UNHCR Enters South Africa: A Constrained Mandate · UNHCR E1'TE SOUTH AFRICA: A CONSTRAINED MANDATE...

UNHCR Enters South Africa:A Constrained Mandate

J. Stephen Morrison

September 1991

This paper was written by J. Stephen Morrison. a consultant to the U.S. Committee for Refugees.Morrison. who received his doctorate in political science from the University of Wisconsin. was a

staff member for the House Foreign Affairs Subcommittee on Africa from January 1987through early 1991.

The U.S. Committee for Refugees (USCR) receives no government funding. USCR is grateful forthe important support it receives from the Ford Foundation. the Pew Charitable Trusts, the JohnD. and Catherine T. MacArthur Foundation. the Joyce Mertz-Gilmore Foundation. and the John

Merck Fund. USCR is also grateful to many individual contributors.

UNHCR E1'TE SOUTH AFRICA:A CONSTRAINED MANDATE

J. Stephen Morrison

Introduction

On September 4, 1991, following sixteenmonths of negotiations and confusion, theSouth African Government and the UnitedNations High Commissioner for Refugees(UNHCR) formally signed an agreement on aplan for a UN-managed repatriation of SouthAfrica's estimated 40,000 exiles. That same day,a joint UNHCR-Intemational Organization forMigration (IOM) delegation arrived in Johannesburgto prepare an operational plan for the repatriation.

The $35 to $40 million required for theprogram, to be funded almost entirely throughinternational donors, will be channeled throughUNHCR to implementing partners inside SouthAfrica--church organizations, social welfaregroups, and liberations movements, joinedtogether within the National Co-ordinatingCommittee for the Repatriation for South AfricanExiles (NCCR), chaired by Reverend FrankChikane, General-Secretary of the South AfricanCouncil of Churches.

In entering this agreement, which in-volved South Africa's compromise both in grant-ing a general amnesty to exiles (to supercede theexisting system of government-controlled, case-by-case review of exiles' indemnity applications)and in accepting a UN presence inside SouthAfrica (for the first time in over thirty years),South Africa eliminated an important obstacle toall-party negotiations, slated to begin as early asOctober 1991, aimed at creating a united,nonracial and democratic constitution.

Modeled after the UN-South Africanagreement for the repatriation of exiles inNamibia in 1988-89, and worked out throughUN side consultations with the African NationalCongress (ANC), the Pan Africanist Congress(PAC), and the Azanian People's Organization(AZAPO), the accord's key elements include:

* a general amnesty that excludes onlyserious common law crimes, that has as itscutoff date October 8, 1990, and thatguarantees those persons amnestied thatthey may "peacefully return to South Africawithout risk of arrest, detention, imprison-ment, or legal proceedings whether civil orcriminal in respect of any offense";* criteria for the definition of politicaloffenses* the use of a standard voluntary repatria-tion form, devoid of any self-incriminatingrequirement that exiles list the specificpolitical actions for which they wish to beindemnified'* procedures for UNHCR to inform thosedenied amnesty the reasons why beforethey attempt to retun* an appeal mechanism, comprised ofSouth African judges, before which UNHCRcan make representations on behalf ofpersons denied amnesty-* a one-year time frame for UNHCRinvolvement:* 12 to 15 JNHCR personnel, based atrepatriation centers in Johannesburg,Cape Town, and three or four othersites:

UNHCR Enters South Africa 1


* free access of UNHCR officers toreturnees anywhere in the country, and* freedom of movement for returneeswithin South Africa.The UN should be commended for its

perseverance in securing agreement to a generalamnesty and a UNHCR presence inside SouthAfrica. However, limitations agreed to byUNHCR in the accord. in terms of staff and time.suggest that UNHCR went too far in compromis-ing with South Africa. Open to question now isUNHCR's ability to effectively implement therepatriation program; to cope with the reality ofSouth Africa's domestic violence, theGovernment's continued disproportionate powerover events, and its determination to circum-scribe UNHCR's institutional role; and to ad-dress the serious needs of the 200,000 to250,000 virtually forgotten Mozambican refu-gees inside South Africa.

The UN should be commendedfor its perseverance in

securing agreement to ageneral amnesty and

a UNHCR presence inside SouthAfiica.

In a broader, global context, these com-promises establish a precedent demonstratingthe capacity of a determined government to stallfor protracted periods of time and, only after ithas finally judged that a UNHCR role is in itsbest interest to narrow the terms of UNHCR'sinvolvement to such an extent that UNHCRbecomes a minimalist, highly dependent facili-tator of repatriation, with little autonomousweight of its own inside the host country, andwhich is ultimately ill-equipped to fulfill itsmandate as guarantor of protection and assis-tance to returnees.

A one-year time frame and a skeletalUNHCR staff presence will likely prevent UNHCRfrom providing exiles with adequate protectionand from guaranteeing the integrity of the assis-tance programs implemented by the NCCRAltogether absent from the UN-South Africanagreement is any reference to the Mozambicanrefugees inside South Africa whom the Govern-ment continues to regard strictly as "economicmigrants," who currently receive no UNHCRassistance or protection, and who remain vul-nerable to various forms of abuse inside SouthAfrica, including arbitrary deportation of roughly3,000 Mozambicans per month to areas ofcontinued conflict inside Mozambique.

This paper examines the confusion of thepast year and a half, out of which the September4 accord eventually emerged. Particular atten-tion is paid to the shifting motivations, con-cerns, and behavior of South Africa, the ANC,the UN. and the major powers. In its finalsection, the paper returns to a discussion of theproblematic aspects of the UN-South Africanaccord, and concludes with recommendationsfor specific policy actions by the United Nationsand the United States that, it is felt, can en-hance the effectiveness of the UN-managedrepatriation of South Africa's exiles and bringabout an expansion of UNHCR programs tomeet the needs of Mozambican refugees.

