Khulumani celebrates Michael Hausfeld’s receipt of the Torch of Learning Award on October 16, 2012 in Washington DC –

Michael Hausfeld is a worthy recipient of this recognition given his dedicated work in the field of civil litigation dating back to his successful representation of a class of Holocaust victims whose assets were wrongfully retained by private Swiss banks during and after World War II. That case, Friedman v. Union Bank of Switzerland raised important new issues related to international banking law and international human rights law.

Michael subsequently successfully represented various former Eastern European countries on issues of slave and forced labor for both Jewish and non-Jewish victims of Nazi persecution.

A long and continuing struggle for justice for apartheid victims

In 2002, Michael Hausfeld filed the case Khulumani et al v. Barclays et al (now the South Africa Apartheid Litigation) on behalf of Khulumani Support Group and its membership of victims and survivors of apartheid crimes as the organisation’s US counsel.

The lawsuit was a strategic component of the Apartheid Debt and Reparations Campaign that brought together members of the anti-apartheid movements in efforts to deal with gaps left by the failure of the Truth and Reconciliation Commission to hold business accountable for their complicity in the perpetration of gross human rights violations in South Africa in violation of international customary law.

The Khulumani case charges a number of multinational corporations with aiding and abetting the perpetration of gross human rights violations by providing the apartheid security agencies with the equipment they used to violently suppress resistance across the country. The case seeks compensation for identified individuals whose harms can be directly linked to the equipment provided by these companies.

There have been several significant breakthroughs since the filing of the lawsuit including the April 8, 2009 decision of Judge Shira A Scheindlin that the case should be allowed to proceed against IBM Corporation, German automaker Daimler AG, Ford Motor Co., General Motors Corp. and Rheinmetall Group AG, the Swiss parent of an armaments maker.

Minister of Justice and Constitutional Development, Mr Jeff Radebe delivered a letter to the court on September 1, 2009 declaring that the South African government had no objection to the case proceeding in the US court because government now deemed this to be the most appropriate forum to adjudicate the claims.

But the case has been prevented from going to trial pending the outcome of the defendants’ appeal to the Second Circuit Court against the Scheindlin decision. Oral arguments were heard in January 2010 but the court has not yet handed down its judgment.

A challenge to US founding principles

A further cause of delay has been the wait for the decision of the U S Supreme Court of Appeal in the Kiobel v. Royal Dutch Shell Petroleum case.

The Kiobel case alleges that a Dutch oil company aided and abetted human rights violations committed against Nigerian citizens by the Abacha dictatorship in Nigeria. Shell is arguing that this case involving human rights violations committed against Nigerian citizens in Nigeria, has no place being heard in US courts. Justice Samuel Alito has supported this position.

The making of a decision in support of this argument would have huge ramifications for victims of corporate abuses across the world. It would preclude future cases against multinational companies that have a presence in the US, being brought to US courts.

Michael Hausfeld and his associate Kristin Ward Broz have highlighted the consequences of this potential outcome as a reversal of the founding principles of American independence which held that no ruler ‘had incontestable dominion over his or her subjects and (that) no government could take away or infringe rights basic to fundamental human dignity.

In adopting these founding principles, the United States became “the first among nations to so break the yoke of colonial rule” and in so doing, “made it their business to be concerned with gross domestic transgressions wherever they occurred.” They warned that the removal of provisions to adjudicate such cases within the United States could result in the United States providing legal sanctuary for the ‘enemies of humankind’.

Hausfeld and Broz explain in their October 2, 2012 article, The Business of American Courts in Kiobel, published in JURIST – Sidebar (http://jurist.org/sidebar/2012/10/hausfeld-broz-kiobel-jurisdiction.php.) that “we invoked our jurisdiction to make our courts available to impose accountability upon any person or entity having a presence in the country. Individuals or corporations that seek the protection, rights and privileges of our laws must also accept the countervailing exposures. By residing or doing business within our borders, an individual or corporation becomes accountable for gross violations of human rights which he perpetrated or knowingly participated in, wherever those violations occurred. The location of the offenses is irrelevant to the duty to adjudicate.” US courts have in their human rights decisions up until the present given effect to these principles. They have been a ‘small but important step in the fulfillment of the ageless dream to free all people from brutal violence’.”

Those who support the position of Shell, however, seek to reverse this position and to force US courts ‘to take one giant leap against mankind’. Hausfeld and Broz argue that the justices on the bench of the US Supreme Court of Appeal ought “not to close the doors of US courts to the world’s oppressed, while opening the gates of our liberty to the greatest offenders on earth”.

