Why reparations lawsuit should not make it in New York court
by Kader Asmal - Published: 2010/01/15 06:20:45 AM

ALL my life I have fought against racial oppression and I believe wrongdoers must be held accountable. Still, in my capacity as an international law scholar, I recently co-authored an opinion which supports a motion to dismiss claims being brought by South African citizens in US courts against several international corporations in relation to their conduct in SA during the apartheid era. And I would do so again. I have learned during my life-long fight against racial oppression that it is of vital importance to preserve and defend our intellectual honesty.
The plaintiffs in this case are not automatically right because they were oppressed during the apartheid years, and the defendants are not automatically wrong by virtue of the fact that they are international corporations.

We owe ourselves a more rigorous analysis of the questions this litigation poses. Because the plaintiffs here chose to file their claims in a US court, we must also accept that the legal analyses and resulting consequences in this litigation will reflect and rely on US and not South African domestic law.

My colleagues and I, a group of 16 professors of international law from around the world, addressed a question of international customary law in our joint amicus brief. We did not take sides between the parties, nor did we engage in flights of fancy on how any of us would like international customary law to be. It is intellectually dishonest to claim that we did anything but apply straightforward legal analysis to the legal questions at issue.

During the current appeal, the US 2nd Circuit Court of Appeal early last month asked the litigants and any other interested parties to submit to it statements on the status of the following international law point: as international law determines the scope of liability under the Alien Torts Act, does customary international law recognise corporate criminal liability

The Alien Tort Statute is the US statute under which this litigation is brought, and it only allows US courts to hear allegations of conduct that violates “customary international law”. “Customary international law” is defined in relevant US jurisprudence as “rules that states universally abide by, or accede to … out of a sense of legal obligation and mutual concern

Under the US legal rules at issue, customary international law is not created because the domestic law of various individual countries may recognise corporate liability.

It may be desirable one day in the future for companies to be held liable for violations of international customary law. But customary international law is not what one wishes or hopes it to be: there are strict criteria established by US appellate courts that have to be met before a principle becomes part of customary international law. It is not the stuff of dreams . The status of customary international law during the apartheid era — as well as its current status — is that it regulates states and in certain circumstances individuals, but does not apply to corporations.
For example, the Nuremburg trials did not allow for corporations to be held liable. The International Convention on the Suppression and Punishment of the Crime of Apartheid did not include liability for corporations. The Rome Statute — which set up the International Criminal Court — rejected liability for corporations specifically because corporate liability was not yet universally recognised. The jurisdiction of the International Criminal Tribunals for Rwanda and Yugoslavia was limited only to natural persons.

One cannot decide today that a rule must be created that says that actions that occurred in the past and which weren’t illegal then now can suddenly render a company liable today. This violates the principle that laws should not apply retrospectively — a principle of customary international law.

The plaintiffs in this matter seek to rely on domestic law to prove that international law accepts corporate liability. But this is not a legally correct conclusion and puts the cart before the horse. They also rely on treaties which came into force after the end of apartheid to try to prove that actions during apartheid subject corporations to liability. That is not possible, especially as those treaties do not reflect customary international law and do not even necessarily impose liability on corporations (as they leave it to the states to choose what to do).

It seems to me that the plaintiffs and their academic supporters were answering in their court submission a different question: whether international law should allow for liability for corporations. But that was not the question the court was asking.

The Mbeki administration (of which I was a part) considered the matter very carefully in the early 2000s and decided that it is the very pendency of the apartheid litigation in the US that is against SA’s own sovereign interests.

The Zuma administration has now changed that position. I am not sure why, because the statements from the government about the litigation are confusing. Regardless, SA’s sovereign interests have not changed just because we have a new government, and all the well thought-out, convincing arguments remain for why these claims should not be heard in New York.The legacy of apartheid and the questions of who should be held accountable and to whom are questions at the heart of the South African identity. We fought for many years so that we could become the masters of our own destiny as South Africans. So why would we hand that legacy over to a randomly picked group of 12 people in a jury room in New York?

According to recent press reports, the current administration withdrew SA’s opposition to the pendency of the US litigation in September last year because of yet-to-be-disclosed evidence given last year to Justice Minister about a yet-to-be-filed European Union (EU) lawsuit that will supposedly expose sanctions busters.

Not even considering the “ hearsay” nature of these allegations, none of the media reports about this allegedly planned EU lawsuit mention the current corporate defendants as being involved. If true, one would argue that any such case — such as the apartheid litigation — should be heard by the courts of SA, and that the government should have upon learning about it redoubled its efforts to have the apartheid litigation brought back to SA.

If the case were heard in SA under South African domestic law, there would be no question about whether a company could be held liable here, if all the facts were proved, for aiding and abetting crimes. Under South African domestic law, both natural persons and companies could be held to account.

However, the plaintiffs, Khulumani, and their lawyers chose to file these claims in the US and not in SA because their potential compensation amounts will be higher in the US. They chose the US forum, a choice apparently now supported by SA’s government, and they must now accept that under the US Alien Tort Statute it is customary international law — not the domestic law of the US, SA or any other country — that establishes the scope of liability there.
My heart goes out to the ordinary plaintiffs, but their application is misconceived. These important questions require intellectual honesty and an understanding of the law. The applicable rule of law in this litigation is the American interpretation of customary international law. Unfortunately for the plaintiffs, the legal consequence of their choice of forum requires that their US cases against these multinational corporations be dismissed.

*Asmal is honorary professor in law at the University of the Western Cape and the University of Cape Town.