Background: The Past Sixteen Months

Since early 1990. efforts to organize therepatriation of exiles to South Africa and toreach agreement on a UNHCR role have beenhighly problematic, prone to uncertainty, delay,and costly false starts. Over time, it becameclear that these issues did not lend themselvesto smooth negotiations among the Government,the ANC, other opposition forces such as thePAC and AZAPO, and the UN. Nor did theyfavor the quick formulation of a mutually-agreedplan of action, supported by external donors,

2 UNHCR Enters South AfricaUNHCR Enters South Africa2

assisted by the UN, and able to ensure the safeand expeditious return home of thousands ofexiles. In broad political terms, they proved tobe a stubborn obstacle, significantly hinderingprogress in normalizing South Africa's internalpolitics.

A False Start:The Initial Joint Government-ANCIndemnity Framework

Through a joint Government-ANC frame-work granting indemnity to exiles, established intwo rounds of pre-negotiations discussionsbetween the Government and the ANC in 1990(detailed in the "Groote Schuur Minute" of May1990 and the "Pretoria Minute" of August 1990),the South African Government and the ANCinitially chose to handle repatriation themselves,independent of any UN involvement. By mutualagreement, the release of political prisoners andthe return of exiles were to begin, on September1 and October 1, 1990, respectively. By April 1,1991, both processes were to be completed.

Parallel with the Government-ANC nego-tiations, the South African Council of Churches,under the leadership of its General-Secretary,Reverend Frank Chikane, established the NCCRto handle the reintegration needs of returnees.

These arrangements soon founderedbecause of their vulnerability to Governmentmanipulation (evinced by bureaucratic andlegalistic delays and security force harassmentand detention of returnees); ANC objections tothe self-incriminating indemnification proce-dures gazetted by the Government; and theNCCR's financial and logistical difficulties,especially once it became clear in late 1990 thatexternal donor support of the NCCR would beconditioned upon a future UNHCR role. Byyear's end, the Government-ANC indemnityagreement lay buried in confusion, disarray, andmutual recrimination.

Early in 1991, the ANC turned to the UNin hopes of creating a revamped, UN-managed

approach, without, however, formally renounc-ing the Government-ANC indemnity framework.UNHCR--which until then had been confined toa sidelines role, wary of getting caught in anystruggle between South Africa and the ANC--was able to respond positively to the ANC'sovertures, especially once UN General Assemblyresolutions adopted in September and Decem-ber 1990 authorized the UN to become engaged,on a temporary, humanitarian basis, to facilitaterepatriation of exiles. South Africa, following its

By year's end, theGovernment-ANC indemnity

agreement lay buried inconfusion, disarray, and mutual

recrimination.

own evolving agenda, and in response to mount-ing domestic and international pressures,agreed to receive a UNHCR mission in Februaryand agreed for the first time in March to UNHCRparticipation inside South Africa, conditionalupon agreement to "principles and modalities."

South Africa-UNHCR negotiations, cen-tered chiefly on the UN and ANC's demand for ageneral amnesty, dragged on inconclusively for aperiod. Increasingly in July and into earlyAugust, there were contradictory reports-that abreakthrough agreement was imminent, uponwhich a new start could commence, and alter-nately, that formidable opposition within theSouth African Cabinet to any UN institutionalpresence inside South Africa continued to sty-mie final Cabinet approval of agreementsworked out in detail between the UNHCR andthe Departments of Foreign Affairs and Justicein June. Finally, the Cabinet relented, and itwas announced on August 16, 1991 that the UNand South Africa had initialled the agreementthat was formally signed on September 4.

As negotiations proceeded, progress onthe ground remained stalled, broken only by the


UNHCR Enters South A~ 3

occasional ANC-NCCR airlift and the trickleback to South Africa of other small groups ofindividuals. As of mid-August 1991, no morethan 3,000 exiles had successfully reenteredSouth Africa since February 2, 1990. TheNCCR, though able on the strength of emer-gency funding from outside sources to establisha skeletal regional infrastructure for the even-tual reception and reintegration of exiles, con-fronted the imminent prospect of scaling backits operations radically, if no UNHCR-Govern-ment agreement was concluded shortly.

Additional Complexities

There is significant uncertainty abouthow many exiles there truly are, and of them,how many truly desire to return to South Africaquickly. Figures have ranged from the WorldCouncil of Churches' estimate of 100,000 toUNHCR's planning figure of 40,000. Acceptingfor the moment the UNHCR estimate (compris-ing 20,000 ANC members, 10,000 PAC mem-bers, and 10,000 unaligned persons), it is argu-able that as few as 20,000 might actually returnhome soon, even if an attractive, workablerepatriation program is set in place. The profes-sional status of many exiles and the muchpublicized difficulties of finding adequate em-ployment, housing, and educational opportuni-ties in South Africa will likely dampen interest ina swift return. So too will South Africa's internalpolitical climate. As long as that environment isbecoming increasingly unstable, marked bycontinued levels of armed conflict and mountingsuspicion that violence is stoked by clandestinegovernment action. it is rational to expect thatmany exiles, in the relative security of theirhomes in Zambia, Angola, Tanzania, and else-where, will adopt a wait-and-see approach.

Awareness of the likely dimensions ofexile demand for quick action has doubtlessinfluenced the calculations of the ANC and PAC.These now-unbanned organizations clearly havea direct stake in successfully re-uniting inside

South Africa and in demonstrating to their exilesupporters a commitment to bringing themhome. However, they also have had to makehard choices regarding the priority they assignthe exile issue relative to the proliferating de-mands they confront inside South Africa.

Moreover, the return of exiles and thepossible involvement of the UN are matters that,by definition, invite a raw struggle for powerbetween parties of significantly unequal strengthand coherence. TIhat battle plays itself out onthe most sensitive political terrain-touching on

...it Is rational to expectthat many exiles, in the

relative security of their homes inZambia, Angola, Tanzania, and

elsewhere, will adopt a wait-and-see approach.

South Africa's national sovereignty. the integrity,competence, and relative power of the ANC andother opposition forces; what possible expanded(or heavily circumscribed) form of future UNintervention the Government and the ANC areprepared to risk in this phase of South Africanhistory, and whether South Africa and the ANCtruly can convince one another that they havethe will and the capacity to abandon armed,violent campaigns, whether clandestine or overt,and honestly convert to political means of reach-ing a negotiated exit from apartheid.

