Apartheid reparations and other courtroom brawls

The movement for reparations against transnational corporations that profited from apartheid is finally making progress within the generally hostile US judicial system, using the ‘Alien Tort Claims Act’ (ATCA) and public pressure. Along with Dennis Brutus, I reported on the matter last year – http://www.zmag.org/zspace/commentaries/3545 – and there are interesting new developments, good and bad.

Recall the complicated history, beginning in 1997, when Holocaust victims’ descendants filed cases under ATCA against Swiss banks and German companies, and ultimately settled out of court for $1.25 billion. Other ATCA cases settled out of court included opponents of the Burmese (‘Myanmar’) junta who sued the collaborating oil firm Unocol, and Chinese democracy activists who punished Yahoo! for turning over private information to Beijing security officials.

In 2002, South Africans including Brutus and lawyer Lungisile Ntsebeza, as well as the Khulumani Support Group for apartheid victims and Jubilee South Africa, used the ATCA to sue dozens of multinational corporations operating in South Africa during apartheid (‘Khulumani Support Group and 90 others’; ‘Digawamaje et al’; and ‘Ntsebeza et al’, subsequently consolidated in a 2007 countersuit, ‘American Isuzu Motors, et al, v Ntsebeza, et al’).

Because the Bush Administration persuaded SA president Thabo Mbeki to oppose the plaintiffs in mid-2003, New York Southern Circuit Judge John Sprizzo ruled the case in favour of the corporate defendants in November 2004. Sprizzo argued that the ATCA was trumped by US foreign policy and South African domestic economic policy considerations, in spite of amicus pleas to the contrary by Archbishop Desmond Tutu and economist Joe Stiglitz.

However, three years later, in October 2007, the activists won an appeal in the Second Circuit Court, which found that ‘in this Circuit, a plaintiff may plead a theory of aiding and abetting liability [for international crimes such as apartheid] under the ATCA’. The corporations counter appealed, and in May 2008, the conservative US Supreme Court was expected to finally kill the lawsuit, on behalf of the corporations. However, four of the justices discovered conflicts of interest in their own investment portfolios (they owned shares in the sued companies), so the Supremes had no choice but to pass the case back to the New York courts, which last month held another hearing on a corporate motion to dismiss.

Ultimately the corporations hoped that the decisive factor in their defense was the active collaboration of former SA Minister of Justice Penuell Maduna. The corporations’ ‘Joint Memorandum’ filed last year drew sustenance from Maduna’s declaration opposing litigation, later resubmitted by his successor, Brigitte Mabandla (who was subsequently shifted to a different ministry last September): ‘Like her predecessor, the current Minister maintains that the responsibility to address the country’s apartheid past… lies with the South African government and not foreign courts.’

The corporations also quoted former President Thabo Mbeki: ‘We are not defending the multinationals. What we are defending is the sovereign right of the people to decide their future… I can’t understand why any South African would want to be brought under such judicial imperialism.’

After leaving Mbeki’s cabinet, Maduna became the apartheid corporations’ main Johannesburg representative. He claimed to oppose the reparations lawsuit to protect national sovereignty, yet he had taken up this cause only in 2003 as a direct result of a letter requesting him, ironically, to invoke ‘SA sovereignty’, from US Secretary of State Colin Powell.

Subsequently, in spite of active Khulumani lobbying, the post-Mbeki government has failed to overturn official state support for the same corporations they had demanded leave SA twenty years earlier, reflecting the innate conservatism of current president Kgalema Motlanthe and ruling party leader Jacob Zuma.

Nevertheless, the hearing last month – in front of Judge Shira Schiendlin not Sprizzo (who died last December) – seemed to open up a new trajectory, thanks to skilled arguments by Michael Hausfeld for the plaintiffs. Late last year, the Washington lawyer honed down the case from nearly three dozen firms which profited most from apartheid, to nine which are charged with specifically having served the SA security forces in implementing repression.

The delimiting strategy increases the likelihood of a formal trial by jury this year – if the corporations’ appeal to dismiss is rejected by Schiendlin, as is now anticipated – and potentially a pathbreaking victory, on the one hand. Winning again in the Court of Appeals and Supreme Court is also possible, if majorities there uphold the claims, given that they are narrower than before.

But on the other hand, this strategy diminishes the merits of the apartheid profits lawsuit for more general attacks on corporate malfeasance in Africa and elsewhere.

Worried about the recent hearing, leading SA pro-business commentator Simon Barber reported in Business Day newspaper that Schiendlin ‘explored parallels between the makers of Zyklon B, the gas used in Nazi death camps, and the suppliers of computers and vehicles to agencies that enforced apartheid.’ He hopes that instead of that precedent, Schiendlin adopts the 2002 International Criminal Court’s Rome Statute definition of ‘aiding and abetting’ such crimes, ‘a more stringent standard.’

Ultimately, Barber reckons, ‘the case is less and less about winning reparations for people who feel they were shortchanged by the Truth and Reconciliation Commission. It is about putting the fear of God into corporations that do business in dodgy places.’

Critiques of malevolent firms and even colonial-era states are intensifying. Other cases include claims by the Herero people against Germany for genocide carried out in what is now Namibia (then a German colony) between 1904-08, and ATCA cases against oil firms which have despoiled the Niger Delta.

For example, the case Bowoto v. Chevron was heard last November in San Francisco, with Chevron acquitted by a district court in a jury trial. The case originated a decade earlier, when Nigerian armed forces worked closely with Chevron security, killing two unarmed Ilaje community members engaged in a sit-in at the firm’s Parabe Platform. Others were permanently injured and indeed tortured by the military.

