence in the first place.

The object of self-defence is precisely to put an end to the armed attack; it would not be permissible for a state, in the course of its defence, to seize and keep the resources and territory of the attacker.

Collective self-defence is the right of a third state to come to the defence of the attacked state. This right may arise under treaty, as with the North Atlantic Treaty Organisation or, as the World Court laid down in the Nicaragua Case, on a request addressed by that state to the third state. In the absence of either situation, the intervening state would be guilty of impermissible use of force.|

The use of force for the protection of nationals abroad is contrary to the Charter of the United Nations. Forcible self-help by states to protect human rights in another state is so prone to abuse and so deeply associated with national self-interest that unilateral decisions by states to intervene can be considered to be a breach of the Charter. Effective machinery on the international level to govern the remedial use of force in human rights situations, preferably through the Security Council, needs to be established and South Africa could play an important part in developing this line of thinking.

INTERVENTION

Since the Second World War, there have been numerous instances of troops being sent to another state allegedly upon the invitation of its government. A legitimate government may invite the forces of another state on its territory for any lawful purpose under international law, that is, not for genocide, wars of aggression or denial of self-determination. However, intervention by invitation normally occurs in the context of civil war, when two competing governments claim to be the 'legitimate' government. In such circumstances, to allow intervention by invitation serves only to encourage dictational intervention by other states, often occurring under cover of a fabricated invitation. For this reason, the General Assembly of the United Nations adopted the consensus Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States in 1965. Armed intervention in the internal or external affairs of other states and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements are 'condemned'.

Under Article 2 of the Charter, the use or threat of 'force', which is forbidden, is to be interpreted as 'military force'. But under the 1965 Declaration, what is forbidden is much wider. 'No state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind.' Non-interference encompasses forbidding any state from organising, assisting, financing, inciting or tolerating subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interference in civil strife in another state.

COLLECTIVE ARMED RESPONSE

For the first time in international relations, a body of limited composition is given the authority to take collective military action where there is a threat to the peace, breach of the peace or act of aggression. Under Chapter VII of the Charter, the Security Council can impose diplomatic, economic and other sanctions which bind all states when the trigger of Article 39 of Chapter VII has been pulled. The Charter anticipates that before the Council uses military force by land, sea or air, it must determine that the economic or other sanctions are inadequate or have proved to be inadequate.

The original idea was that the Security Council would organise, through the Military Committee, responsive action under its own control, but the outset of the cold war put an end to this collective approach. Instead, a particular member of the United Nations may be asked to act in pursuit of such a decision, as with the British Navy interdicting ships on the high sees illegally supplying oil to the Smith regime in 1966 or the joint coalition self-defence measures taken in January 1991 on behalf of Kuwait under the alleged authority of Security Council Resolution 678.

But such collective action under the control of the Security Council may be more beneficial than 'licensing' individual big powers to act on behalf of the international community and care must be taken about the clear legal authroity for such action. The Iraq war shows the dangers of ambiguous authorization by.the Security Council.

Peace-keeping operations, such as those in Cyprus, Lebanon and, this year, in Yugoslavia are of a different nature. Unlike Chapter VII action which takes place under mandatory provisions, peace-keeping or interdiction forces are placed with the consent of the local sovereign and have to be withdrawn when such consent is withdrawn, as occurred in the Suez Canal area in 1956 when Egypt ordered the United Nations to withdraw the peace-keeping force.

These forces can act only in self-defence and their lack of offensive power is reflected in their very light armaments. Participation in such forces is voluntary on the part of states and all the expenses incurred by states are recouped from United Nations sources where the major powers make voluntary contributions. Such forces are nowadays multi-dimensional; apart from soldiers, they may include police and civilian contingents and involve themselves from running an election to supervising a truce.

Some states provides special training for their permanent force for such peace-keeping operations. Such 'Blue Beret' service is highly prized and consideration should be given for at least a brigade-size force to be trained for such service for deployment in similar situations as described above. However, there must be careful assessment as to the role of such a force in the specific situation from which a request to the Security Council emerges.

AGGRESSION AND INDIVIDUAL LIABILITY

The Nuremberg Tribunal of 1946 was the first modern example of leaders, entities and individuals being charged for war crimes, crimes against the peace and crimes against humanity. The judgment of the Tribunal, which assigned individual responsibility for heinous crimes and which, among other findings, rejected the defence of superior orders, was adopted by the General Assembly and now forms part of customary international law.

It is important to emphasise that individual responsibility for these crimes are attached to those who inspire, incite, organise or carry out acts which give rise to such offences. One important component is crimes against humanity which is constituted by the pursuit of policies of ill-treatment, persecution and killings of civilians. A number of countries have made this crime part of their domestic criminal code and it is proposed that such a course should be followed in South Africa also. There is no period of limitation for such crimes.

