Foreign Relations of the United States, 1964–1968, Volume XXIV, Africa

653. Telegram From the Department of State to the Embassy in South Africa¹

Washington, February 10, 1968, 2230Z.

113604. Subject: Trial of 37. Ref: 113548.²

1. Following based on uncleared memcon (Noforn). Under Secretary called in Amb Taswell 11:30 AM Feb 10 and handed him Terrorism Trial Aide-Memoire (text reftel). In doing so Mr. Katzenbach noted that we reiterate points made previously and relate them now to recent sentencing. He said that he was unimpressed by SAG bringing in common law at this late date, an unusual legal procedure.

2. After reading document Taswell said that certain aspects of Act, such as retroactive provisions and placing onus on accused to prove innocence, “go against the grain” and are unfortunate. While South Africa doesn’t like to do such things, they are compelled to take such measures because of the kind of people they are dealing with—murderers, terrorists, people with no respect for law. He claimed that the accused were part of organized movements originating in Zambia, Tanzania, Algeria and elsewhere and that SAG had to take steps to protect South Africa. If it didn’t, it would be subject to severe criticism at home. Taswell asserted that his government had “seen what was happening in other parts of the world” and it was determined to stamp out such possibilities in its own country. If SAG took strong action now it might have salutary effect on others contemplating similar moves. Anyone so inclined will know he must face consequences.

3. Taswell observed that he and Under Secretary had discussed before and continue to disagree as to whether SAG has right to conduct trial and take other actions vis-à-vis SWA. He said Mandate Agreement gives SAG right to administer Territory as integral part of SA and asserted SAG believes it carrying out “spirit” of mandate. He promised to pass Aide-Memoire to his Government, “but didn’t think they would do anything about it.” Court has acted and sentences will be carried out.

4. Pointing out certain phrases in text such as “gravest concern” and “outraged”,³ Taswell commented that they are beginning to lose significance through repeated use and he was unable to gauge just how strongly US really felt on this matter. Under Secretary replied: “This churns me up about as much as anything I have run into in quite a while.” Mere fact that one may be dealing with some people “who are not very nice” does not justify any government disregarding accepted legal practices. Noting recent news photos of executions, Taswell remarked that people have been summarily shot in VietNam and there is no great protest. The Under Secretary replied that the US had in several meetings protested the action to which Taswell referred. Taswell asked if the US had put its protest in writing; if so he would like to have a copy. The Under Secretary said that he had given the Ambassador his assurance that the US had protested such actions. The Ambassador could repeat that assurance to his Government.

5. Noting press report that USUN Del has stated US would wish associate itself with any initiative to bring matter of trial before SC again, Taswell said that he hadn’t heard of us taking Vietnamese executions to the Security Council. Mr. Katzenbach observed that there was a difference between the whole situation in VietNam and in SWA and between actions taken in the heat of the moment outside the law in actual fighting or in an insurgency situation, reprehensible as they might be, and the actions of a government which passes laws and takes actions through its courts which denigrate the meaning of law. Taswell asked if US wanted SA to wait until they had insurgency and “situation was so bad” that they could act without fear of censure. Mr. Katzenbach reiterated his distinction and asserted that in his opinion it was greater crime to do such things in court than in heat of moment. He said that continuation of SAG’s present actions would lead to corruption of its legal system. He could not understand why SA was willing to pay such a high price.

6. Later Taswell asked Deptoff if Emb Cape Town would be furnishing copy Aide-Memoire to DFA. He was told such was intent, although time delivery might be affected by fact that it was already Saturday night in SA.

Rusk

1. Source: Department of State, Central Files, POL 29 SW AFR. Confidential; Priority. Drafted by Clark; cleared by Palmer, Donald F. Herr of U, and Runyon; and approved by Clark. Sent to Cape Town and Pretoria, and repeated to London, Ottawa, and USUN.
2. Telegram 113548 to Cape Town, February 10, transmitted the text of the aide-memoire, which stated that the U.S. Government considered that the South African Government had no right to apply these Acts and other similar legislation to the inhabitants of South West Africa and therefore was obligated to release and repatriate those South West Africans who had been held under this legislation, including those recently sentenced at Pretoria. (Ibid)
3. The aide-memoire states that the United States viewed “with gravest concern” the outcome of the Pretoria trial. It does not, however, use the phrase “outraged.”