Apartheid Debt and Reparations Campaign

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					                              Apartheid Debt and Reparations
                                                  Campaign
                                             th
                                           12 Floor East Wing, Auckland House, 185 Smit Street.
                                               P.O. Box 31082, Braamfontein 2017, South Africa
                                                                       Tel. +27 11 403 7624/22
                                                                         Fax. + 27 11 339 4560
                                                                         E-mail: lizj@sn.apc.org
                                                                          j2000sec@sn.apc.org

13th July 2004


To: Partners, solidarity organisations and supportive individuals:


Re: Support for the Khulumani lawsuit / Sign on to an Amicus Curiae
brief

The Apartheid Debt and Reparations task team of Jubilee South Africa, would like to ask
for your consideration in joining us in an unprecedented opportunity to advance the cause
of human rights worldwide by signing on to an amicus curiae brief in support of the
Khulumani lawsuit in the United States. Recently, a number of multinational
corporations, supported by the American and British governments, requested the United
States Supreme Court not to allow foreigners to file lawsuits in America for human rights
violations committed elsewhere in the world. They used the case of Sosa v Alverez to
suggest to the United States Supreme Court that the Alien Tort Claims Act (ATCA) or
the Alien Tort Statute (ATS) as it is generally referred to, cannot and should not be used
for the purpose of human rights abuse. At present, a number of such cases brought under
the Alien Tort Claims Act (ATCA), of which the Khulumani lawsuit is one, are pending
before various courts in the United States for human rights abuses committed by
multinational corporations in various parts of the world such as Burma, Nigeria,
Indonesia and South Africa.


       1.        Victory for human rights globally
       However, on 29 June 2004 the United States Supreme Court in the case of Sosa v
Alverez held that foreigners could use the Alien Tort Claims Act (ATCA) to institute
lawsuits in the United States for human rights abuses wherever they may be committed in
the world. The Court held that “today the door is open to a narrow class of international
norms” for litigants to institute lawsuits under the Alien Tort Claims Act (ATCA). The
Court observed that “it would take some explaining to say now that federal courts must
avert their gaze entirely from any international norm intended to protect individuals.”
The Supreme Court held that “Section 1350 was enacted on the congressional
understanding that courts would exercise jurisdiction by entertaining some common law
claims derived from the law of nations” and “there is every reason to suppose that the
First Congress did not pass the ATS as a jurisdictional convenience to be placed on the
shelf for use by a future Congress or state legislature that might, some day, authorize the
creation of causes of action or itself decide to make some element of the law of nations
actionable. . . the reasonable inference from the historical materials is that the statute was
intended to have a practical effect the moment it became law.” The court further held
that “courts should require any claim based on the present-day law of nations to rest on a
norm of international character” defined with specificity and that claims “must be gauged
against the current state of international law, looking to those sources we have long,
albeit cautiously, recognized.”


        This has been a great setback for the US and British governments as well some of
the world’s biggest multinationals. The decision comes at a time when the US Supreme
Court also held that detainees at Guantanamo Bay are entitled to challenge the legality of
the detention of foreign nationals captured abroad in connection with hostilities. A further
advance for international human rights was the decision of the International Court of
Justice (ICJ) in The Hague on Thursday, 9 July 2004 when it held that the wall erected by
Israel is in violation of international law and that Palestinians are entitled to reparations.
It is these advances in international human rights that the Khulumani lawsuit seeks to
protect and advance.


       2.      The Khulumani lawsuit seeks to advance international human rights
       On 11 November 2002 the Khulumani Support Group, a South African support
organization instituted a lawsuit against 23 multinational corporations for their role in
human rights abuses committed in South Africa at the time of Apartheid. The suit was
brought under the Alien Tort Claims Act (ATCA) on behalf of Khulumani and its
members for those who had murdered, tortured, raped, those who disappeared and were
unlawfully detained for long periods because of their opposition to Apartheid. The
corporations named as defendants supplied the financing, technology, transportation, oil,
and arms, without which the crimes of Apartheid would not have occurred the way they
did without their participation. The victims seek to hold the multinationals accountable
for their participation, achieving restitution and a measure of justice for their injuries. The
principle the Khulumani lawsuits seeks to advance is to have a rule of law recognized
universally condemning Apartheid, genocide, official torture, rape, disappearances,
prolonged arbitrary detention, slavery, human trafficking and crimes against humanity.
Such morally reprehensible conduct would be illegal. There would be a globally defined
set of norms, which, if broken, would expose the transgressor to criminal and civil
prosecution. There would be a means to enforce and deter conduct which offends all of
humankind, and an ability to redress the injury to society as well as the injury for the
individuals abused.    In essence, there would be a principle which legally obligated
nations and multinational corporations to respect the sanctity of basic human rights and
conform their behaviour accordingly.




