Professor Asmal's disingenuous response to being considered to have betrayed comrades (victims and survivors of apartheid era gross human rights) in the South African Apartheid Litigation (formerly known as Khulumani et al vs Barclays et al) is obfuscatory.
Professor Asmal complains that the case is not being heard in South Africa. That however has nothing to do with the question being asked by the court. The court asked very narrow questions - whether the Alien Tort Statute (ATS) can be applied to civil as well as to criminal cases; and whether the ATS recognises corporate criminal liability under international customary law.
Professor Asmal claims he and his co-professors did not take sides - but by accepting the brief from the defendants' (corporations') lawyers he was in fact taking sides. His signature appears on a letter to the court with the heading: 'Filed in Support of Defendants-Appellants . . .'. To the best of our knowledge neither he nor any of his co-signatories, was approached directly by the court for his (or his colleagues') opinion. The questions could have been answered by anyone with adequate experience or qualifications who chose to submit a response. Professor Asmal chose to submit a response at the request of the defendants' lawyers. He claims that 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. His defensive responses carry familiar echoes of the 'intellectualism' of the previous administration.
It would perhaps have been more intellectually honest to recognise that the lawsuit being considered today is fundamentally different to the one 'very carefully' considered by the Mbeki administration in the early 2000s. It remains Khulumani's suspicion that government's response at that time was intended to try to offset the unfortunate antics, wild claims and media hype created by now disbarred US lawyer Ed Fagan, around a very different lawsuit than that presently under consideration.
The unfortunate reality is that the Mbeki administration (of which Professor Asmal was a senior member) took nearly five years to reach a decision (following submission of the final report of the Truth and Reconciliation Commission (TRC)) concerning reparations for the 'identified' victims and survivors of apartheid gross human rights abuses and violations. The decisions ultimately made by that administration were not what the TRC recommended. Some of the promises made in April 2003 have to date still not been fulfilled.
Although Professor Asmal states that his heart goes out to the plaintiffs, there is no track record of him advocating for victims and survivors of apartheid-era gross human rights abuses in all these intervening years. He did stand up against the dismantling of the Scorpions and he was scathing about the dishonesty of the 'Travelgate' MPs. But he has not made a stand for the people who publicly shared their painful stories at the TRC about being tortured, shot indiscriminately, having close relatives disappear and being murdered, being in prolonged solitary detention without trial, and being raped by security agents. These contributions of victims and survivors formed an integral part of helping South Africa as a whole begin to come to terms with its past.
In the Helen Joseph Memorial Lecture delivered by Professor Asmal at the University of Johannesburg on 28 October 2008, he said: ' . . . we have not done nearly enough to rebuild the damaged structures of morality - perhaps the most serious of the many wounds inflicted on our country by apartheid.' And although the context is different, a select group of victims and survivors was exploited to ensure that the TRC was credible, successful and a model for the whole world. These victims and survivors were then (immorally) cast aside, and have virtually disappeared from the consciousness of government and society. An example is the family of the assassinated Dr Fabian and Mrs Florence Ribeiro, (sister of Mr Robert Sobukwe) both gunned down at their Mamelodi home, with devastating consequences for those descendants who continue to struggle to meet their daily living costs.
In that speech, Professor Asmal said: 'We need to speak out, act and ensure that our own words and deeds contribute to the rejuvenation of the values of ethics and morality that propelled many of us to wage the struggle for our country's liberation.' However, by choosing to align himself with the defendants in the New York court on 11 January, 2010, we believe Professor Asmal has failed to contribute to the rejuvenation of the ethics and morality that under-girded the struggle.
Professor Asmal has also stated that: 'We know that law as such is no guarantee of moral goodness; indeed, that it can be the instrument of the grossest violations of moral decency.' During apartheid some of the grossest violations of moral decency occurred by narrowly following apartheid legislation. Professor Asmal and his colleagues would apparently like us to think that they, on behalf of the defendants, only '. . . appl[ied] strenuous, straightforward legal analysis to the legal questions at issue' and merely answered a narrow legal question posed by a court of law.
