South Africa's cross-border raids against alleged ANC bases in the neighbouring states: an international legal analysis

Ferguson-Brown, Kevin W

South Africa's cross-border raids against alleged ANC bases in the neighbouring states: an international legal analysis

Thesis / Dissertation

1987

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

This thesis examines whether South Africa is legally entitled to use force in the form of cross-border raids against the neighbouring states in order to destroy alleged ANC bases in these states. Chapter 1 provides a factual account of those cross-border raids in which South Africa has officially acknowledged the participation of its security forces. I do not investigate the legality of those raids which South Africa has conducted against SWAPO bases in Angola because this would involve the complex issue of the legal status of Namibia which falls outside the scope of this thesis. The main basis for the entitlement to use force in international law, the right of self-defence (provided for in Article 51 of the UN Charter) is analysed in Chapter 2 and then applied to South Africa's conduct in Chapter 5. Because self-defence is not permitted against a lawful use of force, Chapters 3 and 4 examine the legality of the ANC's armed struggle and whether the neighbouring states violate Article 2(4) of the UN Charter if (or when) they permit ANC guerillas to use their territories for infiltration into South Africa. Although I argue that the ANC and the neighbouring states are legally entitled to use force against the Republic and, therefore, South Africa cannot avail itself of the right of self-defence, I none the less consider the position were South Africa subjected to an unlawful use of force. Even so, I conclude that South Africa's cross-border raids cannot be justified in terms of Article 51 because they are neither the last resort nor effective in removing the danger of ANC violence and, therefore, unnecessary. Lastly, the analysis in Chapter 1 of the cross-border raids in the context of South Africa's regional policy is used to support my rejection of South Africa's argument that its raids are acts of self-defence because the role that these raids play in the Republic's destabilization of the region suggests that they are fashioned by goals other than self-defence and, consequently, South Africa does not satisfy the requirement of good faith for the legitimate exercise of the right of self-defence. In addition I discuss other bases which have been raised to legally justify the raids (namely, the rights of necessity and hot pursuit) and conclude that South Africa's cross-border raids are contrary to international law.

Keywords

Public Law

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