Victims of extrajudicial murder, torture, rape, and prolonged arbitrary detention filed a lawsuit in the United States in 2002 against multinational corporations alleging they aided and abetted the apartheid regime in the commission of gross human rights abuses.
Reflecting frustration over the more than seven years the litigation has been stalled by the defendant corporations, the mounted a national publicity campaign during the 2010 Soccer World Cup highlighting the alleged complicity of those corporations-including those sponsoring their national teams in the South African-hosted games. Still, critics in South Africa and elsewhere continue to ask why foreign corporations should be held to account, in United States Courts, for their actions in South Africa decades ago.
The South African Constitutional Court's decision in the 2009 case, Albutt v. Centre for the Study of Violence and Reconciliation and Others, demonstrates the significance of the apartheid suit both for victims and South Africa's own reconciliation process. It gives those who suffered the most egregious abuses an opportunity to hold allegedly complicit corporations responsible — an opportunity multinational corporations foreclosed when South Africa's own Truth and Reconciliation Commission(TRC) sought to unearth the truth.
Albutt concerned then South African president Thabo Mbeki's power to pardon those who had been convicted of apartheid-related crimes but who had not applied for amnesty from the TRC. The president conducted proceedings without giving the perpetrators' victims any voice in the process. The victims challenged their exclusion.
The Constitutional Court agreed that the victims should have been included, noting that Section 83 of the South African Constitution provides that the President must "promote the unity of the nation and that which will advance the Republic." Drawing from this obligation, the court found that victim participation was "crucial" in any confrontation addressing the accountability of persons alleged to have participated as a wrongdoer in apartheid. Efforts to achieve "the twin objectives of rebuilding a nation torn apart by an evil system and promoting reconciliation between the people of South Africa," the court held, unquestionably, required the participation of victims before the wrongdoers could be exonerated.
As one judge eloquently explained, the "notion of participatory democracy is . . . an African one" and, as an expression of that practice, "[v]ictim participation was the norm in deciding the proper 'punishment' for offenders in traditional African society." This remarkable "capacity for forgiveness," he noted, was in fact a fundamental element of the truth and reconciliation process and its duty to promote national unity.
In fact, this very principle of "participatory democracy" was the foundation of the TRC process and its amnesty power. Rebuilding and reconciliation from the ashes of apartheid must arise with victim inclusion.
One sector of apartheid life, has however, to date, escaped any process of truth and reconciliation — the international corporation. The multinational business sector has taken many steps since the end of apartheid to aid in rebuilding the nation. It has, for example, worked closely with the government to promote equal employment opportunities and black ownership.
It has invested in the nation, creating jobs and increasing wealth. But, in direct conflict with the principles espoused in Albutt, that sector has never acknowledged responsibility for its actions during the apartheid era, nor have victims been afforded an opportunity to participate in any meaningful process aimed at determining their accountability.
When South Africa provided a forum, the TRC made clear that "[t]o the extent that business played a central role in helping to design and implement apartheid policies, it must be held accountable." This was echoed by the African National Congress in its submission to the TRC on this issue, when it stated that "the business community must acknowledge both its own role in creating some of these conditions and its extensive collaboration with a system involved in gross violations of human rights." And the United Nations, for its part, made clear that the rights of victims of gross human rights abuses include "verification of the facts and full public disclosure of the truth", "a public apology, including acknowledgement of the facts and acceptance of responsibility", and "judicial and administrative sanctions against the persons responsible for such abuses."
To this end, the TRC held hearings on the role of the business sector in apartheid. Input from businesses was invited, but was not meaningfully forthcoming. Many key businesses refused to participate at all and as a whole, the multinational business sector failed "to take responsibility for its involvement in state security initiatives specifically designed to sustain apartheid rule." In particular, the TRC felt that "[t]he failure of multinational corporations to make submissions at the hearing was greatly regretted in view of their prominent role" during apartheid.
The principles of "participatory democracy," truth and reconciliation could not more clearly have been disregarded. Multinationals effectively foreclosed South Africa from uncovering the truth of their conduct during apartheid.
It was thus left to individual countries to take steps to bring the role of their businesses in apartheid to light. The Swiss government, for example, commissioned a study to determine the role that Swiss nationals and businesses played in supporting apartheid. It found, amongst other things, that Swiss corporations routinely helped the apartheid regime circumvent UN embargoes and that certain companies provided the enforcement agencies of the regime with the moral, financial and material support needed to sustain itself.
In a similar vein, the US litigation provides a participatory forum in which victims of apartheid abuses can uncover the misdeeds of multinational corporations and hold them to account for their unlawful acts. The defendant companies — General Motors, Ford, Daimler, IBM and Rheinmettal — are alleged to have provided the means by which security forces of the apartheid regime brutally and physically enforced the system of racial repression through the commission of gross human rights violations. IBM, for example, is alleged to have provided the means through which the Pass Laws were affected. The company provided the equipment to facilitate the apartheid government's system of pass laws that disenfrachised, tracked, and violated the rights of non-white South Africans on a daily basis, and was the cornerstone of apartheid. In 1952 IBM-SA received its first order for an 'electronic tabulator' which was the first step in its automation and expansion of the population control programme.
The motor companies are alleged to have provided customised vehicles, such as the Unimog, that gave the security forces the capabilities to subjugate the citizens of the townships and brutally quash political dissent. Rheinmettal is alleged to have provided the security forces with some of the weapons and ammunition used for extrajudicial killings and other crimes against humanity.
As twelve of the TRC Commissioners, including its chairman, explained to the US court, "the litigation is consistent with, and flows, from the TRC's findings regarding the role of business during apartheid." That it does so in the US, and not in South Africa or Germany, is entirely consistent with the universal principles upon which the anti-apartheid movement and, later, the South African Constitution were based.
International law provides that human rights violators should be held to account wherever they may be found. Indeed, Article III of the International Convention on the Suppression and Punishment of the Crime of apartheid (1973) specifically requires states to provide for liability for all those who "directly abet" the crime of apartheid and the gross human rights violations that it encompasses, whether the violator resides "in the territory of the State in which the acts are perpetrated or in some other State." The US law under which the case is proceeding — the Alien Tort Claims Act — provides a place for foreign nationals to bring cases against US citizens or other foreign nationals for violations of customary international law, including gross human rights abuses.
The defendants in the case, however, have opposed being held to account for their conduct in the US court. When, however, they were given the opportunity in South Africa to tell the truth about their participation in apartheid and their relationship with its enforcement through terrorist type behavior, they failed to do so. Now they do not want to be held accountable in a court of law in a country in which most of them are citizens or in which they routinely do business. What they are really saying is that they should not be responsible to anyone, for anything, at anytime, anywhere.
Human rights abusers should not dictate where, when, and to whom they are accountable. They cannot silence their victims or camouflage their misconduct by disappearing, shutting down or foreclosing all legitimate avenues of inquiry. Those who have been wronged have rights. Those who have done wrong have responsibilities.
As the South African Constitutional Court has made clear, South Africans have a right to be heard "to unburden their grief publicly, to receive the public recognition [of the world] . . . that they were wronged and . . . to help them discover what did in truth happen to them and or their loved ones."
International law and participatory democracy demand no less.
Michael Hausfeld is the chairman of Hausfeld LLP, one of the US-based law firms representing apartheid victims in the US litigation against multinational corporations. Hausfeld similarly represented forced- and slave-labourers in their claims against German and other corporations that used such labor during World War II. Ralph Bunche is an associate at the firm.