       3.      Corporations and governments seek to stop the Khulumani lawsuit
       However, the corporations against whom the lawsuit was filed have invested all
their efforts to defeat the legal right of victims of Apartheid abuses to hold them
accountable for their responsibility in furthering and contributing to those crimes. With
the support of the American and British governments, these corporations have advised
the American court that recognizing such a principle would supposedly infringe upon the
sovereignty of nations and interfere with the business of free trade. They have drawn the
lines of confrontation between the interests of unrestrained governments and corporations
and the right of respect for basic human rights and dignity.
       The corporations’ motion to dismiss the Khulumani and other Apartheid lawsuits
have suffered a huge blow in the face of the Supreme Court decision in the case of Sosa
v. Alvarez-Machain. Even though the court held that the brief detention alleged by Dr.
Alvarez-Machain did not rise to the level of a violation of a specific, binding norm of
international law, (“a single illegal detention of less than a day, followed by the transfer
of custody to lawful authorities and a prompt arraignment, violates no norm of customary
international law so well defined as to support the creation of a federal remedy”), the
Plaintiffs in the Khulumani lawsuit have alleged violations of norms of international
character defined with specificity: extrajudicial killing, torture, sexual assault in
connection with other torture, prolonged arbitrary detention, and crimes against
humanity.


       However, the US Supreme Court cautioned that the right to civil relief must be
balanced by the domestic policy interests of the foreign nations in which the conduct
occurred and the foreign policy concerns of the United States. Regrettably though, in a
footnote in the judgment, the US Supreme Court referred to the declaration submitted by
the former South African Minister of Justice and Constitutional Development, Dr.
Penuell Mpapa Maduna, submitted to a district court where the Khulumani and other
Apartheid cases are pending as an instance where the caution should be applied. The
declaration expressed the South African government’s concern that the cases before the
court would interfere with the policy embodied in the Truth and Reconciliation
Commission. The South African government has specifically asked the court to abstain
from adjudicating the victims claims in deference to its paramount national interests.


       The Supreme Court did not have before it the facts of the Khulumani litigation.
The litigation names as defendants only companies that refused to participate in the TRC
process and thus poses no conflict with the policy embodied in the TRC. In fact, the
Khulumani plaintiffs filed a declaration from TRC Commissioner Yasmin Sooka calling
the Khulumani litigation “important” in light of the TRC findings and stating “I believe
that the Khulumani litigation does not pose any conflicts with the TRC Act or any South
African law and that the relief sought by the Khulumani litigants are consistent with the
finding of the TRC.” Commissioner Sooka concludes, “the failure of these corporations
to be held accountable for their crimes of aiding and abetting a criminal enterprise such
as Apartheid creates a huge block in deterring and preventing future violations of crimes
against humanity.”


       Nobel Prize winner Archbishop Desmond Tutu also filed a declaration stating that
“it was never contemplated by the TRC that victims of Apartheid would be precluded
from seeking compensation through the ordinary civil process-except of course, to the
extent that the perpetrator involved had been granted amnesty with respect to the wrong.”
Archbishop Tutu notes that “the obtaining of compensation for victims of Apartheid, to
supplement the very modest amount per victim to be awarded as reparations under the
TRC process, could promote reconciliation, by addressing the needs of those Apartheid
victims dissatisfied with the small monetary value of TRC reparations.”


       Moreover, the TRC’s Final Report clearly illustrates that the Khulumani litigation
poses no conflict with South Africa law or policy:
               “Business failed in the hearings to take responsibility for its involvement
               in state security initiatives specifically designed to sustain Apartheid
               rule…”


               “It is also possible to argue that banks that gave financial support to the
               Apartheid state were accomplices to a criminal government that
               consistently violated international law.”


               “The recognition and finding by the international community that
               Apartheid was a crime against humanity has important consequences for
               the victims of Apartheid. Their right to reparation is acknowledged and
               can be enforced in terms of international law.”


       President Mbeki himself, in his Statement to the National Houses of Parliament
and the Nation at the Tabling of the Report of the Truth and Reconciliation Commission,
stated that “there shall be no general amnesty” for those who did not participate in the
TRC process and that “this approach leaves open the possibility for individual citizens to
take up any grievances related to human rights violations with the courts.” While he also
stated that the South African government is not and will not be a party to litigation
against corporations that benefited from the Apartheid system, he noted that “the
Government recognizes the right of citizens to institute legal action.”


