Our Blood-Soaked Land: International Law And The Wits Police Killing
O my child cry for the world
The streets are awash with blood
The few get richer
And the many die quicker
The streets are awash with blood
I wrote these words in a poem published in my freshman year of law school. Today, I am once again in anguish at yet another senseless loss of life.
UNABATED POLICE BRUTALITY
A 35-year-old man was shot dead by police during a protest by students at Wits University in Johannesburg on the morning of 10 March 2021. The shooting occurred in the midst of ongoing protests around the campus as students raised grievances about “exorbitant” registration fees, delays in funding for 2021, first-year students not receiving funding status, and accommodation difficulties.
In a statement, Wits University has extended its condolences to the family of the deceased, stating that it condemns “any form of violence and [calls] on all persons to keep calm during this very difficult time”. The Independent Police Investigative Directorate (IPID) was notified of the shooting incident in Braamfontein and has dispatched an investigation team to the crime scene, according to an IPID statement.
THE INTERNATIONAL LEGAL PERSPECTIVE
The laws and standards surrounding use of force by police are perhaps some of the clearest and coherent in the international legal framework, that is to say there is little excuse for violations of these laws. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF) is one of these international instruments.
Under the BPUFF, police officers should only ever use lethal force as a last resort. This means when such force is strictly necessary to protect themselves or others from the imminent threat of death or serious injury, and only when other options for de-escalation are insufficient.
The United Nations Office on Drugs and Crime Handbook on police accountability, oversight, and integrity provides that the public does not constitute one entity sharing the same needs, let alone the same perspective on the role and functions of the police.
In most countries, the public is a conglomerate of ethnic and religious groups, and within these groups there are specific subgroups such as women, the elderly, and children who may have specific concerns.
Also, groups representing different socio-economic strata tend to have different opinions about police priorities. In countries suffering from high levels of violent crime, certain groups, in particular the poor and people of colour, may find themselves marginalised and criminalised, and in fact left “unpoliced”.
This is evidently true as it pertains to Black South Africans. Policy brutality in the fabled rainbow nation has a lasered focus on poor, Black communities, with wealthy areas and demographics largely shielded from such violence, a tragic pattern exacerbated by COVID-19.
“POST-APARTHEID” ARE WE?”
Not a soul in South Africa could possibly be shocked to learn that the Wits student protests consisted of largely Black students.
The questions must be asked, is this persecution of Black South Africans by their own police force a violation of international law?
The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the legal instrument that reflects most comprehensive consensus on the matter of crimes against humanity.
ARTICLE 7 OF THE ROME STATUTE PROVIDES:
For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
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 sterilization, 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 recognized as impermissible under international 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 health.
For the purpose of paragraph 1:
‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.
The argument that police brutality in South Africa could amount to an international crime may, in the most conservative legal sense, be perceived as audacious. It is therefore worthwhile to breakdown the concept of “crimes against humanity”
The first element of the crime is the physical element, examples of which are listed in article 7(1) of the Rome Statute above. In applying this element to police brutality, it is not so far-fetched that police killings could fall into a number of the categories listed, including murder and persecution.
The second contextual element refers to “when committed as part of a widespread or systematic attack directed against any civilian population”.
The final element pertains to the phrase in article seven – “with knowledge of the attack”. This is known as the mental element. It refers mainly to systemic or methodical attacks. In this context, it is important to note that the plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances.
In applying the final two elements, it is more than evident that police violence and killing disproportionately affect poor Black South Africans above any other demographic. The racial and classist nature of police violence in South Africa is a damning indicator of its targeted nature against a specific population.
A STARK REMINDER OF THE TERROR FELT BY BLACK COMMUNITIES
2020 was seen as a seminal year in the discourse surrounding police violence. The murders of George Floyd, Collins Khosa, Breonna Taylor, and others brought international attention to the terror faced by Black people at the hands of police. In 2021, it is clear this terror has continued unabated. The Wits student protests this week are a stark reminder of this. The killing of another Black man at the hands of police is a stark reminder of this.
In answering the question is police brutality in South Africa an international crime? The legal answer is that there is evidently a strong argument to be made in this regard.
The human answer is that we have witnessed yet another atrocity in our blood-soaked country. The blood of a Black man has once against marked our streets. We need accountability and change.
International law is a powerful tool that can be invoked when local institutions fail us. I urge the South African Police Service to consider these ramifications, and what unabated and reckless violence means for any hope or possibility of a peaceful, equitable future. I urge the South African Police Service to broaden their minds, and choose to protect, not to harm. Please, we urge you.
Human Rights Pulse core team member, Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.