[Marxism] Forwarded from Patrick Bond

Louis Proyect lnp3 at panix.com
Fri Jul 23 10:50:19 MDT 2004

Hello from Johannesburg,

Should capitalists who profited handsomely from South Africa's 
racist/sexist apartheid system pay back the victims? Should we, in the 
process, teach big corporations that they will pay a price for 
supporting undemocratic, oppressive regimes?

A very important case is being heard in the (ordinarily quite hopeless) 
US courts, for which friends of the court are sought by South Africans 
trying to establish an international precedent. The targets are 
corporations and banks that profited from apartheid; the plaintiffs 
include Jubilee South Africa and the Khulumani apartheid-victims' 
support group. These are excellent social movements which deserve our 
respect and solidarity.

After a June 29 US Supreme Court ruling, the plaintiffs' lawyers are 
optimistic. Please read the information below; if you have queries I can 
help with, please write (pbond at sn.apc.org), but the real experts -- 
activists and lawyers who are working on an urgent basis -- are also 
reached via email and phone/fax contact information at the end of this note.

Please do sign on, and *pass this on to your listserves* too, and if all 
goes well, we'll be making a bit of anti-corporate history.

Cheers, Patrick (Patrick Bond, Professor, Graduate School of Public and 
Development Management, University of the Witwatersrand)

----- Original Message -----

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 at sn.apc.org j2000sec at 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 g overnments, 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 

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 at sn.apc.org Tel 
+27-11-403 7622

Khulumani Support Group, c/o Marjorie Jobson, mrjobson at lantic.net Tel 

Abrahams Kiewitz Attorneys, c/o Charles Abrahams, ak-law at iafrica.com Tel 

Cohen Milstein Hausfeld & Toll, c/o Angela Wallis, AWallis at 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 Statesof America.

We look forward to your solidarity and support.

Yours sincerely

M.P. Giyose Alvin Anthony National Chairperson National Co-ordinator


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