Apartheid, crimes against humanity: How the law remembers the past

Mail & Guardian

2 days ago

Members of the Black Sash and Movement for Colonial Freedom and the Black march to South Africa House in London to deliver a memorandum to South African prime minister JG Strijdom. Photo: ulton-Deutsch Collection/Corbis/Getty Images
In May 1945, the world marked the end of World War II. This was a pivotal historical moment that reshaped the world order and profoundly influenced the development of international human rights frameworks. This was a period that acutely exposed the catastrophic consequences of unchecked state power, genocide and war crimes.
​​The 80th anniversary offers a moment to reflect on how societies remember the past and how those memories shape the present and future. For South Africa, a country with its own complex history of injustice, this anniversary provides an opportunity to examine the role of law in shaping collective memory and advancing justice.
Law is not just a mechanism for resolving disputes or enforcing rules; it is also a tool for remembering. Legal frameworks, court rulings and public policies often reflect how a society chooses to acknowledge its past. In South Africa, the Truth and Reconciliation Commission (TRC) stands as a prime example of how the law can be used to confront historical injustices. The TRC sought to document the atrocities of apartheid, offering victims a platform to share their stories while promoting national healing.
This year's anniversary is especially monumental as it marks both the end of World War II and the Nuremberg Trials, which were the first military tribunals set up a few months after the end of war. For the first time in history, military and political leaders were prosecuted. Prominent leaders of Nazi Germany were prosecuted for war crimes, crimes against humanity and crimes against peace.
These trials set a long-lasting precedent globally that regardless of rank, political influence or even state authority, individuals can be held personally responsible and account for their role in gross human rights violations. Nuremberg's retributive approach to the violation of human rights laid the foundation for international criminal law as we know it today. It has embedded the concept of justice as a fundamental component of post-conflict recovery.
The defining shift in historical legal frameworks — such as the formation of the United Nations, Geneva Conventions and the Universal Declaration of Human Rights — were symbolic of the global reckoning that followed WWII.
This shift in the role of law was also a demonstration of law as not just a mechanism to exert control but an instrument of memory. Beyond its adjudicative function, the law serves as a repository of collective moral judgment. The function of the law is not limited to passing judgments, it sets precedents, holding a determining power on what we as post-trauma nations choose to remember and what we are not only willing to forget but allow to happen.
But the work of memory is ongoing. In South Africa, the TRC laid a foundation, but many argue that its promises of justice and reparations remain unfulfilled. The law must continue to evolve to address these gaps, ensuring that the past is not forgotten but serves as a guide for building a more equitable future.
In 2021, the high court in Johannesburg made a ruling of paramount importance on the history of injustice. The ruling was about the
From this perspective, the recent ruling marks a potentially groundbreaking shift in global justice. Not only does it re-open doors to truth-telling and accountability within contexts once thought closed, it also makes possible the idea of extending prosecutions to economic crimes that were direct beneficiaries of systematic racial oppression. Similar to post-war reparations in Germany, where victims of Nazi prosecutions were compensated and acknowledged, South Africa may reckon with the country's renewed calls of redress.
Law is similar to history in that it is a narrative and repository of events that happened in the past. The inability or failure of the courts to uphold justice in the face of violations — whether because of procedural injustice, institutional inertia or politicised fear — then risks inaction and legal silence turning into national amnesia.
The 80th anniversary of WWII reminds us that the past is never truly behind us. For South Africa, the law must serve as both a mirror and a map — reflecting the injustices of history while charting a path toward a more just and inclusive society. By learning from global and local experiences, South Africa can continue to use the law as a powerful tool for memory, accountability and transformation.
Letlhogonolo Mokgoroane is a legal practitioner at the Johannesburg Society of Advocates and part-time in-house counsel at the Centre for Applied Legal Studies, University of the Witwatersrand. Tebelelo Lentsoane is a research and policy consultant and civic education practitioner.