Not surprisingly, these issues havedense, emotive meaning for the Government andthe ANC alike. At various times, they haveevoked in each shifting contradictory reactionsand internal tensions, especially regarding apossible UN role. For their own separate rea-sons, the ANC and the Government each bothfear and desire a UN role.

Thus far, action on the return of exileshas tended to aggravate existing mutual fearsand suspicions, not to build confidence. Eventshave consistently been distorted by the contin-

4 UNHCR Enters South Africa

4 LINHCR Enters South Africa

ued imbalance of power favoring the Governrnent*the Government's flagrant willingness to manipu-late events to advance its perceived interests: theANC's logistical and other organizational difficulties:the absence of a coherent, sustained ANC approachto repatriation issues and the unfortunate advan-tages handed to the Government when the ANCagreed in 1990 to the indemnity framework.

The shifling approaches to South Africa ofthe United States, European powers, and theUnited Nations itself have further colored actionand debate. Other highly contentious issues, oftenof higher perceived importance than the return ofexiles and the role of the UN, have distractedattention, complicated progress in negotiationsinvolving the UN, and slowed the process of return.Among the latter, the most important haveincluded: international sanctions; delays in therelease of political prisoners the repressivelegislation that, though partially amendedduring the 1991 Parliamentary session, none-theless still limits free political activity andleaves returnees, newly released political prison-ers, and others vulnerable to harassment anddetention: and the deepening climate of violenceand accumulating evidence of its linkage toSouth African security forces.I

The South African Government

South Africa's overriding concern hasbeen to preserve maximum state control overevents. Until March 1991, it rejected outrightany UN role, its antagonism rooted in the UNGeneral Assembly's and the UN Special Commit-tee Against Apartheid's routine condemnation of

I This evidence includes, most recently, the July1991 Weekly Mail disclosures of the Government'sclandestine support of the Inkatha Freedom Party and aGovernment covert operations budget for the current fiscalyear of an estimated $133 million, and the July 1991Independent (London) reports that 'state-hired assassins"directed the September 1990 terrorist attack on aJohannesburg-Soweto commuter train and that the SouthAfrican Police actively joined in Inkatha atrocities.

apartheid, the UNHCR's history of assisting over20,000 South African exiles, and, most impor-tant. the Government's fear that to concede toUNHCR involvement-to sacrifice any degree ofsovereign control over South Africa's internalaffairs--would lead inexorably to increasedinternational pressure for the UN to expand itsactivities to include monitoring township vio-lence, overseeing future interim political ar-rangements, and addressing the needs of theestimated 200,000 to 250,000 Mozambicanrefugees in South Africa.

South Africa's overridingconcern has been to preservemaximum state control over

events.

In implementing the indemnity agree-ment, free of any UN influence, the Governmentmade full use of the advantages in power whichthat framework permitted. Security forcesharassed and detained returnees. Throughlegalistic and bureaucratic maneuvers, theGovernment succeeded in stalling the pace ofreturn-letting pass the October 1, 1990 andApril 1, 1991 deadlines, established in thePretoria Minute for the onset and completion,respectively, for the return of exiles. It alsosystematically employed these measures as alever to guarantee for itself that ANC armedaction inside South Africa had truly been sus-pended, as was also agreed in the PretoriaMinute of August 1990.

When in late 1990, the Governmentunearthed evidence that elements within thearmed wing of the ANC had launched the al-leged "Vula" campaign, a closely compartmentedconspiracy to overthrow the governmentthrough armed action, it used the occasion tovirtually halt the processing of indemnity appli-cations, to deny the ANC's request in late Octo-ber that 3,000 exiles be indemnified as a groupand allowed to return in early November, and to

1JNHCR Enters South Africa 5

UNHCR Enters Sout Abc 5

insist instead that each individual returneecomplete an indemnification questionnairelisting the specific political actions for whichindemnity was requested, a burdensome, con-fessional procedure containing no guaranteethat upon his or her return, the individualwould not be detained on other old charges orbe subjected to harassment and detention bysecurity forces. It was only several monthslater, following the February 12, 1991 meetingbetween then-ANC Deputy-President NelsonMandela and South African President de Klerk,when the "ANC agreed that no new undergroundmilitary structures and no military training ofcombatants would take place inside SouthAfrica," that the Government agreed to "under-take to expedite the release of political prisonersand the return of exiles."2

The Advantages of Power

Up to now, the Government's dispropor-tionate control over the indemnity frameworkand its success at keeping the UN at bay haveworked to South Africa's obvious advantage. Tothe degree that the ANC and PAC have remaineddivided into internal and external wings, theyhave remained off balance. The ANC's internalCongress, originally scheduled for December,was postponed until June, in part because of aninability to bring a significant share of its exilemembership home in time. When the Congressdid finally convene in June 1991. the vastmajority of exiles still had not returned.

The National Co-ordinating Committeefor the Repatriation for South African Exiles(NCCR), prevented from acquiring substantialexternal donor sources until there was a UNrole, has been left in a state of protracted uncer-

2 Interim Report of the Special Committee AgainstApartheid. June 10, 1991. page 9.

tainty, unable to do more than minimal plan-ning and actual preparation. The NCCR hasreceived approximately $1 million from theWorld Council of Churches, and emergencyfunding from the Australian, Canadian, andDutch Governments amounting to far lessthan $1 million. The NCCR and UNHCRestimate the full costs of reintegration at $60million and $35 to $40 million, respectively.

The Government's approach has hadadditional internal benefits. Potential emergentconflict within the Cabinet has been contained.Since early 1991, the Department of ForeignAffairs and the President's Office have reportedlyargued in favor of compromise with the UN andthe ANC, a position vigorously opposed by theDepartments of Law and Order, Justice, HomeAffairs, and a number of individual ministers.In stalling the return process and keeping theUN outside of any repatriation scheme, theGovernment has also avoided providing thewhite opposition Conservative Party and theradical Afrikaner Resistance Movement with aconvenient new rallying point.

