On Friday 20 June 2014 in Bern, the Swiss Federal Council removed the ban on access to the files relating to Swiss-South African business dealings in the federal archives. The ban had been imposed in 2003 to restrict access to files associated with capital and other export transactions with South Africa during the apartheid era.
The authorities have announced that the purpose of the ban was “to prevent significant Swiss companies that were involved in apartheid class actions in the United States from being in a worse position procedurally than foreign companies.”
The decision follows a review conducted by an interdepartmental working group under the leadership of the Federal Department of Finance which found that the risks faced by the Swiss companies identified in the litigation filed in the United States (the South Africa Apartheid Litigation) showed that the risks for the Swiss companies had declined considerably following the decision of the US Supreme Court that foreign companies (non US companies) could no longer be held liable for aiding and abetting human rights violations in terms of the Alien Tort Statute in courts in the United States.
The lawsuit had identified Swiss companies that had provided military hardware to the apartheid security agencies and Swiss banks that had advanced finance to the apartheid government, as defendants in the case. The files related to relations between Switzerland and South Africa during apartheid will now be subject to the usual provisions of the Archiving Act in the same way as files on relations between Switzerland and all other countries.
There has been considerable outrage in the Swiss media about the emergence of the truth that the reason for the ban had been to protect corporate interests ahead of the public’s right to information and freedom of research. Professor Kreis who coordinated the National Science Foundation’s investigation into Swiss-South African Relations during Apartheid, has published an article “Die-Schweiz-gibt-Apartheid-Akten-frei-und-will-es-doch-nicht-so-genau-wissen” in which he details this history. He points out that the same authorities who had initiated the national research programme were those who then imposed the ban after the lawsuit had been filed.
Professor Kreis explains that the authorities had been blackmailed by business and the financial sector when the lawsuit was filed. They had threatened to sue the government for damages if they should be sentenced to pay compensation to victims in the lawsuit.
Parliamentarians have asked for action to complete the incomplete research project which remains a half-done job. Others have asked for cantonal and private (corporate) archives to be opened.
The corporate sector in Switzerland had publicly expressed its regret about this decision, stating that this would draw unwelcome negative attention to Switzerland and that "lawyers in the US might feel encouraged to sue Swiss companies in class actions.”