On Tuesday, 21 August 2013, the 2nd Circuit Court of Appeal dismissed the South Africa Apartheid Lawsuit. The basis of the dismissal was the argument that “the Alien Tort Statute does not reach the extraterritorial conduct in this case”, a judgment of the US Supreme Court of Appeals in the Kiobel v Royal Dutch Petroleum Co. case, handed down in April 2013. After the Kiobel judgment, US-based companies may no longer be held accountable for human rights violations that did not take place within the United States.
The dismissal comes more than ten years after the cases were first filed in a New York District Court in November 2002. The South Africa Apartheid Litigation sued corporations with significant US-based operations, for their direct support to the apartheid security agencies. These corporate defendants had either directly or through their South African subsidiaries provided the equipment used by the South African Apartheid security agencies in committing violations of customary international law. The lawsuit charged the identified companies with aiding and abetting the perpetration of extrajudicial killings, torture, prolonged and arbitrary detention, indiscriminate shooting, rape and the racial classification of the people of South Africa that determined their life prospects over decades. The corporations that stood charged of their complicity in the perpetration of these apartheid crimes included Ford Motor Company, General Motors Corp., Daimler AG, International Business Machines Corporation, Barclays Bank, United Bank of Switzerland, Fujitsu and Rheinmetall amongst others.
“We are deeply disappointed by the decision of the 2nd Circuit Court of Appeal, though, in light of the Kiobel decision, it was to be expected,” said Ms. Shirley Gunn, board member of Khulumani Support Group, the national membership organisation of victims and survivors of apartheid gross human rights violations. South African attorney for the claimants, Charles Abrahams has said, “Notwithstanding its dismissal, the Apartheid cases have contributed to the development of international law related to processes of holding corporations accountable for gross human rights violations. Corporations are increasingly aware that any human rights violations as a result of their operational conduct could attract international law liability”
“The dismissal of the cases, after so many years, once again leaves open and unresolved, the unfinished business of the Truth and Reconciliation Commission,” said advocate Dumisa Ntsebeza, former Truth and Reconciliation Commissioner. “Organised business has yet to account and take responsibility for their role during apartheid. They have a crucial role to play in helping to close the gap between the haves and the have-nots”, said Marjorie Jobson, national director of Khulumani Support Group. “Many claimants have since died without receiving a cent. Only General Motors, made a small contribution to which we’ll now use to set up an Apartheid Reparations and Rehabilitation Trust Fund for the benefit of the claimants,” said John Ngcebetsha and Ms. Medi Mokuena, attorneys for the claimants.
The latest decision highlights limitations in international law to hold transnational corporations accountable for complicity in the perpetration of gross human rights violations. In South Africa, the focus returns to the failures of the South African government to adequately and effectively deal with the provision of an inclusive programme of reparations to all victims and survivors of apartheid gross human rights violations – something that the South African government claimed it was competent to provide in their original opposition to the South Africa Apartheid Lawsuit. All those disappointed by this latest development, expect delivery on these assertions by the South African government.
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