The Government's success in convinc-ing the ANC in 1990 to embrace a joint in-demnity framework that excluded the UN, anoption that the ANC, for its own separatereasons (to be discussed), found desirable atthe time, proved to be a boon for those Cabi-net members most staunchly opposed to theUN. It established a precedent, formallyratified by the ANC, which they could repeat-edly cite, well after it had become obviousthat the indemnity framework was failing andthat an alternative, UN-managed programwas required, as proof that compromise withthe ANC and UN was unnecessary. After all,an agreed upon system was in place, one thatthe ANC had yet to officially abandon andthat, perhaps if modified somewhat, could bemade to function marginally better andthereby ease internal and international pres-sure, without forfeiting any degree of control tothe UN.



The South African Government's Changeof Course

In March 1991, following a FebruaryUNHCR mission, months after internationaldonors had made clear that support for repatria-tion would only be provided through a UN-managed repatriation, and after then-ANCDeputy President Nelson Mandela had reaf-firmed that return of exiles was a preconditionto the beginning of all-party talks, South AfricanPresident de Klerk significantly altered theGovernment's official position on UNHCRSouth Africa agreed for the first time thatUNHCR would be welcome to operate insideSouth Africa-if agreement could be worked outon other "principles and modalities" of a repa-triation program. To induce the Government toseal up an agreement. the United States an-nounced on April 19 a pledge of $4 million ofemergency refugee assistance funds in supportof a future UNHCR program. The Japanesesoon followed with a pledge of $3 million.

South Africa's turnabout was widelyinterpreted as reflecting President de Klerk's andthe Department of Foreign Affairs' evolvingstrategy of ending international sanctions andgradually normalizing South Africa's interna-tional relations.

Part of that strategy is a quiet campaignto build relations with high levels of the UN, inhopes of eventually regaining South Africa's seatin the UN General Assembly, from which it wasexpelled in 1974: the UN General Assembly hasindicated the seat will only be restored upon theestablishment of a new constitution in SouthAfrica. Prior to March 1991. at the time of theirface-to-face meeting in Windhoek in March1990, President de Klerk conceded to the UNSecretary-General's request that a UN missionbe permitted to visit South Africa in June 1990.As negotiations with UNHCR proceeded, follow-ing the Government's March 1991 announce-ment. South Africa aggressively expanded diplo-matic contact with the UN Secretary-General'soffice in New York and UNHCR headquarters in

Geneva. In June 1991, South Africa dispatcheda high ranking Department of Foreign Affairsofficial to New York to inform the Secretary-General directly of the progress in UNHCR-South African negotiations.

Throughout the first half of 1991, SouthAfrica also increasingly had to answer mountingdomestic and international pressures to clearaway obstacles to negotiations, if it was tosustain its campaign to regain internationalcredibility and acceptance. As increasing num-bers of political prisoners were released, and asthe Group Areas Act, the Land Act, and thePopulation Registration Act were repealed, theexile issue acquired ever greater salience.Ironically, it emerged as one issue for whichcompromise might be far more easily managedthan, for instance, bringing the country's secu-rity forces and internal violence under control.

By June, following several negotiatingrounds, UNHCR and the Departments of ForeignAffair and Justice had reached agreement onvirtually all details of the accord that was even-tually signed in September.

South African Cabinet Deadlock, Followedby Eventual Compromise

Despite this apparent progress, anddespite repeated Department of Foreign Affairsassurances to the UN throughout late June andJuly that the Cabinet was poised to approve theagreement, final Cabinet action was delayeduntil mid-August. It appeared to observers ofthe negotiations that, with all the substantiveand technical issues in the negotiations longsince resolved, the true obstacles to a finalagreement were indeed the same fundamentalones that motivated the Government to shunthe UN in 1990: an unwillingness to distinguishbetween a minimal, temporary UNHCR presenceinside South Africa for humanitarian purposesand the UN as a whole, and the collateral fearthat to enter any agreement with UNHCR,however carefully circumscribed, was to risk



permanently compromising South Africa'scontrol over its internal affairs.

The lifting of European sanctions in April.followed by President Bush's Executive Order ofJuly 10, 1991 repealing U.S. sanctions con-tained in the Comprehensive Anti-Apartheid Actof 1986, represented major diplomatic advancesfor the South African Government, achievedwithout prior final compromise with UNHCR To

...an unwillingnme todistinguish between a minimal,

temporary UNHCR presence insideSouth Africa for humanitarian

purposes and the UN as a whole,and the collateral fear that to enter

any agreement with UNHCR,however carefully circumscribed,

was to risk permanentlycompromising South Africa's

control over its internal affairs.

some extent, external pressures on South Africaeased, and the Department of Foreign Affairs'arguments in favor of the UNHCR henceforthappeared less compelling, once the UnitedStates and others had forfeited the single mostimportant instrument capable of focusing atten-tion on the issues of repatriation and the UN.

In addition, the turmoil of theInkathagate scandal, though it led to the demo-tion of Law and Order Minister VIok and De-fense Minister Malan, two hardline Cabinetmembers, also drew into sharper internationalfocus South Africa's internal violence and itsconnection to government security operations.The internal crisis of the de Klerk Governmentonly worsened, as the ANC issued demands thatthe Government resign and be replaced by aninterim government, assisted by an internationalmonitoring presence, and as tensions between

the Government and white extremists intensifiedsharply, seen most vividly in the violentVentnersdorp confrontation of August 9 betweenthe South African police and armed militants ofthe Afrikaner Resistance Movement. In thiscontext, delays in the final Cabinet approval ofthe UNHCR agreement were hardly surprising.

Nonetheless, whatever the internal dy-namic of the Cabinet was in June and earlyAugust, and however the internal crises of Julyand early August absorbed attention and exac-erbated existing fears, the Government still hadto cope somehow with the expectations createdby the Department of Foreign Affairs' accelerateddialogue this year with the UN Secretary-General's Office; the international donors' insis-tence on only supporting a UNHCR-led repatria-tion- the Government's repeated recent assur-ances to the United States and other Westernpowers that compromise was imminent; andmost importantly, the ANC's refusal to considerentering negotiations until there was progresson a UNHCR-managed repatriation.

