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South Africa: Apartheid Reparations Update
AfricaFocus Bulletin
Aug 19 2004 (040819)
(Reposted from sources cited below)
Editor's Note
Reparations for historical crimes against humanity, such as the
centuries-long slave trade, slavery itself, and the more recent
apartheid system in South Africa, are not currently on the agenda
for governments preoccupied with more immediate goals. But the
issues raised will not go away, as long as the deep inequalities
and injustices that these crimes produced continue to exist.
Whether in South Africa, the U.S., or globally, the past is in fact
not yet past.
In recent years reparations activists have turned to the courts to
raise the issue. This AfricaFocus Bulletin contains an update and
call for support from the Apartheid Debt and Reparations Campaign
in South Africa, on the suit by the Khulumani group of victims of
apartheid. For earlier background on the apartheid debt and
reparations cases, see
http://www.africaaction.org/docs03/rep0302.htm
http://www.africaaction.org/docs02/adr0211a.htm
http://www.africaaction.org/docs02/adr0211b.htm
http://www.africaaction.org/docs98/debt9807.htm
For additional details on the case, see in particular
http://www.cmht.com/casewatch/humanrights/apartheid.html
For a serious of short articles linking the issues of reparations,
apartheid debt, and the debt crisis of other African countries, see
http://www.afsc.org/africa-debt
The most comprehensive statement of the legal case for reparations,
in a global context, is a paper presented to the First Pan-African
Conference on Reparations in Abuja, Nigeria in 1993, available at
http://www.arm.arc.co.uk/legalBasis.html. The conference declaration
is at http://www.arm.arc.co.uk/abujaProclamation.html.
For resources on the reparations issue in the U.S., see
http://www.ncobra.org/resources.htm
++++++++++++++++++++++end editor's note+++++++++++++++++++++++
Announcements
(1) The University of KwaZulu-Natal is hosting an international
conference on October 10-13 on the role of the international antiapartheid
movement in South Africa's freedom struggle. Participants
in panels over the multi-day international event will include
activists, academics, and current policymakers, and topics of
debate will include both the history and future prospects for
solidarity. Details on registration and accommodations are
available now on the conference website. The program agenda is
scheduled to be posted there shortly. See
http://www.ukzn.ac.za/aam2004
(2) AfricaFocus Bulletin is taking a publication break for the next
two weeks. Publication will resume in the second week of September.
For references to current news as well as background, you can
always consult the AfricaFocus website. Past bulletins organized by
topic are available at the following links:
http://www.africafocus.org/econexp.php
http://www.africafocus.org/polexp.php
http://www.africafocus.org/peaceexp.php
http://www.africafocus.org/healthexp.php
Apartheid Debt and Reparations Update
Apartheid Debt and Reparations Campaign
12th Floor East Wing, Auckland House, 185 Smit Street.
P.O. Box 31082, Braamfontein 2017, South Africa
Tel. +27 11 403 7624/22; Fax. + 27 11 339 4560
E-mail: lizj@sn.apc.org; j2000sec@sn.apc.org
13th July 2004
To: Partners, solidarity organisations and supportive individuals:
Re: Support for the Khulumani lawsuit / Sign on to an Amicus
Curiae brief
The Apartheid Debt and Reparations task team of Jubilee South
Africa, would like to ask for your consideration in joining us in
an unprecedented opportunity to advance the cause of human rights
worldwide by signing on to an amicus curiae brief in support of the
Khulumani lawsuit in the United States. Recently, a number of
multinational corporations, supported by the American and British
governments, requested the United States Supreme Court not to allow
foreigners to file lawsuits in America for human rights violations
committed elsewhere in the world. They used the case of Sosa v
Alverez to suggest to the United States Supreme Court that the
Alien Tort Claims Act (ATCA) or the Alien Tort Statute (ATS) as it
is generally referred to, cannot and should not be used for the
purpose of human rights abuse. At present, a number of such cases
brought under the Alien Tort Claims Act (ATCA), of which the
Khulumani lawsuit is one, are pending before various courts in the
United States for human rights abuses committed by multinational
corporations in various parts of the world such as Burma, Nigeria,
Indonesia and South Africa.
