Back Into the Heart of Apartheid Darkness

Judge Shira Scheindlin of the Federal District Court for the Southern District of New York has spared President-soon-to-be-elect Jacob Zuma some trouble. She will not be seeking his opinion on the six-year-old lawsuits now before her which rely on the only-in-America Alien Tort Claims Act to extract reparations for apartheid from such household names as Daimler, IBM and General Motors.

Denying in part and granting in part the defendants’ motion to dismiss, Scheindlin on April 8 rejected the plaintiffs’ request that the South African and US governments be asked to resubmit their views.  The Mbeki administration had been hostile to the idea of US courts usurping the right of South Africa’s democracy to deal with the past on its own terms. The Bush administration urged deference to that position.

The plaintiffs – two sets, one named after the Khulumani Support Group, the other after advocate Dumisa Ntsebeza – were hoping the Zuma and Obama administrations might be more sympathetic towards what former President Mbeki considered US judicial imperialism.

Scheindlin ruled that it did not matter what either government thought. The US Supreme Court may officially have favoured acceding to the White House on the apartheid cases. That was merely guidance, the judge thought, “not a mandate for dismissal”.

Greater weight she accorded to briefs from Archbishop Emeritus Desmond Tutu and Nobelist Joseph Stiglitz, the former World Bank economist.  The plaintiff companies had not cooperated with the TRC, Tutu argued, and were not eligible for amnesty. Nothing, therefore, precluded victims seeking redress from them wherever they could find it; to the contrary, they should be encouraged.

As for Stiglitz , the judge was “persuaded by (his) forceful rejection” of the argument, advanced by  Mbeki and his justice minister, Penuell Maduna,  that the suits, if successful, would deter foreign investment. Scheindlin paraphrased Stiglitz’s theory thus:  “Suits seeking to hold foreign companies accountable for their unlawful collaboration with a prior regime will not discourage foreign investors from investing in that country in the future.”

Assuming the Supremes ultimately let pass Scheindlin’s undeferential approach to their guidance, the judge has pruned the lawsuits, and the previously baroque list of defendants, into plausible and maybe even winnable shape.

In ruling on the defendants’ motion to dismiss, she has agreed to hear, and shown some sympathy for, the following allegations:  that Daimler, Ford and General Motors  aided and abetted  “torture, cruel, inhumane and degrading treatment, extrajudicial killing, and apartheid” ;  that IBM aided and abetted “arbitrary denationalization and apartheid” ; that Rheinmetall, German parent of Swiss arms maker Oerlikon, aided and abetted “extrajudicial killing and apartheid”; and, if the Khulumani plaintiffs tighten up their claims, that Fujutsi, the Japanese computer firm,  aided and abetted “apartheid”.

Scheindlin has concluded that everything in quotation marks in the preceding paragraph represents a violation of “customary international law” and thus meets the definition of “torts” justiciable in US federal courts under the Alien Tort Claims Act, wherever, and against whomever, they may have been committed. There is unlikely to be much argument on that.  The question, as the judge has now posed it, is whether the remaining defendants “aided and abetted” said torts.

Her somewhat circular definition: “I conclude that customary international law requires that an aider and abettor know that its actions will substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations.” So the scene is set for a journey back into the heart of South Africa’s historical darkness to discover who knew what, when.

Do we really want to take this trip? It is delusional to think that President Obama, any more than President Bush, is going to endorse a legal doctrine that makes US companies liable for every rotten thing that has ever happened in the rest of the world.

How many American taxpayers are going to thank Khulumani and Ntsebeza for trying to extract cash from GM or Ford, least of all in Detroit, which is currently feeling 30’s-style depression?  I’m in the business of smashing negative stereotypes about SA. When I tell people SA builds Mercedes-Benzes – that’s Daimler – for the world, a lot of scales fall from a lot of eyes. You want to mess with that?

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