Apartheid, Reparations and the United States Courts
Recently South African Professors John Dugard and Kader Asmal have been in the news for their opinions for and against the Khulumani litigation currently before the US Court of Appeals in New York. That litigation involves claims on behalf of apartheid victims for reparations from corporate defendants; the argument being that the defendants, as companies, traded with the apartheid regime and thereby facilitated the crime against humanity of apartheid.
Max du Plessis, Senior Research Associate, ICAP, ISS; Associate Professor, Faculty of Law, University of KwaZulu-Natal, Durban*
Recently South African Professors John Dugard and Kader Asmal have
been in the news for their opinions for and against the Khulumani
litigation currently before the US Court of Appeals in New York. That
litigation involves claims on behalf of apartheid victims for
reparations from corporate defendants; the argument being that the
defendants, as companies, traded with the apartheid regime and thereby
facilitated the crime against humanity of apartheid.
The litigation has been brought under the Alien Tort Statute (ATS) –
a one-line American statute dating from 1789. It allows an alien to
sue in American federal courts for a “tort only in violation of the law
of nations or a treaty of the United States”. In the late 1700s only
three violations of the law of nations existed: piracy, infringements
of safe conduct and violations of the rights of ambassadors.
The ATS was not used for 170 years. It was used briefly in the
middle of the 20th century, fell out of favour, and was revived in the
1980s so that state agents could be sued for torture. Recently,
attempts have been made to use it to sue corporations for violations of
international law. Due to its wording, parties which have no link to
the U.S. have sought to sue parties for violations of customary
international law which also have no link to the U.S. The apartheid
victims are thus suing various corporations under the ATS for having
aided and abetted the apartheid government.
In the course of the litigation, the United States Court of Appeals
in New York of its own accord on 4 December 2009 invited assistance on
the following narrow question:
As international law determines the scope of liability under the
ATS, what do sources of international law evince with respect to
whether customary international law recognises corporate criminal
liability?
Various professors from around the world have attempted to assist
the Court by positing an answer. Media attention in South Africa has
focused on the fact that Professor John Dugard has appended his name to
an opinion in support of holding corporations liable, while Professor
Kader Asmal’s name appears on an opinion which argues that corporations
cannot currently be held liable under customary international law.
Professor Asmal has drawn strident and public criticism for his
apparent “siding” with corporations; and he has responded in his
personal capacity (see his article in the Cape Times (Why I Oppose the
Lawsuits Against the Multinationals, January 14, 2009). It should be
stressed that the question asked by the Court is a narrow one: whether
corporations can be held liable in American courts for the criminal act
of supporting apartheid in violation of customary international law
under the ATS.
The answer given by Dugard and others is that jurisdictions around
the world now accept the principle of corporate criminal liability, in
one form or another. The classic civil law doctrine, that only
individuals may be criminally responsible, is now outmoded, they say,
and, moreover, many international treaties envisage corporate
liability. The argument continues that numerous experts in the field
insist that corporations should not be permitted to flout human rights
laws with impunity. Their conclusion is that “‘the general principles
of law recognised by civilised nations’, international instruments
[including various Security Council Resolutions], and customary
international law, all recognise corporate responsibility in
principle”.
Asmal and his colleagues contend on the opposite side that customary
international law is comprised of rules that “states universally abide
by, or accede to, … out of a sense of legal obligation and mutual
concern”, and that no “specific, universal and obligatory” rule can be
discerned in relation to liability of corporations for criminal acts.
Drawing on various sources, including an opinion by Professor James
Crawford of Cambridge University, they come to the conclusion that no
international court or tribunal has ever found a corporation liable
criminally or civilly for a breach of international law. And they argue
that even if such a rule were by now developed, it could not be
applied retrospectively. That is because during apartheid, no rule of
customary international law existed which would have incurred criminal
or civil responsibility for corporations that aided and abetted the
South African government.
Because the case has been brought in the U.S relying on the ATS, the
plaintiffs have to convince U.S. appellate judges – perhaps eventually
even the U.S. Supreme Court – that corporations can be held liable in
terms of customary international law. That narrow question has become
central to the litigation, hence the New York Court’s request for
assistance from international scholars such as Dugard and Asmal – and
understandably why Asmal’s opinion has drawn such fire from Khulumani
and its supporters. What remains of course is for the judges to decide
the issue dispassionately and objectively after considering all the
views for and against.
*The writer was one of the professors that joined Professor Asmal in providing an opinion to the US Court of Appeals.
