The xenophobic environment prevailing in South Africa is nothing new. The history of the country is replete with instances of violence against Persons of Concern (Poc) including non-nationals, immigrants, refugees, asylum seekers, and internally displaced persons. Both state authorities and non-state actors have used  brutal practices to harm and cause physical distress to these groups. Two pertinent questions arise. Firstly, has the South African government fulfilled its duties under international law? Secondly, if not, does its failure to prevent numerous xenophobic occurrences attract state responsibility under International Law?

This article tries to provide an answer to this, in light of the Johannesburg Riots that were the most recent xenophobic incident against non-nationals. 

WIDESPREAD XENOPHOBIA IN SA 

The UNHCR defines xenophobia as “attitudes, prejudices and behaviour that reject, exclude and often vilify persons based on the perception that they are outsiders or foreigners to the community, society or national identity”. It can be interchangeably used with other terms including ethnocentrism, xeno-racism, autochthony, and nativism. The history of xenophobic violence in South Africa can be traced back to the pre-1994 period, when the government resisted the assimilation of foreigners by enacting the Aliens Control Act 1991. The same trend of gross violence and discriminatory behaviour continued after the country attained democracy in 1994. There was an increase in instances where both the authorities and the public took measures to expel foreigners who came to South Africa to make a living for themselves and their families. 

There have been innumerable instances where individuals have made discriminatory, stereotyping, and dehumanizing remarks, resorted to assault and harassment as well as physical violence in the form of murder, looting, vandalism, robbery and arson. All these have been initiated to ensure that certain groups are expelled from the country. 

JOHANNESBURG RIOTS AND RESPONSIBILITY OF SOUTH AFRICA UNDER INTERNATIONAL LAW

The South African government’s callousness in failing to suppress the anti-foreigner sentiment has caused a surge in indiscriminate use of violence by the public There are also several instances where the government has been alleged to have caused riots in the past, resulting in the suffering and death of immigrants, refugees, and asylum seekers. The most recent spate of xenophobic violence was manifested in the Johannesburg riots, which took place in late August of 2019. The riots commenced when the locals started looting and plundering shops owned by foreigners. They ultimately took a violent turn, resulting in the death of five people. Many have raised questions on the police force’s inability to avert the incident. There have even been allegations that the riots erupted due to lack of ineffective policing to protect foreigners and non-nationals. 

International human rights instruments including the Universal Declaration of Human Rights (UDHR), article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) confer a responsibility on the signatories to ensure that the rights enshrined in the convention can be exercised without discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Even regional instruments such as the African Charter on Human and People’s Rights provide for uniform application and enjoyment of rights. The language of the Charter suggests that a state party cannot limit the application of its provisions to nationals alone. The term “every individual” includes immigrants and refugees. Committing violent acts against foreigners qualifies as a crime not only under human rights law but also under article 7(1) of the Rome Statute of which South Africa is a signatory, as a crime against humanity. The Johannesburg riots were an apt example of the South African government’s failure to abide by any of the aforementioned conventions. The sporadic violence was mounting from late August, when locals started targeting the businesses of African foreign nationals in the surrounding areas of Johannesburg, Pretoria, and Durban, and finally peaked in September. The authorities were lackadaisical in their approach in tackling this xenophobic wave, which ought to have been suppressed from the very start.  

The International Convention for the Elimination of Racial Discrimination (ICERD) is another important framework which runs complementary to the abovementioned human rights instruments. It  primarily aims at addressing xenophobic discrimination and prejudices. The state parties under article 2(1) of the convention are bound to  “condemn any form of racial discrimination undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races”. 

  The General Recommendation No.30 of the ICERD Committee on ‘Discrimination against non-Citizens’ provides further protection to the foreigners against racial violence and hate speech committed by the perpetrators, thus prohibiting differential treatment. The Durban Declaration and Programme of Action (2001) aims to work along similar lines, as it considers the primary responsibility of a state to combat racism, racial discrimination, xenophobia, and related intolerance. Despite being a part of all these instruments, the South African authorities have failed to take adequate measures to  supress and subdue the anti-foreigner sentiment prevailing in the country. Even the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) enacted prior to the September riots failed utterly to tackle them. This is evident from a Human Rights Watch Report, which highlighted that some of the large scale instances of xenophobia and racial discrimination including the Johannesburg riots happened after NAP came into action. 

Under article 2(a) of the Draft Articles on State Responsibility, a state can be held liable if an action is attributable to it. Thus, the ‘act of state doctrine’ requires an act to be attributable to an “act of the state”. Otherwise, it cannot be held responsible under draft article and consequently International law. Another pre-requisite to invoke state responsibility is the performance of such an act by an organ or agency of the state. This, in no way implies that a state cannot be held liable if a wrongful act is performed by a private person. The “due diligence doctrine” which was formulated in The Home Missionary Society Claim Case and Pulp Mills on the River Uruguay Case provides that a state can be held responsible for wrongful acts of private persons. This is when it has not been able to exercise due diligence with regards to the conduct of private individuals. It is a duty of a state to ensure that acts of private individuals do not contravene its obligations under International law. Thus, a private act may become “an act of the state” upon failure of that state to exercise due diligence which it ought to have reasonably anticipated and observed. This clearly means  that violent acts of murder, vandalism, and looting caused by private individuals in the Johannesburg riots in September would attract state liability of the South African government. The government can and needs to be held accountable for the spate of violent behaviour of the local residents. This could be in the form of sanctioning public officials and politicians who have been involved in inciting anti-foreigner rhetoric in the country, thus leading to numerous instances of xenophobic violence in the country, including the Johannesburg riots. 

INSTITUTIONALISED XENOPHOBIA

The Johannesburg riots of September 2019 are testament to the fact that ill-treatment of foreigners in South Africa is institutionalised and deep-rooted. The primary reasons cited by people for this attitude towards outsiders include paucity of job opportunities, increasing crime rates, and lack of resources. The role of the authorities is often overlooked in this scenario. The government of South Africa has been unable to fulfil its duties under any of the international instruments that it is signatory to. This alone can attract state responsibility under International law. It is high time the government takes cognizance of the deteriorating condition in the country and fulfils its obligations enshrined under different International instruments, which mandate the states to treat foreigners with equality. 

Bitthal is a fourth year B.A. LL.B. student at Rajiv Gandhi National University of Law. His areas of interest are Human Rights Law, Technology Law and International Law. He's extremely keen on exploring various cultures and traditions around the world.

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