An endpoint had been reached in theUNHCR-Government negotiations, the exilequagmire had become quite conspicuous, andthe fate of the NCCR hung in the balance. ForSouth Africa to adhere to an obstructionistposition was to risk a highly publicized UNabandonment of negotiations, ANC refusal toenter all-party talks, open condemnation in theSeptember 13 UN debate on apartheid, and anerosion of optimism and confidence in theUnited States and Europe. Compelled by thesecircumstances, the Government searched formeasures to rescue its credibility and to revivethe momentum of President de Klerk's programof internal reform. Ultimately, as of mid-August,the President and Minister of Foreign Affairsprevailed in Cabinet, and agreement withUNHCR was sealed.

The September 4 accord does not mean,of course, that there is broad comfort and plea-sure within the upper reaches of the Govern-ment regarding the imminent arrival of UNHCR,



however circumscribed its staff and time frame.Undoubtedly, fears exist that compromise withUNHCR will erode the Government's authorityand invite an international campaign for the UNto insert itself into South Africa as a peace-monitoring force and possible guarantor of aninterim government.

The African National Congress

In the first half of 1990, prior to the finalestablishment of the South Africa-ANC indem-nity framework contained in the Pretoria Minuteof August 1990, several rounds of consultationstook place between the ANC and UNHCR-during a March 1990 meeting in Windhoekbetween Nelson Mandela and then-UN HighCommissioner Stoltenberg, during a visit shortlythereafter by Mandela to UNHCR headquartersin Geneva, and during a UNHCR mission toLusaka, Zambia to meet with members of theANC's National Executive Committee.

From these contacts, it became apparentto UNHCR that, though the ANC did not dismissaltogether the future possibility of UNHCRparticipation in a repatriation scheme, it pre-ferred for the moment not to press for thatoption and instead to strike independent ar-rangements with the Government.

Proceeding without UNHCR

Several considerations apparently en-tered the ANC's calculations.

Sensitivity to problematic aspects of theUN's performance during Namibia's 1988-89transition to independence played a part: theUN's perceived weakness on the ground, relativeto the South African Government, evinced in itsinitial capitulation to the Government in thepreparation of electoral registration laws; itsinability to eliminate intimidating securitypatrols (involving former members of Koevet, theSouth African Defense Forces, and the South

West African Territorial Force, and the use ofSouth African Caspirs); and the overall SouthAfrican control over critical security mattersthroughout the transition period.

This problem's history made the ANC lessthan fully confident that UNHCR which unlikein Namibia would be the single UN agencypermitted to operate inside South Africa. re-stricted to a temporary period and minimalpersonnel, would avoid falling prey to similarSouth African pressures and manipulationswhile managing a South Africa repatriationprogram.

...the ANC preferred to usenegotiations over the return of

exiles as a means to cast itself asan equal partner with the

Government, fully capable ofensuring the interests of its

constituency in the planning andexecution of repatriation

Second, the ANC feared that a Govern-ment-UNHCR agreement might weaken the UN'scampaign to maintain maximum isolatingpressures upon South Africa and instead ad-vance the Government's efforts to upgrade itsstatus internationally, through the lifting ofinternational sanctions and the gradual returnto good standing in the UN.

Third. the ANC preferred to use negotia-tions over the return of exiles as a means to castitself as an equal partner with the Government.fully capable of ensuring the interests of itsconstituency in the planning and execution ofrepatriation arrangements. At the time, the ANCviewed conceding to a third-party UN role asneedlessly sacrificing an important opportunity,early on in the ANC's conversion to a newlylegalized political force inside South Africa.

Finally, it is plausible that the ANC fearedthat a UNHCR-managed repatriation would yield

UNHCR EnteTs South Africa 9


control to UNHCR over dissidents detained bythe ANC as South African agents and result, asoccurred during the repatriation of Namibianexiles in 1989, in damaging and highly publi-cized allegations of ANC torture and other formsof abuse. By late April 1990, approximatelyfifteen dissidents had returned to Johan-nesburg, then-ANC Deputy President NelsonMandela had admitted publicly that the ANChad in the past mistreated some of its exiledmembers and claimed that those responsiblehad been removed, and reports had circulatedfrom dissidents in Kenya that the ANC stilldetained at least 120 people in Uganda andAngola.3

The ANC Changes Position

Less than six months after the PretoriaMinute, the ANC altered its position, grantingclearance to UNHCR as of early 1991 to opennegotiations with the Government and to dis-patch a mission to South Africa in February.That decision appears to have stemmed, aboveall, from the ANC's concern over the acceleratedspread of violence from Natal to the Transvaaltownships during the second half of 1990;unresolved disputes with the Government overindemnity procedures; recognition of the latitudethat the indemnity framework gave the Govern-ment for delay and harassment and detention ofreturnees; and recognition as of late 1990 thatsubstantial international donor support wouldonly flow to the NCCR through UNHCR

Incorporating UNHCR into revised repa-triation efforts was the only realistic option forenhancing the protection of returnees, securingthe general amnesty that the Government-ANCindemnity framework did not contain. providingan independent international monitoring pres-

3 'Torture Tales May Unsettle African Congress."New York Tfmes, April 25, 1990, page A9.

ence of South Africa's worsening domesticenvironment, overcoming the ANC's own inter-nal logistical shortcomings. and securing ad-equate financial resources to ensure an effectivereintegration of returnees.

Puzzling Aspects of the ANC's Approach

In retrospect, it has been somewhatpuzzling that the ANC leadership in place insideSouth Africa has not, at least until recently,attached a higher priority to the return of exilesor been able to respond to developments withgreater assertiveness and clarity of purpose.

Though many exiles may prefer to holdback, many of those idle in ANC settlements inTanzania, Zambia, and elsewhere, presumably avocal constituency within the ANC, have report-edly become increasingly dissatisfied with theuncertainty and protracted delays they haveexperienced. Yet at the December 1990 ANCConference in Johannesburg and at the June1991 ANC Congress in Durban, the ANC'spublic statements paid only minor attention tothe return of exiles and the imperative of ageneral amnesty, guaranteed under UNHCRauspices. Only three ANC/NCCR air charterscarrying exiles home have been organized sinceearly 1990, even though thousands of exiles-7,000 as of mid- 1991-have been indemnifiedby the Government.