War crimes arise from serious breaches of what are today called the Geneva Principles, rules arising out of the four Geneva Conventions, together with the Hague Rules of 1899 and 1907. The principles of discrimination, respect for occupied territory, the recognition that certain methods of warfare are forbidden and the proper treatment of prisoners of war are part of this code. There is an obligation on all state parties to these conventions to provide satisfactory training and education to their armed forces about these rules and to sensitise combatants as to their application. South Africa has ratified the four Geneva Conventions

South Africa has not yet acceded to Protocols I and II of 1977 which supplement the Geneva Conventions. Protocol I concerns international conflicts and brings the law up to date because the vast developments concerning the technology of warfare. It forbids certain indiscriminate methods of warfare and the use of food as a weapon of war. It also expands the definition of prisoners of war by including combatants of movements combating colonialism, alien occupation and racist regimes. Protocol II is concerned with internal conflicts which reach a certain level of intensity and duration. It is very restrictive in its terms and application. However, if a liberal approach is taken by the government concerned, the provisions of Protocol I will do a great deal to humanise the most bitter of all conflicts, civil wars.

The accession to Protocols I and II by a post-settlement South Africa is a major priority.

There are international treaties which regulate if not forbid the use of biological and chemical weapons. There are no treaties concerning the use of nuclear weapons. But it is arguable - persuasively - that the use of biological, chemical and nuclear weapons will be in breach of certain basic rules of international law, particularly the rules of humanitarian international law as these weapons do not discriminate between civilians and combatants. They are indiscriminate and their use lacks proportionality. It is arguable, also, that their very possession is an act preparatory to the commission of an offence, which was a successful charge at Nuremberg.

The use of these weapons could also constitute the crime of genocide, proscribed under the Convention for the Suppression and Punishment of the Crime of Genocide. Although customary international law also forbids genocide and like the Convention imposes individual responsibility, South Africa must accede to the Convention as a declaration of our new intent.

South Africa must provide the proper leadership by denying the ownership of these weapons, by denying itself a capability for the use of such weapons and by taking the initiative to ensure that the continent of Africa is declared a nuclear-free zone.

The Military Disciplinary Code, adopted under the Defence Act of 1957 will need to be revised to take into account our international human rights obligations and must provide a clear statement about the responsibilities of an ordinary combatant faced by orders which are manifestly illegal.

It is a rule of international law that a succeeding government is bound by the acts of its predecessors. A post-settlement government - if it is to insert a higher standard of morality in our relations with our neighbours - must recognise the enormity of the crimes committed by its predecessor in the Font Line States and especially in Angola and Mozambique. Breaches of international obligations impose a duty to pay reparations, which may take various forms, not the least of which is an apology which acknowledges and may expiate. A state is also liable for illicit acts carried out on its territory which violate the rights of other states. The arms trade would therefore require stricter scrutiny.

PEACEFUL SETTLEMENT OF DISPUTES

The Charter of the United Nations imposes a basic obligation on states to settle all their disputes peacefully. Chapter VI of the Charter provides for the procedures which may be followed by a state. The Security Council has important powers of recommendation for the settlement of a dispute. In addition, conciliation, arbitration, investigation, good offices and regional arrangements may be used.

Of immediate importance to us is the utilisation of the International Court of Justice. This highest court of law in the world has no compulsory or automatic jurisdiction in inter-state disputes. States may have recourse to the Court in a number of ways. But the most important method is by making a declaration under Article 36 (6) of the Statute of the International Court of Justice. Such a declaration confers jurisdiction on the Court in relation to a state which has also made a declaration conferring compulsory jurisdiction on the Court.

Most international disputes are not settled by the Court, but by the parties themselves. However, there is an increasing tendency, especially in Africa, to have recourse to the Court because of its pre-eminent position as a permanent international tribunal and the wide impact of its decisions on clarifying and developing international law.

The early making of such a declaration by South Africa would signify our firm rejection of power politics and an even stronger commitment to the peaceful and judicial settlement of disputes.

CITIZENS AND HUMAN RIGHTS

Service personnel - as combatants, on reserve or inactive service - do not lose their rights and cannot ignore their duties. They will no longer operate on the awful twin assumptions of combating the 'total onslaught' or through demonising their opponents. They will be citizens in uniform with a higher calling.

The policies under which they operate will be underpinned by the new constitution and will be openly debated and democratically decided. Human rights must not be sacrificed to political expediency. They provide a shield for servicemen and women. They regulate the sword which combatants rely on.

South Africa will soon ratify over forty major human rights conventions and will become a party to the African Charter on Human and People's Rights. An affiliation to these important codes, especially to the International Bill of Rights reflected in the two Covenants in 1966, will have a serious impact on our domestic law and the rights and responsibilities of citizens. This benign and acceptable form of external intervention will ensure a self-induced supervision of our rights, enriching our patrimony and in sensitising the post-settlement government to new minimum standards of behaviour.

This is not a New World Order where language obscures the play of power and which codifies new forms of imperial might. It is the order of rights based on law which will allow us to play an open, creative and progressive role in diplomacy, politics and trade in Africa and in the world.

We must eschew a regional and continental role based on hegemony and control. We must recognise the limits to our power. Instead, based on the assumptions discussed here, we can forge a co-operative relationship with other states where legitimate self-interest and altruism, non-discrimination and equality, are the guiding factors providing the impetus for a non-racial and democratic South Africa as it emerges into its rightful place in the international community.