Like Jarndyce v. Jarndyce in Charles Dickens’ Bleak House, Khulumani v. Barclays National Bank grinds on inexorably before a federal court in New York. We are now in the seventh year of this oft-renamed quest to extract reparations from multinationals that did business with the South African government under apartheid. No immediate relief is in sight.
There have been developments, though. We have a new judge. She is Judge Shira Scheindlin. Her predecessor, Judge John Sprizzo, died last December. He wanted to dismiss the case, but the appeals court found fault with his reasoning. The Supreme Court was expected to uphold his dismissal but could not produce a quorum. Too many of its members had stakes in defendant companies and had to recuse themselves. So the case went back to Sprizzo.
He would likely have dealt with the appeals court’s objections quite quickly. Though divided, the three-judge panel gave him clear enough instructions on how to bullet-proof his dismissal next time. Alas, the reaper intervened. Now it is up Judge Schiendlin to rule afresh on the defendants’ motion to dismiss. At a preliminary hearing last week she seemed inclined to go to trial. Legal history crooked a seductive finger.
The suit rests on the Alien Tort Claims Act of 1789. As its interpretation has evolved over the past quarter century, ATCA has been used by foreign nationals to seek civil redress in US courts for “torts”, or wrongs, they have suffered in their own countries. To be actionable under ATCA, the tort must entail a violation of international law or internationally accepted norms. The devil is in the definitions.
As a threshold matter, one might well protest – and former president Thabo Mbeki and his justice minister Penuell Maduna did indeed protest, the latter in a formal declaration to the court – that American judges have no business second guessing South Africa’s hard won settlement. Judge Schiendlin remains to be persuaded on that point, wondering whether Mbeki’s views might not be counterbalanced by those of Archbishop Desmond Tutu, who has endorsed the suit.
Of more consequence, ultimately, will be how she construes the phrase “aiding and abetting”. It is common cause that the apartheid government committed seriously bad acts. The appeals court ruled that the aiding and abetting of seriously bad acts is justiciable under ATCA. To what extent, then, did the defendants aid and abet? That depends on which definition the judge choses. The choice revolves around knowledge and intent.
At the hearing she 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. In the Zyklon B case, prosecutors did not even try to prove the defendants intended their insecticide to be used on people when the SS procured it. It was enough to convict them that they were aware of the customer’s agenda.
The Rome Statute of the International Criminal Court, which went into force in July 2002, sets a more stringent standard. To be convicted for aiding and abetting before the ICC, you must be shown to have acted “for the purpose of facilitating the commission” of a crime. IBM would be hard put to prove it did not know what its computers were being used for. However, Khulumani would be equally hard put to prove that IBM sold computers out of a malicious intent to eliminate Griffiths Mxenge.
For Khulumani , the case is less and less about winning reparations for people who feel they were shortchanged by Truth and Reconciliation. It is about putting the fear of God into corporations that do business in dodgy places. It is likely, therefore, that the list of defendants, once the size of a phonebook, will be triaged down to the juiciest fruit to eke out a win.
Khulumani’s cause would obviously be helped if the next South African government were to retract Maduna’s declaration and ask the US administration to join in supporting the suit. Whether South Africa’s cause would be much advanced is another question. Goodbye, miracle.