649. Letter From Senator Robert F. Kennedy to Secretary of State Rusk1
Dear Mr. Secretary:
Later this month or next month proceedings will commence in Pretoria in the trial of Eliaser Tuhadeleni and some 36 other citizens of Southwest Africa who are charged by the Republic of South Africa under the Terrorism Act enacted by that nation on June 21, 1967.
As matters now stand, it is my information that this trial could culminate in capital sentences, and that a mass hanging may take place. This would not only be morally unacceptable, but I strongly believe it would also involve great potential danger both in the near future and in the long run to the political stability of that part of Africa and to broad American interests there and in the rest of Africa. In any event, there can be no question but that a great and irretrievable injustice will be done if the course of events is not changed.
As I am sure you are aware, the acts charged against the defendants in this proceeding all occurred before the law making them criminal had been enacted. In fact, it is an inescapable conclusion that the Act was passed in June 1967 solely for the purpose of making criminal action taken [Page 1092] by the defendants between June 27, 1962, which is “deemed” to be the effective date of the Act, and June 21, 1967, which was the date of its enactment.
The charging of a capital offense for acts which were not even criminal at the time they were done is, of course, completely contrary to the entire history of western law in both common law and civil law countries in recent centuries. It is particularly indefensible when the acts made criminal in this ex post facto fashion include acts of an essentially political nature, as is the case in the Terrorism Act of 1967 in South Africa. Among other things, it makes unlawful actions (even though taken before the statute was passed) which “had or was likely to have had” any of a number of results, including a result “to embarrass the administration of the affairs of the State.” Furthermore, it puts the burden of proof on the defendant to prove beyond a reasonable doubt that he did not, by whatever act he took, intend the result described.
In addition, the statute expressly defines the territory over which jurisdiction is asserted to include the territory of Southwest Africa. This is done despite the virtually unanimous revocation by the United Nations before the Act was passed, of the mandate which the Republic of South Africa formerly exercised over Southwest Africa. Accordingly, it seems plain that if the revocation of the mandate by the United Nations, which the United States fully supported, is to have any real effect, the Republic of South Africa cannot have the capacity to rely upon the Terrorism Act of 1967 to prosecute inhabitants of Southwest Africa. This is wholly apart from the fact that simply the recitation of the history of the Terrorism Act of 1967, and of its provisions, chose it to be in violation of the obligation that the Republic of South Africa had towards the inhabitants of Southwest Africa under the Mandate Agreement prior to its revocation.
I understand that informal consideration is being given to the possibility of a General Assembly resolution which would submit to the International Court of Justice the question of the capacity of the Republic of South Africa to prosecute inhabitants of Southwest Africa in the manner I have described. I most earnestly urge that you give the most thoughtful consideration to the role the United States might play in these events, and to supporting as vigorously as possible any such action in the United Nations.
I am enclosing a copy of the Terrorism Act.2
Sincerely,
- Source: Department of State, Central Files, POL 29 SW AFR. No classification marking. Sent to Under Secretary Katzenbach with a covering memorandum from Kennedy to Katzenbach that reads: “Dear Nick: I understand you know something about this. I hope you can get the State Department to do something. Best, Bob.”↩
- Not attached.↩
- Printed from a copy that bears this typed signature.↩