1. Victory for human rights globally
However, on 29 June 2004 the United States Supreme Court in the
case of Sosa v Alverez held that foreigners could use the Alien
Tort Claims Act (ATCA) to institute lawsuits in the United States
for human rights abuses wherever they may be committed in the
world. The Court held that "today the door is open to a narrow
class of international norms" for litigants to institute lawsuits
under the Alien Tort Claims Act (ATCA). The Court observed that "it
would take some explaining to say now that federal courts must
avert their gaze entirely from any international norm intended to
protect individuals." The Supreme Court held that "Section 1350 was
enacted on the congressional understanding that courts would
exercise jurisdiction by entertaining some common law claims
derived from the law of nations" and "there is every reason to
suppose that the First Congress did not pass the ATS as a
jurisdictional convenience to be placed on the shelf for use by a
future Congress or state legislature that might, some day,
authorize the creation of causes of action or itself decide to make
some element of the law of nations actionable. . . the reasonable
inference from the historical materials is that the statute was
intended to have a practical effect the moment it became law." The
court further held that "courts should require any claim based on
the present-day law of nations to rest on a norm of international
character" defined with specificity and that claims "must be gauged
against the current state of international law, looking to those
sources we have long, albeit cautiously, recognized."
This has been a great setback for the US and British governments as
well some of the world's biggest multinationals. The decision comes
at a time when the US Supreme Court also held that detainees at
Guantanamo Bay are entitled to challenge the legality of the
detention of foreign nationals captured abroad in connection with
hostilities. A further advance for international human rights was
the decision of the International Court of Justice (ICJ) in The
Hague on Thursday, 9 July 2004 when it held that the wall erected
by Israel is in violation of international law and that
Palestinians are entitled to reparations. It is these advances in
international human rights that the Khulumani lawsuit seeks to
protect and advance.
2. The Khulumani lawsuit seeks to advance international human
rights
On 11 November 2002 the Khulumani Support Group, a South African
support organization instituted a lawsuit against 23 multinational
corporations for their role in human rights abuses committed in
South Africa at the time of Apartheid. The suit was brought under
the Alien Tort Claims Act (ATCA) on behalf of Khulumani and its
members for those who had murdered, tortured, raped, those who
disappeared and were unlawfully detained for long periods because
of their opposition to Apartheid. The corporations named as
defendants supplied the financing, technology, transportation, oil,
and arms, without which the crimes of Apartheid would not have
occurred the way they did without their participation. The victims
seek to hold the multinationals accountable for their
participation, achieving restitution and a measure of justice for
their injuries. The principle the Khulumani lawsuits seeks to
advance is to have a rule of law recognized universally condemning
Apartheid, genocide, official torture, rape, disappearances,
prolonged arbitrary detention, slavery, human trafficking and
crimes against humanity. Such morally reprehensible conduct would
be illegal. There would be a globally defined set of norms, which,
if broken, would expose the transgressor to criminal and civil
prosecution. There would be a means to enforce and deter conduct
which offends all of humankind, and an ability to redress the
injury to society as well as the injury for the individuals abused.
In essence, there would be a principle which legally obligated
nations and multinational corporations to respect the sanctity of
basic human rights and conform their behaviour accordingly.
3. Corporations and governments seek to stop the Khulumani
lawsuit
However, the corporations against whom the lawsuit was filed have
invested all their efforts to defeat the legal right of victims of
Apartheid abuses to hold them accountable for their responsibility
in furthering and contributing to those crimes. With the support of
the American and British governments, these corporations have
advised the American court that recognizing such a principle would
supposedly infringe upon the sovereignty of nations and interfere
with the business of free trade. They have drawn the lines of
confrontation between the interests of unrestrained governments and
corporations and the right of respect for basic human rights and
dignity.