That customary international law does not make the question of corporate criminal or civil liability explicit (it also does not make explicit that corporations cannot be held liable), is most likely a result of corporations choosing to settle before actually going to court. In other words, just because no corporations have yet been held liable, shouldn't necessarily mean that they can't be.
There was clearly no consideration of moral decency or the possibility that the wrong legal questions (in the context of the case) were being asked. Professor Asmal has been reported as stating that to interpret his decision to align himself with the corporations as an abandonment of his struggle comrades is 'disgusting'.
However it is rather the failure of society (and in particular, government) to be accountable to the victims and survivors of apartheid gross human rights violations that is disgusting.
Government failed to implement adequate reparations, despite victims giving up their civil rights when amnesty was granted. The TRC Act (and the TRC itself) failed to link amnesty with some form of redress for the victims (even if minimal and symbolic). Society as a whole has mostly forgotten those who suffered the worst abuses at the hands of the apartheid regime and its security forces.
We agree that the legacy of apartheid is at the heart of the South African identity. However, the lawsuit would clearly not be addressing the whole 'legacy of apartheid' and 'who should be held accountable to whom'; as Professor Asmal implies. The case would be addressing specific violations by international corporations who knowingly aided and abetted the apartheid security forces to kill, maim and torture South African citizens; and the relevant apartheid government department(s) to 'denationalise' South African citizens. This is a very different scenario, if we are to be intellectually honest, than the broad brushstrokes of the 'legacy of apartheid'.
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 amoral and immoral corporations globally. On the other hand, should the New York court could find that corporations can be held responsible for their criminal actions and civilly liable, a new era in international customary law will have begun. It would mean that in fact, corporations do have moral agency and can and should be held liable for their past actions if found guilty.
To those of us whom Professor Asmal designates as not having 'an understanding of the law', it is common sense (and morally correct) that if international corporations have committed crimes, they should be held accountable and liable. Khulumani believes that the corporations should be held accountable and liable in the place where it 'hurts' the corporations most - in the United States of America. A South African court reaching this decision would presumably not have jurisdiction over the foreign headquarters of the charged corporations, and the case would not have the same international impact. The issue of 'potential compensation amounts' was not the main driver of the decision to file the claims in the USA, as surmised by Professor Asmal. In fact, although Khulumani has not paid its lawyers in the case, Khulumani's costs to date have been enormous.
The 2008 Helen Joseph Lecture included Professor Asmal's paraphrasing of John Quincy Adams, the sixth President of the United States as follows: 'Always adhere to the highest standards of ethics and moral conduct in public life, though you may stand alone, and you may cherish the sweetest reflection that your principles are never lost.'
Khulumani regrets that Professor Asmal has seemingly not considered the highest standards of ethics and moral conduct in aligning himself with corporations who knowingly aided and abetted the apartheid regime in oppressing its citizens, and we regret that he has seemingly not had the courage to 'stand alone' in support of his struggle comrades.
At the Helen Joseph Memorial Lecture Professor Asmal summarised the late Justice Mohamed by saying that in South Africa, our constitutional justification should be unequivocally aspirational,
future-bound, preserving from the past only that which is justifiable. Professor Asmal added that '. . . while this style of reasoning, of justification, may seem especially suited to South Africa. I would suggest that it is fitting for much of the world as well.'
Perhaps if Professor Asmal were to take his own words to heart, he would be more prepared to 'preserve from the past only that which is justifiable' and bring an 'aspirational, future bound' perspective to international customary law. There is certainly no justification to not hold corporations criminally and civilly liable and responsible for knowingly aiding and abetting (being accomplices to) apartheid era gross human rights violations and abuses, just because no international precedent can be found.
In fact, it's an opportunity for South Africans to show themselves to be world leaders yet again.
Marjorie Jobson, National Director, Khulumani Support Group