Apartheid, Reparations and the United States Courts

25th January 2010 By: ISS, Institute for Security Studies

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.

Written by: Max du Plessis, Senior Research Associate, ICAP, ISS; Associate Professor, Faculty of Law, University of KwaZulu-Natal, Durban
The writer was one of the professors that joined Professor Asmal in providing an opinion to the US Court of Appeals.