The decision by the United States to classify white South Africans as “refugees” fleeing “unjust racial discrimination” is absurd, illegal and dangerous. The claim that white South Africans face racial persecution is a perversion of the past and the present, as well of “refugee” status under the 1951 Refugee Convention and international law.
By all metrics, white South Africans continue to benefit from colonial apartheid on account of their “race”: white South Africans are overwhelmingly more likely to be born into relative prosperity (by a factor of seven), less likely to be killed, more likely to get jobs and will — on average — live longer than their fellow South Africans.
They also still own a perversely disproportionate amount of the land and control a disproportionate section of the economy. What is more, these racial advantages travel and have a long entanglement with white supremacist policies in the US.
The white farmers resettled (or perhaps re-settlered) in the US this week were by no means the first. Historians document the participation of Afrikaner settlers in 19th century colonial expansion of the US. More recently, white farmers have arrived in Mississippi as farm workers, only to be paid higher wages than their black supervisors. These black farm workers, some of them descendants of enslaved Africans, have rightfully sued for racial discrimination.
The Trump administration’s actions are an instructive example of wider efforts to pervert the past and present in order to turn the longstanding beneficiaries of racial domination into “victims”, and vice versa, and recast efforts to address colonial racial injustice as “racial discrimination”.
This is not novel.
In 1962 WEB Du Bois noted a “rather curious change of emphasis” in which newly independent African states seeking to redress the impact of centuries of slavery and colonialism were already being “accused of racism ... of unduly emphasising racial differences”.
“This would be laughable,” Du Bois added, “if it did not have so serious a side.”One can only imagine how Du Bois would have responded to the claim by the US government that white South Africans — the beneficiaries of one of the most comprehensive state-based social engineering projects to entrench white supremacy, the ongoing and intractable effects of which are manifest for all who are willing to see — as “victims of unjust racial discrimination”.
When these African states took a leading role in the drafting of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) a couple of years later — to which 182 states have become parties — they foreclosed the possibility of the absurd claim that measures aimed at dismantling white supremacy were themselves “racial discrimination”.
That Convention not only specifically requires its signatories to “prevent, prohibit and eradicate” apartheid; it provides that “affirmative action” or “special measures” aimed at redressing racial domination to ensure “equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination”.
As the UN Committee on the Elimination of Racial Discrimination has subsequently confirmed: “The term ‘non-discrimination’ does not signify the necessity of uniform treatment when there are significant differences in situation between one person or group and another, or, in other words, if there is an objective and reasonable justification for differential treatment. To treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.”
At its core, the US’s policy towards white South African “refugees” is itself blatantly discriminatory on a racial basis. President Trump has shut down all refugee admissions and created a racial exception for white Afrikaners, and recently for the broader category of non-black South Africans. That contravenes the Refugee Convention’s prohibition on applying its provisions on a racial basis.
That the US’s “refugee” determination is intended mostly for white South Africans — and specifically excludes black South Africans — was made explicit by its clarification this week that it applied to members of any “racial minority ... able to demonstrate either a history of persecution or a credible fear of future persecution”. The race-based nature of the US’s policy was already evident when placed in the context of its broader immigration policy, which has systematically denied refugee status or rights to “non-white” peoples around the world, and unlawfully deported those already in America.
As Du Bois cautioned, however, it would be a mistake to isolate these developments as “sins and mistakes of ... small localities or single individuals”. White supremacy is and has always been global and transnational, and it remains a feature of international mobility and migration. Whether through discriminatory visa and immigration regimes or through racial profiling in immigration enforcement — a practice that is a ubiquitous feature of border governance — to travel internationally as a black African is to be presumptively suspicious.
Similarly, it is a mistake to disconnect these developments from the international economic order in which, as Du Bois put it, the West is “still determined to base its culture and comfort on the underpaid labour and virtual theft of land and materials by white investors”.
Recall that the Afrikaner “refugee” debacle was triggered in part by South Africa’s long-overdue efforts to begin to address the land question (or at least signal its willingness to do so) through the adoption of the Expropriation Act. An expression of African sovereignty that cannot be divorced from the second “Scramble for Africa” under way, masquerading as the need for “critical minerals” to transition away from fossil fuels.
All told, by law and in practice the international order continues to enforce distinctions between the mobility of white and black bodies — whether it be as refugees, migrants or otherwise — and to ensure that the majority of the planet’s resources can flow freely across borders (mostly into the West), but the majority of its people cannot — unless they are white. In this sense, the US’s recent actions accent rather than deviate from international norms.
The absurdity of the white South African “refugee” fiasco should not distract us from the urgent task of addressing the injustices of this international order. In doing so we should heed Du Bois’ advice: “So long as this method of business and industry persists, the Africans must fight back. They will not fight the dead past, but the living present.”
- Prof Gevers is the Director of the Centre for Applied Legal Studies and an Associate Professor at Wits Law School.
- Prof Achiume teaches at Stanford Law School and is a former United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance
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