Though it became increasingly dissatis-fled with the indemnity framework almost imme-diately after the Pretoria Minute of August 1990,the ANC only gradually re-opened a dialoguewith the UN, encouraged by external donors.ANC clearance to UNHCR to test theGovernment's intentions, backed also by thetacit agreement of the PAC and AZAPO, wasdelayed until early 1991.

In the meantime. ANC and other exiles'participation in the indemnification process didnot cease. owing to the quandary in which theANC found itself. Since the ANC could notassume that UNHCR-Government discussions


10 UNHCR Enters Sout Africa

would bear fruit, under terms that guaranteedits perceived interests, it was loath to abandonthe ANC-Government indemnity agreementprematurely, thereby closing off eisting av-enues of return that--however flawed and proneto Government manipulation--continued tofacilitate a minor flow home of exiles. Ironically,however, this ambiguous ANC stance inadvert-ently played into the hands of South Africanhardline opponents of a UNHCR role, who couldconveniently point to the continued existence ofthe indemnity framework as one importantreason why the Government need not compro-mise with UNHCR

By the time the Government-UNHCRnegotiations had begun in earnest in April 1991.the ANC had forcefully made clear its demandfor a general amnesty. However, prior to that itappeared to react sluggishly and only sporadi-cally to interruptions, bureaucratic delays, anddisputes over indemnification procedures. As aresult, these developments never received thesustained focus necessary to guarantee themhigh visibility as issues, domestically or interna-tionally.

In part, the secondary priority the ANCappears to have assigned repatriation issuesduring most of the period in question probablyreflected an awareness of the low numbers ofexiles likely to desire a quick return. In partalso, it reflected the degree to which the ANCwas itself overwhelmed, as it struggled begin-ning suddenly in early 1990 to establish itselfinside South Africa as an organized politicalentity. Internal issues---becoming operationalon the ground, strengthening relations with theinternal opposition, attempting to preserveinternational sanctions, formulating positions topursue in pre-negotiations with the Governmentover spreading violence, the release of politicalprisoners, and the removal of apartheid's legisla-tive pillars-quickly became all-absorbing,taxing the ANC's already overstretched organiza-tional capacities.

Under these circumstances, if the ANCwere to move too quickly and aggressively in the

return of exiles, it would have had to commitsignificant levels of scarce resources and ener-gies to their reintegration, especially whilegovernment resources were unavailable andexternal donor resources were conditioned upona UNHCR role. Plausible also, the ANC pre-ferred a slower versus a quicker pace of return,as a means of moderating the political tensionsassociated with the returnees' incorporation intothe internal ANC, while also lowering the risk ofembarrassing dissident allegations of mistreat-ment and of additional security-related disrup-tions-d la the Vula affair--engineered by mav-erick elements dissatisfied with the ANC's Au-gust 1990 decision to suspend its armed cam-paign against the Government.

The United Nations

UNHCR's entry to South Africa, autho-rized by the UN General Assembly as a humani-tarian step to facilitate the repatriation of exiles,represents only a partial, temporary departurefrom the United Nations' overall, continuedapproach of pressing for maximum diplomaticand economic pressure to isolate South Africa.For that reason, pressures emanate from withinthe UN to limit the scope and time of UNHCR'spresence inside South Africa. Whether thatultimately proves to be in the best interests ofSouth African returnees, other opponents ofapartheid, and Mozambican refugees insideSouth Africa is unclear. Important in thisregard, of course, will be the evolving views ofthe ANC and other opposition forces, and thefuture policy priorities of the United States andother major Western donors.

The guiding policy of the UN towardsSouth Africa was recently spelled out mostcomprehensively in the Declaration on Apart-heid and its Destructive Consequences inSouthern Africa, adopted on December 14, 1989by consensus in General Assembly resolution S-16/1. That declaration detailed the conditionsthat South Africa had to meet to create the


UNHCR Enters South Afria 11I

necessary climate for negotiations and exhortedall government and intergovernmental organiza-tions not to relax existing measures until thoseconditions had been satisfied.4 In a subsequentinterim report issued in June 1991, the UNSpecial Committee Against Apartheid revieweddevelopments in South Africa during the firsthalf of 1991 and concluded that:...only a limited progress was achieved inremoving the obstacles to negotiations andin commencing discussions on a democraticconstitution. Indeed, the Pretoria regime hasnot yet fulfilled all of the five necessaryconditions to create a climate conducive tonegotiations...

... substantial progress towards negotiationswould be made if the regime took immediatesteps: to end the violence; to release all politicalprisoners and allow the return without restric-tions of all exiles; to repeal effectively the mainpillars of apartheid; and to abrogate all repres-sive legislation designed to circumscribe politicalactivity.

A premature lifting of pressure, whichwould result in the elimination of sanctionsand in the establishment of close relationswith South Africa, will be counterproductiveif not outright dangerous. (emphasisadded)

The UN made an exception to the policyin the case of UNHCR and the repatriation ofSouth Africa exiles, after discussions resumedwith the ANC in late 1990. Anticipating that the

4 Conditions include the following: (a) release allpolitical prisoners and detainees unconditionally andrefrain from imposing any restrictions on them (b) lift allbans and restrictions on all proscribed and restrictedorganizations and persons: (c) remove all troops from thetownships: (d) end the state of emergency and repeal alllegislation. such as the Internal Security Act. designed tocircumscribe political activity- and (e) cease all politicaltrials and political executions.

ANC might well soon favor the UNHCR becom-ing reengaged in negotiations with the Govern-ment, the UN passed two resolution in late 1990implicitly authorizing a temporary UNHCR roleinside South Africa for humanitarian objectives. 5

Chalenges to UNHCR

UNHCR now faces several formidablechallenges in implementing the UN-SouthAfrican accord.