The corporations' motion to dismiss the Khulumani and other
Apartheid lawsuits have suffered a huge blow in the face of the
Supreme Court decision in the case of Sosa v. Alvarez-Machain. Even
though the court held that the brief detention alleged by Dr.
Alvarez-Machain did not rise to the level of a violation of a
specific, binding norm of international law, ("a single illegal
detention of less than a day, followed by the transfer of custody
to lawful authorities and a prompt arraignment, violates no norm of
customary international law so well defined as to support the
creation of a federal remedy"), the Plaintiffs in the Khulumani
lawsuit have alleged violations of norms of international character
defined with specificity: extrajudicial killing, torture, sexual
assault in connection with other torture, prolonged arbitrary
detention, and crimes against humanity.
However, the US Supreme Court cautioned that the right to civil
relief must be balanced by the domestic policy interests of the
foreign nations in which the conduct occurred and the foreign
policy concerns of the United States. Regrettably though, in a
footnote in the judgment, the US Supreme Court referred to the
declaration submitted by the former South African Minister of
Justice and Constitutional Development, Dr. Penuell Mpapa Maduna,
submitted to a district court where the Khulumani and other
Apartheid cases are pending as an instance where the caution should
be applied. The declaration expressed the South African
government's concern that the cases before the court would
interfere with the policy embodied in the Truth and Reconciliation
Commission. The South African government has specifically asked the
court to abstain from adjudicating the victims claims in deference
to its paramount national interests.
The Supreme Court did not have before it the facts of the Khulumani
litigation. The litigation names as defendants only companies that
refused to participate in the TRC process and thus poses no
conflict with the policy embodied in the TRC. In fact, the
Khulumani plaintiffs filed a declaration from TRC Commissioner
Yasmin Sooka calling the Khulumani litigation "important" in light
of the TRC findings and stating "I believe that the Khulumani
litigation does not pose any conflicts with the TRC Act or any
South African law and that the relief sought by the Khulumani
litigants are consistent with the finding of the TRC." Commissioner
Sooka concludes, "the failure of these corporations to be held
accountable for their crimes of aiding and abetting a criminal
enterprise such as Apartheid creates a huge block in deterring and
preventing future violations of crimes against humanity."
Nobel Prize winner Archbishop Desmond Tutu also filed a declaration
stating that "it was never contemplated by the TRC that victims of
Apartheid would be precluded from seeking compensation through the
ordinary civil process-except of course, to the extent that the
perpetrator involved had been granted amnesty with respect to the
wrong." Archbishop Tutu notes that "the obtaining of compensation
for victims of Apartheid, to supplement the very modest amount per
victim to be awarded as reparations under the TRC process, could
promote reconciliation, by addressing the needs of those Apartheid
victims dissatisfied with the small monetary value of TRC
reparations."
Moreover, the TRC's Final Report clearly illustrates that the
Khulumani litigation poses no conflict with South Africa law or
policy: "Business failed in the hearings to take responsibility for
its involvement in state security initiatives specifically designed
to sustain Apartheid rule..." "It is also possible to argue that
banks that gave financial support to the Apartheid state were
accomplices to a criminal government that consistently violated
international law." "The recognition and finding by the
international community that Apartheid was a crime against humanity
has important consequences for the victims of Apartheid. Their
right to reparation is acknowledged and can be enforced in terms of
international law."
President Mbeki himself, in his Statement to the National Houses of
Parliament and the Nation at the Tabling of the Report of the Truth
and Reconciliation Commission, stated that "there shall be no
general amnesty" for those who did not participate in the TRC
process and that "this approach leaves open the possibility for
individual citizens to take up any grievances related to human
rights violations with the courts." While he also stated that the
South African government is not and will not be a party to
litigation against corporations that benefited from the Apartheid
system, he noted that "the Government recognizes the right of
citizens to institute legal action."