       4.      Difference between the Khulumani and other Apartheid lawsuits
       The Khulumani lawsuit does not seek to interfere with the sovereignty of the
democratically elected government of South Africa. To the contrary, it is aimed at
strengthening the very constitutional democracy that has emerged in South Africa since
1994. It would appear that the Maduna declaration was essentially submitted in response
to claims which other Apartheid lawsuits sought to promote. The Maduna letter focused
on four principal concerns with the non-Khulumani litigation. First, it was noted that the
other litigation appeared to suggest the present South African government had done “little
or nothing about redressing the ravages of the Apartheid system, a claim not advanced by
the Khulumani litigation. Second, because of the extremely wide-ranging forms of relief
requested for a class of members of South Africans from 1946 to 1994, it “made little
sense” for the government to support litigation which in effect, sought to “set up the
claimants as a surrogate government.” The Khulumani case only represents a small group
of victims that suffered the above abuses under Apartheid. Third, the other litigation
according to the government attempted to undermine South African sovereignty by
naming as defendants South African companies. No South African companies are named
in the Khulumani lawsuit. Fourth, the remedies demanded in the other suits requested,
among other things, the institution of affirmative action programmes throughout the
South African economy and the total restructuring of the South African educational
system. Those requests, the government noted, were inconsistent with South Africa’s
approach to achieving its own long term goals.


       None of the overbroad demands of these suits, as detailed in the Maduna letter,
apply to the Khulumani litigation. Additionally, while the non-Khulumani Apartheid
cases sought recovery for employment discrimination and other harms, the Khulumani
litigation concentrated on those norms traditionally recognized as violations of customary
international law in the human rights field.


       5.        Support the Khulumani lawsuit
       If the reasons advanced by the South African government should be applied to the
Khulumani lawsuit, it would effectively jeopardize the advancement of that narrow class
of international norms which the Sosa case opened the door for. The South African
government’s declaration could effectively shut the door not only for claims for
Apartheid, but for all human rights claims brought under the law of nations. Other
countries, where abuses have and continue to take place could effectively file similar
declarations with the court making it impossible for human rights cases to be adjudicated.
Thus the entire opening created by the decision in Sosa is jeopardized, in our opinion,
should the district court accept the South African government’s declaration in the
Khulumani litigation.


       Consequently, we urge your consideration to supporting the notion that the Sosa
decision offers a real opportunity to have national judicial systems acknowledge the
supremacy and universality of a rule of law obligating adherence to behaviour which
respects basic human dignity. We believe the Khulumani litigation is one of the strongest
fact patterns on which to build this new global principle which would be binding on
nations, national leaders and multinational corporations. Please join us in the effort to
elevate human rights as a meaningful counterbalance to the exercise of abusive power by
signing on to the amicus brief included herewith or which will follow shortly.


Should you require any further information please do not hesitate to contact the following
organizations:
Jubilee South Africa, c/o Makoma Lekalakala, makoma-j2000@sn.apc.org Tel +27-11-
403 7622
Khulumani Support Group, c/o Marjorie Jobson, mrjobson@lantic.net Tel +27-82-268-0223
Abrahams Kiewitz Attorneys, c/o Charles Abrahams, ak-law@iafrica.com Tel +27-21-934-
4842
Cohen Milstein Hausfeld & Toll, c/o Angela Wallis, AWallis@CMHT.com Tel +91-202- 408-
4600


This letter was prepared by our legal team - Charles Abrahams based in South Africa and Michael
Hausfeld based in the United Statesof America.


We look forward to your solidarity and support.
Yours sincerely


M.P. Giyose                               Alvin Anthony
National Chairperson                      National Co-ordinator




      Patrons: Prof Fatima Meer; Archbishop Njongonkulu Ndungane; Ms Yasmin Sooka;
   Bishop Mvume Dandala; Chief Rabbi Cyril Harris; Moulana Faried Esack; Archbishop Buti
                                 Tlhagale; Dr Barney Pityana;
  Rev. Charity Majiza; Dr Beyers Naude; Adv. Rams Ramashia; Ms Sheena Duncan; Dr Molefe
 Tsele; Bishop Kevin Dowling; Prof Dennis Brutus; Rev. Peter Grove; Mr Don Mattera; Ms Graca
                                Machel; Adv. Dumisa Ntsebeza

				
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