Legal Victory for Racism

"Now all we can do is wait with trepidation and pride until Africans break the bonds of tyranny," Allard Lowenstein commented last week in reaction to the disappointing decision handed down by the International Court of the Hague over apartheid in Southwest Africa.

The court voted eight to seven to dismiss the case brought by Ethiopia and Liberia against South Africa, on the technical grounds that neither of the plaintiffs had "any legal right or interest" in the matter.

The effectiveness of international justice has been dealt a crippling blow by this decision, and it will take years of rebuilding before the label of White Justice can be disproved. For while the United States and Soviet representatives dissented, all the other white judges voted in a bloc against the Africans to throw the case out of court.

The important question now seems to be not who voted how, but what next? The large African contingent in the U.N. has already sworn to bar re-election for any of the judges who voted against Ethiopia and Liberia. Violence is hinted at everywhere. Those who used to urge economic sanctions and legal proceedings have been silenced and feel as if they have betrayed the cause of racial justice in South Africa by delaying the inevitable conflict. There is a feeling among Western liberals that they have been defeated by their own democratic institutions; that international organs have not stood up under the stress of a potential international crisis.

How did this come about, who betrayed whom? The answer seems to lie between accident and legalism. To begin with, the recent decision completely contradicted a 1962 vote (by the same court) in which it decided, also eight to seven, that it did have jurisdiction in the case. After six years, 16 volumes of testimony, 6000 pages of oral argument, and 112 sessions, the court changed its mind on an issue which should have been resolved at the outset.

Although the issue remained the same from 1962 until 1966, the lineup of judges changed substantially: three of those who had participated in the first decision were absent for the second. As Anthony Lewis of the New York Times pointed out, the technical grounds for dismissing the case merely covered up a reluctance to pass judgement on such an inflammatory issue.

After the 1962 decision, which was passed over the dissenting vote of Sir Percy Spender, he was quoted as having said "hard cases make bad decisions," implying that the case was political and not legal in nature. Sir Percy's deciding vote last week might have been cast to avoid a legal judgement of a political issue--this would be a generous interpretation.

But the evidence points in a less favorable direction. Sir Percy should have accepted the court's original ruling that it did have jurisdiction, and gone on to examine the content of Ethiopia's and Liberia's complaints. Instead his decision to throw the case out of court must be interpreted as a political move to avoid a condemnation of apartheid. The final decision attained what Lewis called "a level of sophistication even the U.S. Supreme Court has failed to reach." Ethiopia and Liberia had legal standing enough to merit a ruling.

The effects of this unfortunate decision are myriad: Prime Minister Henrik F. Verwoerd, a symbol of white racism, has enjoyed perhaps the most dramatic international victory in legal history. Never before in modern times has the practice of avowed racist policies met with world opinion and triumphed; Verwoerd has brought a brief ray of hope into the foundering creed of segregrationists the world over.