In February, Chevron (whose record profits in 2008 amounted to $23.8 billion) rubbed salt in the Ilaje people’s wounds by seeking reimbursement of $485,000 in legal fees for the case, including $190,000 in photocopying charges. Justice in Nigeria Now is the Ilaje people’s representative in the US, and their lawyer Bert Voorhees remarked of Chevron, ‘They are trying to bring this cost bill as a warning to any other folks who might seek justice’.

The case was lost again on appeal on March 4 in the District Court for the Northern District of California, but Voorhees plans another appeal, due to ‘insufficient evidence for the defense verdict, erroneous legal rulings, and prejudicial misconduct by Chevron’s lawyers.’

An impressive network has emerged to support the Ilaje. In addition to Voorhees’ firm and Justice for Nigeria Now, it included EarthRights International, the private law firms of Hadsell Stormer Keeny Richardson & Renick and Siegel & Yee, and Cindy Cohn and the Electronic Frontier Foundation, Robert Newman, Paul Hoffman, Richard Wiebe, Anthony DiCaprio, Michael Sorgen, Judith Chomsky and the Center for Constitutional Rights.

Many of these organizations are also supportive of the Movement for the Survival of the Ogoni People, whose leader Ken Saro Wiwa and 8 other Ogoni activists were executed by the Abacha regime in November 1995. Shell was kicked out of Ogoniland in mid-2008. Wiwa’s son Ken is taking Shell to the New York courts for ‘complicity for human rights abuses against the Ogoni people in Nigeria, including summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional distress’.

In a case filed in 1996 but only going to court on April 27 2009, Wiwa is invoking not only ATCA but also the Torture Victim Protection Act and Racketeer Influenced and Corrupt Organizations Act. Crucial to these cases’ progress will be the kind of high-profile public campaigning associated with the apartheid reparations campaign.

Other legal strategies are being pursued, including a so far unsuccessful ATCA case (on appeal) by the family of the late Palestine solidarity activist Rachel Corrie against Caterpillar, which supplied the Israeli military with the vehicle that killed her.

In Corrie v. Caterpillar, Inc. (2007), the judges ruled that ‘Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States’ decision to pay for the bulldozers which allegedly killed the plaintiffs’ family members.’

More promisingly for ecological reparations activists, a global warming lawsuit was settled out of court last month by Friends of the Earth, Greenpeace and the cities of Boulder in Colorado and Arcata, Santa Monica and Oakland in California. Their targets were the US Export-Import Bank and Overseas Private Investment Corporation, which invested, loaned or insured $32 billion in fossil fuel projects from 1990-2003 with no regard to the US National Environmental Policy Act (NEPA).

At present, US cities have formal standing to sue for damages from climate change under NEPA, in the wake of a 2005 federal ruling, but others – especially in the continent least responsible and most vulnerable to global warming, Africa – may have future recourse, perhaps under ATCA. The defendants agreed to important concessions in the settlement, rather than monetary damages; both will incorporate CO2 emissions into future planning (http://www.foe.org/climatelawsuit).

While the ecological debt doctrine continues to be built, there is ongoing interest in contestation of Illegitimate and Odious Debts associated with African dictatorships. In the wake of Ecuador’s January 2009 debt default, this appears a promising grassroots pressure discourse, since so many African countries have residual or historic debts associated with the financing of dictators by Western governments and banks.

Given the inadequacy of the 2005 G7 finance ministers’ concessions (the Multilateral Debt Relief Initiative) just prior to the G8 meetings in Gleneagles, a movement began to promote a ‘Fair and Transparent Arbitration Process’ meant to promote cancellation – or if not, then repudiation – of African external debt.

Some of these are elite processes, and suffer from the broader cul-de-sac of global governance paralysis, in which since the Basel Convention on Trade in Toxics (1992) and Montreal Protocol on ChloroFluoroCarbons (1996), there have been no world problems tackled effectively (consider the failed Doha Agenda of the World Trade Organisation, United Nations reform, Bretton Woods democratization, the Kyoto Protocol).

Nevertheless, the Harare debt research NGO Afrodad concludes, ‘We are deeply convinced that despite its own weaknesses as a global institution, the UN remains the most suitable place to establish an arbitration court because of its legitimacy across nations.’

In contrast, there are a myriad of other more militant, grassroots-driven strategies presently at work, exemplified by historic AIDS medicines victories against Big Pharma and the US and South African governments by the South African Treatment Action Campaign (TAC) and their international supporters. These included two crushing 2001 defeats for TAC’s opponents in the courts, including South Africa’s Constitutional Court.

Other anti-corporate victories have been claimed by civil society members of the Africa Water Network, especially Accra’s Campaign Against Privatisation and Johannesburg’s Anti-Privatisation Forum and Coalition Against Water Privatisation.

In the wake of years of militant protest, the latter groups won a High Court victory last April against the public agency Johannesburg Water (managed from 2001-06 by the giant firm Suez of Paris), resulting in a judgment doubling the universal Free Basic Water allocation to 50 liters per person per day and banning prepayment meters, in a case the state appealed last month and which is likely to go to the Constitutional Court as well.

It is becoming clear, in such cases, that it is only in the mix of radical social pressure – ‘tree-shaking’ – and the power of the courtrooms – ‘jam-making’ – that the threat to corporations which exploit Africa can be maximized.

(Patrick Bond directs the University of KwaZulu-Natal Centre for Civil Society in Durban: [email protected])

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