South Africa: Apartheid Reparations Update, 08/19/04

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, and 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

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Announcements

1. The University of KwaZulu-Natal is hosting an international conference on October 10-13 on the role of the international anti- apartheid 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 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

South Africa: Apartheid Reparations Update

Page Editor: Ali B. Ali-Dinar, Ph.D.