Sunday, October 4, 2009

SA apartheid case in US Courts

In the case of In re African Apartheid Litigation, 02 MDL 1499, U.S. District Court, Southern District of New York (Manhattan), Judge Shira Scheindlin in April of this year ruled that claims could go forward against Ford, General Motors, IBM and other companies for aiding and abetting torture by the apartheid government. Judge Scheindlin inherited the case from Southern District Judge John Spizzo who passed away in 2008. The plaintiffs are thousands of South Africans seeking damages for harms inflicted by the white majority under apartheid. The specific claims are brought under the Alien Tort Claims Act 28 U.S.C. §1350 (ATCA) the plaintiffs jurisdiction in US Courts for harms committed by US corporations abroad.

At first, the government of South Africa was against the suit. It filed a Motion to Dismiss. Judge Scheindlin rejected the defendants’ motion to dismiss under the doctrines of comity and political question. In early September that situation changed. Under Thabo Mbeki the SA government was against the case moving forward stating that it would discourage foreign investment in SA. The President Jacob Zuma government is all for the case moving forward. The South African Justice Minister Jeff Radebe wrote a letter to Judge Scheindlin expressing support for the case.

The quote at the beginning of Judge Scheindlin’s opinion reads: “The Truth about apartheid-about its causes and effects…about who was responsible for its maintenance-continue to emerge. This litigation is one element if that emergence.”Archbishop Desmond Tutu. And Commissioners of the Truth and Reconciliation Commission of South Africa. The claims are a violation of international customary law by the aforementioned corporations. The case against IBM is particularly interesting.

IBM sold software and technical assistance to the SA government that allowed the government to carry out geographic segregation and denationalisation. This case is important because of how the court defines the ATCA and how it defines international law as well. There is very little precedent in international law for third party liability. The court relies on standards of secondary liability set by the International Military Tribunal at Nuremberg, the decision of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda as well as the Rome Statue of the International Criminal Court-which all serve to better define the cause of action applicable for aiders and abettors based on the quality of assistance they provide. For IBM, the training and technical support provided for the use of its software is particularly condemning under customary international law. The computers sold to the SA government were used to register individuals and deprive them of their SA citizenship. This software also was used to create identity cards which further facilitated the denationalisation.

This is an unusual case and one of a new breed brought under the ATCA. I am not sure this case belongs in the US court system. However, perhaps the truth is that these cases belong wherever they can best better define international law. If that is in the US then ok. Perhaps, the dollar is no longer king but the US Courts may still provide some kind of leadership in international law. I will follow the case and report its progress.


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