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THE movement for reparations against transnational corporations that profited from apartheid is finally making progress within the generally hostile US judicial system, using the Alien Tort Claims Act (ATCA) and public pressure.
Recall the complicated history, beginning in 1997, when Holocaust victims' descendants filed cases under the act against Swiss banks and German companies, and ultimately settled out of court for $1.25 billion (R12.5bn at the current rate of conversion).
Other ATCA cases settled out of court included opponents of the Myanmar junta who sued the collaborating oil firm Unocol, and Chinese democracy activists who punished Yahoo! for turning over private information to Beijing security officials.
In 2002, South Africans including Professor Dennis Brutus of the University of KwaZulu-Natal's Centre for Civil Society, lawyer Lungisile Ntsebeza, the Khulumani Support Group for apartheid victims and Jubilee South Africa, used the act to sue dozens of multinational corporations operating in South Africa during apartheid.
Because the Bush administration persuaded then president Thabo Mbeki to oppose the plaintiffs in mid-2003, New York Southern Circuit Judge John Sprizzo ruled the case in favour of the corporate defendants in November, 2004. Sprizzo ignored amicus pleas by Archbishop Desmond Tutu and economist Joe Stiglitz.
However, three years later, in October, 2007, the activists won an appeal in the Second Circuit Court, which found that in this Circuit, a plaintiff may plead a theory of aiding and abetting liability (for international crimes such as apartheid) under the ATCA.
The corporations had bet on the active collaboration of former minister of justice Penuell Maduna. Their joint memorandum filed last year drew sustenance from Maduna's declaration opposing litigation, and was later resubmitted by his successor, Brigitte Mabandla (subsequently shifted to the Ministry of Public Enterprises). It stated: Like her predecessor, the current minister maintains that the responsibility to address the country's apartheid past… lies with the South African government and not foreign courts.
Oppose After leaving Mbeki's cabinet, Maduna became the apartheid corporations' main Johannesburg representative, working with Peter Leon. He claimed to oppose the reparations lawsuit to protect national sovereignty and what Mbeki termed judicial imperialism.
Yet Maduna had taken up this cause only in 2003 as a direct result of a letter from then US secretary of state Colin Powell requesting him, ironically, to invoke SA sovereignty.
Despite active Khulumani lobbying, the post-Mbeki government has failed to overturn official state support for the same corporations they had demanded leave South Africa 20 years earlier, reflecting the innate conservatism of President Kgalema Motlanthe and ruling party leader Jacob Zuma.
Nevertheless, the hearing last month - in front of Judge Shira Schiendlin, not Sprizzo, who died in December - seemed to open up a new trajectory.
Late last year, Khulumani lawyer Michael Hausfeld honed down the case from nearly three dozen firms that profited most from apartheid, to nine that are charged with having served the country's security forces in implementing repression.
The strategy increases the likelihood of a formal trial by jury this year, if the corporations' appeal to dismiss is rejected by Schiendlin, as is now anticipated.
Leading pro-business commentator Simon Barber wrote in Business Day last week that Schiendlin 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.
He hopes that instead, Schiendlin adopts the 2002 International Criminal Court's Rome Statute definition of aiding and abetting such crimes, a more stringent standard. Ultimately, Barber believes, the case is less and less about winning reparations for people who feel they were shortchanged by the Truth and Reconciliation Commission.
It is about putting the fear of God into corporations that do business in dodgy places.
Critiques of malevolent firms and even colonial-era states are intensifying. Other cases include claims by the Herero people against Germany for genocide carried out in what is now Namibia from 1904-08, and Alien Tort Claims Act cases against oil firms which have despoiled the Niger Delta.
The case Bowoto versus Chevron was heard in San Francisco last November, with Chevron acquitted by a district court in a jury trial. The case originated a decade earlier, when Nigerian armed forces working with Chevron security killed two unarmed Ilaje community members engaged in a sit-in at the firm's Parabe Platform. Others were permanently injured and tortured by the military.
In February, Chevron - whose record profits last year amounted to $23.8bn - rubbed salt in the Ilaje people's wounds by seeking reimbursement of $485 000 in legal fees for the case.
Justice in Nigeria Now is the Ilaje people's representative in the US, and their lawyer, Bert Voorhees, remarked of Chevron: They are trying to bring this cost bill as a warning to any other folks who might seek justice.
The case was lost again on appeal on March 4 in a California district court, but Voorhees plans another appeal.
Abuses Another case involves the Movement for the Survival of the Ogoni People, whose leader, Ken Saro Wiwa, and eight other Ogoni activists were executed by the Abacha regime in November, 1995. Shell was kicked out of Ogoniland in mid-2008, and Wiwa's son, Ken, is taking Shell to the New York courts for complicity for human rights abuses: summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional distress.
Ecological reparations activists were cheered when a global warming lawsuit was settled out of court last month by Friends of the Earth, Greenpeace and the cities of Boulder, in Colorado, and Arcata, Santa Monica, and Oakland, in California. Their targets were the US Export-Import Bank and Overseas Private Investment Corporation, which invested, lent or insured $32bn in fossil fuel projects from 1990-2003 with no regard for the US National Environmental Policy Act.
The defendants agreed to important concessions in the settlement, rather than monetary damages; both will incorporate carbon dioxide emissions into future planning. Eskom, Sasol, Transnet, mining houses and smelters, take note!
While the ecological debt doctrine continues to be built, there is interest in the contestation of Illegitimate and Odious Debts associated with African dictatorships, as a conference sponsored by the African Debt and Development Network in Johannesburg will consider next week.
In the wake of Ecuador's debt default in January, this appears to be a promising grass-roots pressure discourse, since so many African countries have residual or historic debts associated with the financing of dictators by Western governments and banks, including Zimbabwe.
Civil society activists are wary of courts, which often reproduce social and corporate power. However, the Treatment Action Campaign's successful fight against Mbeki in the Constitutional Court and the Coalition Against Water Privatisation's defeat of Joburg Water last April generated new confidence.
What they must do, however, is continue the mix of social pressure - tree-shaking - and the power of the courtrooms - jam-making - to ratchet up the threat to corporations guilty of extreme exploitation.
# Patrick Bond is the director of the UKZN Centre for Civil Society
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