In Re South Africa Apartheid Litigation: Corporate Complicity in Apartheid Atrocities

           Background

The claims In Re South Africa Apartheid litigation arose in 2002 following the alleged involvement of 5 major multinational corporations in gross Human Rights violations during the Apartheid era in South Africa. Mr Ntsebeza, a black South African national, along with a host of other claimants brought a class-action lawsuit in the United States alleging that Ford, Barclays, IBM, General Motors and German automotive manufacturer Daimler GM not only knowingly conducted business in South Africa during the apartheid regime, but worse, that they provided direct assistance to and acted in accordance with the South African government and security forces during their brutal oppression of blacks and other minorities over the course of Apartheid.

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The claimants alleged that Ford, General Motors and Daimler GM manufactured vehicles which were used by the South African security forces to violently suppress opposition to apartheid and inflict wide spread atrocities amongst the black civilian population. These companies, who owned a multitude of factories and plants in South Africa during Apartheid, were also accused of callously retaliating against employees who were found to be participating in the anti-apartheid movement, through such means as, unfair dismissals, intimidation and even assisting with unlawful detentions and torture in collaboration with the apartheid authorities. The corporations were also accused of providing de facto support to the apartheid regime by implementing segregation within their own facilities and grossly underpaying blacks for equal work. 

IBM were accused of actively assisting the Apartheid state by producing race-based identification documents  which were used by the authorities to greatly restrict the movement of blacks around South Africa. These documents also allowed the authorities to implement a meticulous geographic separation of the races, whereby blacks were forced into remote and dilapidated shanty towns known as ‘Bantustans’ and obligated to live there as ‘Bantus’ deprived entirely of South African nationality and any of the corresponding rights of such citizenship. 

Barclays

Barclays were accused of participating and assisting in the geographic separation of the races by refusing black employees the opportunity to work in, or be transferred to branches in predominantly white areas. This practice was not mandatory under South African law at the time and thus Barclays were accused, of providing de facto support to the apartheid regime through the implementation of such policies. 

The Defendant companies rejected the legal culpability for their actions but never denied their involvement in apartheid in the ways advanced by the claimants.

Claims in United States

As the Republic of South Africa was originally opposed to the litigation, the claimants elected to bring their action in the United States, alleging that the corporations concerned had all aided and abetted gross human rights violations, which was an actionable offence under the Alien Tort Statute (ATS) . The ATS is an old piece of US legislation which grants United States courts original jurisdiction over  ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States‘. In other words, the ATS potentially allows for a foreign claimant (a non-national and non-resident of the US) to sue a foreign defendant (also a non-national and non-resident of the US) in a United States court for gross Human Rights violations, irrespective of where these violations occurred. The ATS has been instrumental in allowing many individuals whose human rights have been violated but whom, for a variety of reasons, were not able to obtain any redress in the place where these abuses occurred, to recover damages by bringing claims in the United States.

Supreme_Court_US_2009The District Court dismissed the claims in 2004, holding that aiding and abetting was not a viable cause of action under the ATS. In 2007, the Court of Appeals for the Second Circuit reversed the decision of the lower court, holding that aiding and abetting was actionable under the ATS and remanded the case back to the District Court for further hearing. The defendant companies then appealed to the Supreme Court of the United States, asking the Court to rule definitively on the issue. 

Lack of Quorum in the Supreme Court

In an extraordinary turn of events, the Supreme Court declared that it would not be able to hear the appeal, due to the fact that 4 of the 9 Justices on the Court had to withdraw from proceedings based on their financial and personal interests in the companies involved. The Court thus lacked the required Quorum (6 Justices) it needed to hear a case and was subsequently forced to affirm the ruling of the Second Circuit Court of Appeal without declaring it binding precedent.  The claims against the corporations were thus able to proceed.

Impact of Kiobel v Shell

On 17 April 2013 the Supreme Court handed down its judgement in the eagerly anticipated case of Kiobel v Shell.  This was a case concerning a number of Nigerian nationals, who were suing the Anglo-Dutch company Shell for its alleged complicity in torture, rape and the extra-judicial killing of activists in the Ogoni region of Nigeria. The claimants could not bring the claims in Nigeria, because they feared reprisals from powerful elements within the Nigerian Government and military, who they claim had been heavily involved in the abuses. For this reason they too, like the claimants in the In Re Apartheid cases, sought to rely on the ATS to bring their claims against Shell in the United States.

 The central questions for the judges in Kiobel were whether or not:

1.    The ATS applied extra-territorially to foreign defendants operating outside the US.

2.    Corporations could be sued for violations of International Law.

The Court considered that the issue of paramount importance was the primary question and so re-heard the case based on this question alone.

In a unanimous decision, the court ruled that there was no definitive proof that the ATS was ever enacted to allow foreign claimants to sue foreign defendants in US courts for harms that occurred outside of the US. The decision of the judges was very much alive to the diplomatic burdens that it would place on the United States to allow harms occurring in other people’s countries to be brought before their Courts. For some, the ruling was a victory for US foreign relations but for others, particularly those who have pushed for the universal enforceability of human rights norms, the decision was a major setback which could ultimately provide carte blanche for corporations to continue to commit human rights violations abroad whilst providing no redress to victims.

After Kiobel

The Kiobel decision has had a dramatic impact on the ensuing success of the claims in the In Re Apartheid litigation. In August 2013 The Second Circuit Court of Appeals remanded the case back down to the lower courts suggesting that the claims be dismissed in light of the Kiobel ruling. General Motors reached an earlier settlement with the plaintiffs, however, on 26 December 2013 the court of first instance held that, the claims against Daimler did not ‘touch and concern’ the US with sufficient force to rebut the presumption against extraterritoriality applied in Kiobel and thus had to be dismissed. The claims against IBM and Ford, the two remaining plaintiffs, were however not dismissed. The court instead asked the parties to produce briefs on the question of whether corporations may be liable for breaches of International Law – which was the original, unanswered question in the Kiobel v Shell case. This leaves open the possibility for corporate liability for human rights violations abroad, however, whether or not other courts and perhaps ultimately the Supreme Court, will answer this question in the affirmative remains to be seen.

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