Besides hurriedly issuing an appeal tointernational donors, UNHCR must scramble toovercome the lag in logistical preparation thatthe confusion of the past year and a half hascreated. It will have to swiftly strike agreementswith those NCCR-affiliated agencies that will beUNHCR's operating partners, so that thegroundwork can be laid-in terms of transport,housing, food, and education-for the arrival ofexiles. The UNHCR-managed repatriation of43,000 exiles to Namibia in 1988-89, by com-parison, had the benefit of more than one year'slead-planning. In the case of South Africa,UNHCR will enjoy perhaps three months.

No less important, pressures from withinboth the UN and the Government will favoradherence to the draft agreement's restrictionsupon the time frame for a UNHCR presence inSouth Africa (one year) and the number of

a Paragraph 9 of UN General Assembly Resolution44/244, "Policies of apartheid of the Government of SouthAfrica," adopted September 17 1990, "Requests theSecretazy-General. through the relevant United Nationsagencies, to provide all necessary assistance for thevoluntary repatriation of the South African refugees andpolitical exiles in safety and dignity..." Paragraph 16 ofUN General Assembly Resolution 45/176 A. "Internationalefforts to eradicate apartheid." adopted on December 191990, "urges the international community and theSecretary-General, through the relevant United Nationsagencies, to provide all possible assistance to facilitate there-establishment of previously banned politicalorganizations as well as the reintegration of releasedpolitical prisoners, and returning South African refugeesand exiles."



UNHCR personnel (12 to 15). This minimalistapproach calls into serious question whetherUNHCR can ever be reasonably expected toguarantee that the terms of the agreement aremet: that the judicial review mechanism trulyfunctions autonomously, and is not subordi-nated to the Government; and that in SouthAfrica's increasingly unstable climate, returneesdo not become victims of security force-incitedviolence or otherwise suffer under the expansiveand still frequently arbitrary power vested in thestate's security forces under existing legislation.

UNHCR now faces the question ofwhether, and how, to open

discussions with the Governmentaimed at expanding its activities to

meet the needs of Mozambicanrefugees.

Among those who return will be persons whoenter the "independent" homeland states(Boputhatswana, Ciskel, Venda, and Transkei)where, as the continued detention of an esti-mated 164 political prisoners in Boputhatswanademonstrates, anti-apartheid activists are vul-nerable to an additional layer of security risks.Altogether unclear is how UNHCR will cope withthe protection of this population.

UNHCR and Mozambican Refugees inSouth Africa

According to the U.S. Committee forRefugees and the International Committee of theRed Cross, no fewer than 200,000 to 250,000 ofthe 300,000 to 500,000 Mozambicans insideSouth Africa likely have legitimate claims torefugees status, as civilians fleeing conflict inMozambique. At present. this population, themajority concentrated in the Kangwane andGazankulu homelands, receives only minimal,

largely private forms of assistance, woefullyshort, in the opinion of private relief workers, oftrue requirements. 6 UNHCR provides no screen-ing, assistance or protection. By contrast.UNHCR-managed assistance reaches more than900,000 Mozambican refugees in Malawi and120,000 of the Mozambican refugees in Zambia,Zimbabwe, and Swaziland.

Devoid of any legal protections, otherthan temporary three and six month residentpermits in the homelands, Mozambican refugeesare vulnerable in a multitude of ways: to as-sault by border guards and Kruger Park rang-ers: to injury from a 70 kilometer electrifiedborder fence (now operated at nonlethal levels,though between 1986 and 1989. when it didfunction at lethal levels, an estimated 89 refu-gees were killed); to capture and detention bypolice and army officers lasting into months; tosummary deportations (averaging roughly 3,000per month) by locally appointed "passport con-trol officers," with no access to courts or legalcounsel, and with a high likelihood of beingforcibly returned to conflicted areas insideMozambique; to exploitation as "stoop labour"on plantations in the eastern Transvaal (whathas amounted, in certain instances reported inthe South African press in late 1990, to actualslave trading); and to theft and forcible conscrip-tion by Mozambique government forces andguerrillas of the RENAMO insurgency, each ofwhich is active in border areas and which, in thecase of RENAMO, has, reportedly at least inpast, received extensive support from SouthAfrican military intelligence and private Portu-guese interests resident in South Africa.

The South African Government, havingthus far refrained from becoming a signatory tointernational conventions on refugees, recog-nizes no form of refugee status inside its bordersand honors none of the international legal

6 Assistance is provided by grassroots committees,the South African Council of Churches, the CatholicChurch, Operation Hunger, and the InternationalCommittee of the Red Cross.



protections accorded refugees. In its view, everyMozambican refugee inside South Africa is an"economic migrant".

During the UN-South African negotia-tions over the repatriation of South Africanexiles, UNHCR made the tactical decision not toinsist upon addressing the issue of Mozambicanrefugees, out of fear that pressing for the inclu-sion of such a complication into an alreadycomplex and uncertain negotiating processwould exacerbate the Government's concernover maintaining control over its internal affairs

and the scope of future UN involvement insideSouth Africa, with the likely result thatprogress on all counts would become stalledindefinitely.

Having made that judgment, and hav-ing now succeeded in reaching an agreementthat brings it into South Africa exclusivelywith reference to South African returnees,UNHCR now faces the question of whether,and how, to open discussions with the Govern-ment aimed at expanding its activities to meetthe needs of Mozambican refugees.

Conclusions and Recommendations

Considerable time has been sacrificedin the past year and a half. The planning andimplementation of the repatriation of SouthAfrica's 40,000 exiles has been stalled, owingchiefly to the advantages in sheer powerenjoyed by the South African Governmentthat permitted it to subvert the originalindemnity agreement with the ANC, andsubsequent to that, to drag out negotiationswith the UN. Compounding matters were ahost of related factors. The ANC's initialambivalence towards the UN meant thatmonths were consumed as the ANC firsttested the viability of the indemnity agreementwith the Government. Additional monthswere absorbed in getting negotiation betweenthe Government and UN underway, once theANC had decided in late 1990 that it preferreda UN-managed exercise.

