SEVERAL South African academics and former TRC investigators recently informed the Khulumani Support Group that they were approached by defendants in the apartheid lawsuit to enter an amici (friends of the court) brief for them or to testify on their behalf.
These academics rejected the advances, promptly notified Khulumani and reaffirmed their solidarity with the cause of international human rights and justice for victims of gross violations of human rights.
So it did not come as a surprise to Khulumani that some South African academics chose to support the defendants-appellants. In the brief Kader Asmal's credentials as an MP for 13 years and a "minister in Mandela's first democratic government" are highlighted. The defendants scored a major coup!
Asmal's disingenuous response to accusations of having betrayed victims and survivors of apartheid era gross human rights abuse is obfuscatory.
He complains that the case is not being heard in South Africa. But the court asked very narrow questions - whether the Alien Tort Statute (ATS) can be applied to civil as well as criminal cases; and whether the ATS recognises corporate criminal liability under international customary law.
Asmal claims he and his colleagues (including associate professors Max du Plessis and Garth Abraham ) did not take sides - but by accepting the brief from the defendants' lawyers they did exactly that. A letter to the court with the heading: "Filed in Support of Defendants- Appellants..." bears Asmal's signature.
He claims this was in order to preserve and defend our intellectual honesty.
Perhaps it would have been more intellectually honest to critique the questions the court was asking and query whether or not the court was asking the right questions.
It would perhaps have been more intellectually honest to recognise that the lawsuit being considered today is fundamentally different to the one considered by the Mbeki administration in the early 2000s.
The "unsolicited" declaration entered by then justice minister Penwell Maduna made South Africa a poster child for multinational companies and governments seeking to escape liability under the ATS, including the case of the "comfort women" who were victims of Japanese war crimes.
President Jacob Zuma and his cabinet
should be praised for wanting to see a fair resolution of this case.
Cosatu and Numsa are behind this lawsuit and have rejected attempts to be bullied by the multinationals.
The Mbeki administration took nearly five years to reach a decision concerning reparations. The decisions ultimately made were not what the TRC had recommended.
Some of the promises made by Mbeki's administration in March 2003 have to date still not been fulfilled. About R900million remains in the President's Fund - money dedicated to "victim empowerment" and community reparations. The least said about the TRC Unit - created to take forward the "unfinished business of the TRC" - the better.
Although Asmal says his heart goes out to the plaintiffs, there is no track record of him advocating for victims and survivors of apartheid-era abuses .
During apartheid some of the gross violations of moral decency occurred by narrowly following apartheid legislation. Asmal stated that, on behalf of the defendants, he and his colleagues only "... appl(ied) strenuous, straightforward legal analysis to the legal questions at issue".
This same positivist stance was used to justify the morally reprehensible Group Areas Act and other apartheid legislation.
That customary international law does not make the question of corporate criminal or civil liability explicit is most likely a result of corporations choosing to settle before going to court. In other words, just because no corporations have yet been held liable shouldn't mean that they can't be.
The case addresses specific violations by international corporations which knowingly aided and abetted the apartheid security forces to kill, maim and torture South Africans; and the relevant apartheid government department(s) to "denationalise" citizens. Therefore as a proposed class action lawsuit, redress could accrue to all affected South Africans, not just the 58000 Khulumani members.
This is very different, if we are to be intellectually honest, to the broad brushstrokes of the "legacy of apartheid".
For the good professor and his friends, the brief they entered might make for an interesting academic squabble.
For victims of apartheid and other victims globally, the consequences of a judgment by the New York court that corporations cannot be held liable in international customary law, could well lead to further gross violations of human rights by immoral corporations.
- The writers are Khulumani advocacy coordinator and national director, respectively.