At the cutting edge of transnational jurisprudence

Litigation to advance corporate accountability is at the cutting edge of the development of transnational jurisprudence to address the potentially harmful impacts of multinational corporations on workers, communities and the environment in which they operate. Hausfeld speaks of how wrongful conduct in the past may have affected only an individual or a small number of individuals, while today’s misconduct in an interconnected world has consequences of huge magnitude and scope.

In a paper entitled A Victim’s Culture, Michael argues that just as criminal law holds perpetrators accountable to society for their transgressions, so too must civil law do the same for those actually harmed. Individuals must have a means of pursuing and receiving restitution or compensation for the economic and / or personal consequences of others’ wrongs.

The justice system must be empowered to “restore integrity to society and well-being to its citizens” and the law must be applied equally for the rich as well as the poor, for the weak as well as the powerful, for the masses as well as individuals. If it does not, a victim’s culture is created which would be characterised by a perpetual state of passive resignation amongst the majority of the world’s citizens that they will be preyed upon and will inevitably suffer injury without remedy – a situation of wrongs without rights.

This is a world of unrestrained corporate power with nation states being more beholden to the demands of capital for enabling environments for profiteering, than to their own citizens, a situation that has intensified since the imposition from 1992 onwards by global financial institutions of harmful policies – policies that have forced countries to open their borders for the free flow of capital and to privatise everything from which profit can be made.

In Africa, these policies have seen all the social gains achieved since independence from colonial rule reversed along with deteriorating standards of living across the continent. It is to resist these practices that civil litigation to establish corporate accountability is targeted.

The struggle for redress for miners affected by occupational diseases

Media attention to the filing of lawsuits against three major international mining companies on behalf of ex-mineworkers from the Southern African region who are victims of occupational diseases in the gold-mining industry in South Africa on August 12, 2012 was overshadowed by the strikes and unrest that has thrown the mining industry in South Africa into turmoil.

In this case, it is Michael Hausfeld again who is serving as US counsel to South African counsel. The defendants are AngloGold Ashanti Ltd., Harmony Gold Mining Company Ltd., and Goldfields Ltd. The desired outcome of the case is for fair compensation for serious lung diseases suffered by miners in the industry, noting that the miners are recruited from the poorest areas of the region and that they work under the most dangerous conditions that threaten their ability to provide for themselves and their families after a few years of employment because of injury or serious lung diseases.

According to documents filed in the case, between 320,000 and 500,000 black Southern African gold miners have contracted silicosis and other occupational lung diseases over recent decades. The highest recorded rates of tuberculosis in the world have been found in amongst workers in the gold mines of South Africa, with disease statistics remaining “unconscionably high for decades.”

It is time that strong action is taken to end the practices of simply throwing away young but sick miners with irreversible lung diseases to eke out a life of mere survival in remote rural areas of the region as broken men, waiting to die. The stories of these miners who have given the industry the best years of their lives, only to be discarded as useless and broken once they acquire irreversible lung damage as a result of silicosis, are almost too unbearable to hear. The legal challenge being brought by Michael Hausfeld and his associates will hopefully bring some redress for the affected miners and their dependants.

Celebrating the recognition of a groundbreaking lawyer

Khulumani is exceptionally proud of its association with Michael Hausfeld who has been widely recognized within his profession as a visionary groundbreaker in advancing the use of the law for social reform.

The Global Competition Review recently stated that Michael’s firm, Hausfeld LLP “is clearly recognized as one of the best plaintiffs firms in the country.” The magazine had previously reported that Michael is “a Washington lawyer determined to change the world — and succeeding” as his firm handles large and complex litigation matters on behalf of individuals, corporations and organizations in the areas of antitrust / competition law, human and civil rights, mass torts, environmental threats, securities fraud, and consumer protection through consistently applying forward-thinking ideas and creative solutions to some of the most vexing global legal challenges faced by clients.

Hausfeld LLP has a track record of having developed numerous innovative legal theories that have expanded the quality and availability of legal recourse for innocent claimants around the globe that have suffered egregious wrongs and have a right to seek recovery.

Khulumani is grateful for Michael’s commitment to fighting the cause of justice for historical crimes. It continues to be an extraordinary privilege to be represented by a human being who exemplifies a commitment to righting human wrongs and to advancing justice and dignity to those who can be counted amongst the victims of the most extreme abuses of human rights in the world.

Khulumani deeply appreciates the ten years of pro bono service the organisation has received from Mr Hausfeld. His deep respect and compassion for those most severely harmed by human rights violations has been an extraordinarily restorative experience for thousands of Khulumani members. It has been an exceptional privilege for Khulumani Support Group to have been associated with Mr Hausfeld over the past decade as he continues the struggle to ensure that justice is not only equal for all, but also equally available to all.