4. Difference between the Khulumani and other Apartheid lawsuits
The Khulumani lawsuit does not seek to interfere with the
sovereignty of the democratically elected government of South
Africa. To the contrary, it is aimed at strengthening the very
constitutional democracy that has emerged in South Africa since
1994. It would appear that the Maduna declaration was essentially
submitted in response to claims which other Apartheid lawsuits
sought to promote. The Maduna letter focused on four principal
concerns with the non-Khulumani litigation. First, it was noted
that the other litigation appeared to suggest the present South
African government had done "little or nothing about redressing the
ravages of the Apartheid system, a claim not advanced by the
Khulumani litigation. Second, because of the extremely wide-ranging
forms of relief requested for a class of members of South Africans
from 1946 to 1994, it "made little sense" for the government to
support litigation which in effect, sought to "set up the claimants
as a surrogate government." The Khulumani case only represents a
small group of victims that suffered the above abuses under
Apartheid. Third, the other litigation according to the government
attempted to undermine South African sovereignty by naming as
defendants South African companies. No South African companies are
named in the Khulumani lawsuit. Fourth, the remedies demanded in
the other suits requested, among other things, the institution of
affirmative action programmes throughout the South African economy
and the total restructuring of the South African educational
system. Those requests, the government noted, were inconsistent
with South Africa's approach to achieving its own long term goals.
None of the overbroad demands of these suits, as detailed in the
Maduna letter, apply to the Khulumani litigation. Additionally,
while the non-Khulumani Apartheid cases sought recovery for
employment discrimination and other harms, the Khulumani litigation
concentrated on those norms traditionally recognized as violations
of customary international law in the human rights field.
5. Support the Khulumani lawsuit
If the reasons advanced by the South African government should be
applied to the Khulumani lawsuit, it would effectively jeopardize
the advancement of that narrow class of international norms which
the Sosa case opened the door for. The South African government's
declaration could effectively shut the door not only for claims for
Apartheid, but for all human rights claims brought under the law of
nations. Other countries, where abuses have and continue to take
place could effectively file similar declarations with the court
making it impossible for human rights cases to be adjudicated. Thus
the entire opening created by the decision in Sosa is jeopardized,
in our opinion, should the district court accept the South African
government's declaration in the Khulumani litigation.
Consequently, we urge your consideration to supporting the notion
that the Sosa decision offers a real opportunity to have national
judicial systems acknowledge the supremacy and universality of a
rule of law obligating adherence to behaviour which respects basic
human dignity. We believe the Khulumani litigation is one of the
strongest fact patterns on which to build this new global principle
which would be binding on nations, national leaders and
multinational corporations. Please join us in the effort to elevate
human rights as a meaningful counterbalance to the exercise of
abusive power by signing on to the amicus brief included herewith
or which will follow shortly.
Should you require any further information please do not hesitate
to contact the following organizations:
Jubilee South Africa, c/o Makoma Lekalakala,
makoma-j2000@sn.apc.org Tel +27-11-403 7622
Khulumani Support Group, c/o Marjorie Jobson, mrjobson@lantic.net
Tel +27-82-268-0223
Abrahams Kiewitz Attorneys, c/o Charles Abrahams,
ak-law@iafrica.com Tel +27-21-934-4842
Cohen Milstein Hausfeld & Toll, c/o Angela Wallis, AWallis@CMHT.com
Tel +91-202- 408- 4600
This letter was prepared by our legal team - Charles Abrahams based
in South Africa and Michael Hausfeld based in the United States of
America.
We look forward to your solidarity and support.
Yours sincerely
M.P. Giyose, National Chairperson
Alvin Anthony, National Co-ordinator
Patrons: Prof Fatima Meer; Archbishop Njongonkulu Ndungane; Ms
Yasmin Sooka; Bishop Mvume Dandala; Chief Rabbi Cyril Harris;
Moulana Faried Esack; Archbishop Buti Tlhagale; Dr Barney Pityana;
Rev. Charity Majiza; Dr Beyers Naude; Adv. Rams Ramashia; Ms Sheena
Duncan; Dr Molefe Tsele; Bishop Kevin Dowling; Prof Dennis Brutus;
Rev. Peter Grove; Mr Don Mattera; Ms Graca Machel; Adv. Dumisa
Ntsebeza
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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