On the part of the United States andEuropean powers, their distraction and lack ofstrong focus on the repatriation issue and theneed for UN involvement-that these werenever in any way linked to the lifting ofsanctions-did not help. Nor did the UN'sskittishness and innate caution, stemmingfrom its understandable desire to becomeseriously engaged in South Africa only after it

had clearance from the ANC andauthorization from its member states, whoseofficial overriding sentiment, in all otherrespects, remains to uphold maximumisolating pressures upon South Africa.

Today, there is reason for hope. AUN-South African accord has been signed;negotiations between the UN and theGovernment reached an endpoint thatushered South Africa into compromise on theissue of a general amnesty and agreement toa UNHCR presence inside the country. Thereis greater recognition, internally andinternationally, of the imperative to resolvethis major obstacle, through the involvementof the UN, if negotiations between theGovernment the ANC, and other oppositionforces are ever to begin. In his evolvingdialogue with the Government, the UNSecretary-General has introduced theprestige of his office into the equation. TheUnited States, the Japanese, and others havesignaled their commitment to underwritingthe costs of a UN-managed repatriation.

Nonetheless, the terms of the UN-South African accord alone do not guaranteea successful repatriation. Pressures from theGovernment and from within the UN itself

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14 UNHCR EnteTs South Africa


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will almost certainly favor limiting the UN'sinstitutional presence in South Africa and thescope and time frame of its activities. YetSouth Africa's domestic environment, itscontinued high levels of violent armed conflictthe Government's inadequate controls oversecurity forces which themselves have beenimplicated in stoking the violence, andrepressive legislation that still leavesopponents of the government vulnerable toarbitrary detention and harassment requiremore than a narrow, brief entry by the UN.

Present circumstances call for arevamped UN approach to South Africa. one thatself-consciously addresses how, in this periodwhen most sanctions have been removed but thecrisis in South Africa persists, the UN can, withthe active support of the United States andEuropean powers, aggressively interject itself intoSouth Africa in new ways that have a morestabilizing, protective influence than a skeletalUNHCR operation, operating on a one-year timeframe, will be capable of achieving. That isessential, on moral and practical grounds, if exileswho depart the relative security of Tanzania,Angola. Zambia, and elsewhere are to beeffectively shielded from the risks of enteringSouth Africa. under UN auspices. It is equallyessential, if UNHCR is to begin addressing theoverlooked needs of Mozambican refugees insideSouth Africa.

The United Nations

The United Nations should take severalsteps to strengthen and broaden its role inSouth Africa.

1. To satisfy its protection and assistancemandate, UNHCR should win agreement fromSouth Africa to expand its personnel to include200 monitors, the majority to be positioned inthe conflicted township areas and homelands

where they can be integrated into the NCCR'sreception and reintegration activities forreturnees. A smaller number of legal expertsshould be assigned to monitor the judicialamnesty review mechanism. The UNHCRmonitoring body should be organized toprovide regular composite reports to the UNSecretary-General on conditions in NCCR-aided communities, the effectiveness of theUNHCR-NCCR programs of assistance, and theimplementation of the general amnesty.

2. UNHCR should win agreement fromSouth Africa to amend the terms of the UN-South African accord to allow an open-endedtime frame, subject to review every 3 to 6months by a multi-party committee comprisedof UNHCR, the Government, the ANC, PAC,AZAPO, and the NCCR

3. UNHCR should open negotiations withSouth Africa to secure agreement from theGovernment for UNHCR to begin providingscreening, assistance, and protection toMozambican refugees inside South Africa, inpartnership with international relieforganizations. As part of that understanding.UNHCR should press the Government to signthe 1951 UN Convention on the Status ofRefugees, acknowledge the legitimate refugeestatus of a large segment of the Mozambicanpopulation inside South Africa, cease arbitrarydeportations, and take legal action againstlabor abuses.

4. The UN Security Council shouldsharpen the focus upon the reality of violenceinside South Africa. and the need to bringsecurity forces under control and end covertoperations, by authorizing an investigativecommission, modeled after the UN teamsestablished through UN Security CouncilResolution 687 to oversee the disposal of Iraqi

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UNHCR Enters South Afria 1L5

weapons. The commission would beresponsible for amassing data on Governmentcovert programs and the actions of SouthAfrican security forces, for scrutinizing anyGovernment claims to introduce reforms, forproposing specific plans of action which theGovernment should undertake, for proposingpossible UN technical assistance in theretraining of security forces, and for proposingpunitive diplomatic and economic actions thatthe UN should undertake, in the event thatthe Government fails to curb its securityforces and close down its covert operations.

The United States and Other Major Donors

The United States and other majorWestern donors should take the followingsteps.

1. They should assert, as a priority intheir dialogue with South Africa, theimportance they attach to amending the termsof UNHCR's involvement in South Africa, sothat UNHCR is not bound by a one-year timeframe, and instead operates on an open-endedbasis subject to review by a multi-partycommittee, so that UNHCR's personnel isexpanded to include 200 monitors, and sothat UNHCR soon is officially able to addressthe needs of Mozambican refugees.

2. They should press within the UN forthe establishment of a UN investigativecommission focussed upon violence in SouthAfrica and means to bring security forcesunder control and end covert operations.

3. They should take steps to fund andintegrate American and othernongovernmental organizations in theactivities of the NCCR

4. Their officials should aggressivelymonitor the judicial amnesty reviewmechanism.

For years, South African exiles who fledthe injustice and repression of apartheid haveawaited the opportunity to return home insafety and dignity. For years, Mozambicanrefugees fleeing the exceptional brutality ofMozambique's internal war have awaited theopportunity to receive adequate internationalprotection and assistance in South Africa and,when they choose to return home, to do so insafety and dignity.

After much delay, the entry of UNHCRinto South Africa for the repatriation of exilesis an important first-and partial-stepforward. Much more, however, can andshould be done by UNHCR. the United States,Japan, and European donors to address boththe realities confronted by Mozambicanrefugees in South Africa and the realities soonto be encountered by exiles as they attempt toreconstruct their lives in South Africa.Violence and uncertainty persist in bothMozambique and South Africa. In each case,the fundamental political conflicts whichgenerated the flight of thousands have notbeen resolved. The power of the South AfricanGovernment to dominate events has not beencurbed.

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16 UINHCR Enters South Africa

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