Remember the Sharpeville Six?

They were six South Africans convicted of the murder of a local township leader who ‘collaborated’ with the apartheid regime. Their case became an international symbol of the anti-apartheid struggle.

What happened? In early September 1984 in Sharpeville (south of Johannesburg) township protesters angered at rent rises converged upon the house of deputy mayor Dlamini. He was dragged from his house, knocked down and set alight. A horrible murder.

The police eventually arrested six people. They were charged under a legal doctrine called ‘common purpose’, which originates in English law. The general idea is that when a group of people embark upon an unlawful or dangerous acctivity and someone gets hurt, they may be found jointly liable even if it is not clear who precisely caused the harm. See Wikipedia:

… the doctrine derives from R v Swindall and Osborne (1846) 2 Car. & K. 230 where two cart drivers engaged in a race. One of them ran down and killed a pedestrian. It was not known which one had driven the fatal cart, but since both were equally encouraging the other in the race, it was irrelevant which of them had actually struck the man, and they were held jointly liable.

In the Sharpeville case the police claimed to have sufficient evidence to implicate the six in the murder, even though a large crowd had been involved cheering and dancing as Mr Dlamini was burning.

The case became an international sensation when the six were sentenced to death. Controversy centred on both the facts of the case – gruesome but not clear – and the quality of evidence adduced. The ‘common purpose ‘ doctrine too was attacked (absurdly) as a manifestly unjust principle. But the key aim was to show that the apartheid system was incapable of justice. For many activists, journalists and diplomats following the trial, the legal and factual subtleties were irrelevant.

Edwin Cameron then was a fast-rising human rights lawyer who raised cogent professional doubts about the verdicts. Here he is many years and much seniority later talking about the legal issues involved.

Anyway, with huge international pressure mounting the case made its way upwards towards South Africa’s Supreme Court in Bloemfontein.

I went along to represent the Embassy to hear the pleadings – one of very few foreign diplomats present.

Representing the Sharpeville Six was Sydney Kentridge QC, who previously had won global acclaim for his work at the inquest of Steve Biko. Here is the CV of one of the most remarkable lawyers of our times.

How, I wondered as a barrister manqué, would Mr Kentridge tackle this one? The eyes of the planet were on him. Every anti-apartheid activist on earth was willing him on to merciless rhetorical demolition of the apartheid regime.

He rose to speak. And in a few dramatic sentences he mastered the courtroom completely.

Not by attacking apartheid. Rather by describing in appalling heart-wrenching detail what had happened to Mr Dlamini as he was beaten and then burned alive by that Sharpeville crowd.

Then, having confronted the evil horror of the crime in itself, like a priest in an Orthodox church swinging the insense jar he began to sprinkle grains of doubt here and there, to and fro, until he made a powerful case that the sentences were unsupportable on the facts and law and, yes, accordingly unjust.

Just terrific technique – it gave the accused their best chance..

But it was not enough. The stony-faced top South African judges under the PW Botha regime decided that the sentences had to stand, and turned down the appeal.

Hours later President Botha granted them a reprieve from their death sentences. In an equal opportunities gesture of defiance he also reprieved four white policemen sentenced to death for murdering blacks.

The point of this now?

Just that having read the opening arguments for Serbia at the ICJ, I feel that they might have done with some of that Kentridge wisdom and acknowledged fully and fairly the miserable oppression of Kosovo under the Tito/Rankovic period and then in the 1980s and on into the Milosevic 1990s.

That would have helped establish that the new leadership in Serbia wanted to occupy its fair share of the moral high ground now, all the better to underpin its formal legal case that Kosovo’s UDI was inappropriate and unlawful.

As it was the presentation was strong and effective and principled, but somehow … depersonalised. It just was not at the level of sheer class that Sydney Kentridge showed all those years ago in dusty Bloemfontein.

It summed up the general approach of Serbia on the Kosovo problem for long decades.

Namely that it is eternally attached to the idea of Kosovo and (maybe) all the territory of Kosovo too – it’s almost irrelevant that all those Albanians are there.