Apartheid reparations lawsuits (re So. Africa)

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In 2002 a group of South Africans, represented by the Khulumani Support Group, sued 20 banks and corporations in US federal court that did business in South Africa during apartheid.  The plaintiffs allege that the participation of the defendant companies in key industries during the apartheid era was influential in encouraging and furthering abuses against black Africans during that time.  The plaintiffs are victims of human rights abuses such as extrajudicial killings, torture and rape, and they allege that the defendants’ activities in South Africa during the apartheid era made them complicit in the commission of those abuses. 

The South African Government was opposed to this lawsuit, and it filed documentation with both the district court and appeals court publicly stating its position regarding the case.  A federal district court judge granted the defendants’ motion to dismiss in November 2004.  The plaintiffs appealed this dismissal in August of 2005.  In October of 2007, the appeals court reversed the lower court's dismissal of this case and remanded the case back to the lower court for further proceedings.  On 10 January 2008, the defendant companies petitioned the US Supreme Court for certiorari, asking the court to hear their appeal of the October 2007 decision of the US Court of Appeals for the Second Circuit.  In May 2008, the US Supreme Court declared that it could not intervene in this case because four of the nine justices had to recuse themselves for apparent conflicts.  Lacking the required quorum, the Supreme Court had no option but to uphold the decision of the Second Circuit Court of Appeals allowing the lawsuit to proceed.  On 8 April 2009, the federal district court issued a ruling in this case.  The judge's ruling narrowed the claims in the case but allowed the case to continue against Daimler, Ford, General Motors, IBM and Rheinmetall Group.  In September 2009, the South African Government announced its support of the lawsuit, withdrawing its previous opposition to the case. 

The South African Justice Minister sent a letter to the District Court judge informing her that the government believes the court to be the appropriate forum to decide this case.  In August 2013 the US Court of Appeals for the Second Circuit returned the case to the lower court and recommended dismissing the case, citing the US Supreme Court's limitation on extraterritorial application of the Alien Tort Claims Act in Kiobel v. Shell.  On 26 December 2013 the lower court issued an order dismissing Daimler and Rheinmetall from the case, but the court declined to dismiss the claims against IBM and Ford. In April 2014, the lower court ruled the plaintiffs could amend their complaints against Ford and IBM to provide evidence that the companies' activities "touch and concern" the territory of the United States. The judge said that in order to overcome the presumption against extraterritoriality set forth in Kiobel, the plaintiffs must show corporate presence plus additional factors. On 29 August 2014, the lower court judge dismissed the case finding that the plaintiffs had not shown a sufficient connection with the United States to warrant the case being heard in US court.

On 27 February 2012, the plaintiffs reached a settlement with General Motors.

- "Apartheid corporate lawsuit dismissed", Reuters, 29 Aug 2014
- "U.S. judge dismisses apartheid claims against 2 German companies", Nate Raymond, Reuters, 27 Dec 2013
- "High Court Decision Cited in Rejection of Apartheid Liability", Brendan Pierson, New York Law Journal, 22 Aug 2013 
- "US General Motors settles apartheid reparations claim", Adrian Ephraim, Mail & Guardian, 29 Feb 2012
- "State supports apartheid-era victims", Christelle Terreblanche, Cape Times [So. Africa], 3 Sep 2009
- "Judge Narrows Claims in Apartheid Torts Case Against Multinational Companies", Mark Hamblett, New York Law Journal, 9 Apr 2009
- "Court won't block U.S. lawsuit by apartheid victims", Mark Sherman, Associated Press, 12 May 2008
- “US court allows apartheid claims to go forward”, Paritosh Bansal, Reuters, 12 Oct 2007
- “Apartheid Victims Sue Global Corporations”, Alison Raphael, OneWorld US, 13 Nov 2002

- South African Minister of Justice and Constitutional Development Jeffrey Radebe: [PDF] Letter to Judge Shira Scheindlin regarding In Re South African Apartheid Litigation, 1 Sep 2009
- South African Minister of Justice and Constitutional Development Dr. P M Maduna: [PDF] Declaration of Minister Maduna to US District Court Judge Spizzo, 11 Jul 2003

- South African Minister of Foreign Affairs Nkosazana Dlamini Zuma: [PDF] Letter to US Secretary of State Colin Powell Re Apartheid Litigation, 16 May 2002

 

- Schonbrun DeSimone Seplow Harris & Hoffman LLP (plaintiffs’ co-counsel): case summary (includes links to legal briefs filed in this case)
- Hausfeld LLP (plaintiffs' co-counsel):  Khulumani v. Barclays National Bank Ltd. - Info Center
- Khulumani Support Group (plaintiffs): Khulumani Lawsuit in New York
- Khulumani Support Group: US Circuit Court dismisses apartheid litigation, 22 Aug 2013

- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 29 Aug 2014 [order dismissing the lawsuit]
- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 26 Dec 2013 [order dismissing Daimler & Rheinmetall from case]
- [PDF] Balintulo v. Daimler AG, US Court of Appeals for the Second Circuit, 21 Aug 2013
- [PDF] American Isuzu Motors, Inc., et al. v. Lungisile Ntsebeza, et al. - Brief for the United States as Amicus Curiae in Support of Petitioners, 11 Feb 2008 [brief of in support of dismissal of lawsuit]
- [PDF] American Isuzu Motors Inc. et al. v. Ntsebeza et al. - Petition for a Writ of Certiorari, 10 Jan 2008 [petition filed by the defendant companies at US Supreme Court]
- US District Court for the Southern District of New York: [PDF] In re South African Apartheid Litigation, 8 Apr 2009
- US Court of Appeals for the Second Circuit: [PDF] Khulumani v. Barclay National Bank, Ltd., 12 Oct 2007

 

Country: South Africa, USA

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Article
5 December 2014

Access to justice for victims of human rights abuses needs to be strengthened

Author: Sif Thorgeirsson, Manager, Corporate Legal Accountability Project, Business & Human Rights Resource Centre

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto,  Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

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Article
12 September 2014

Lawyer analyses US court decision in So. African apartheid case against IBM & Ford

Author: Michael Kourabas, TriplePundit

"The End of Apartheid Litigation and the Future of Corporate Accountability", 11 Sep 2014

The quest to hold corporations liable for alleged human rights abuses committed abroad was dealt another blow late last month when a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations...In a begrudging bow to current precedent...Judge Shira Scheindlin...denied plaintiffs’ motion to amend their complaint because they would be unable to meet the stringent demands of a test announced by the Second Circuit Court of Appeals earlier in the year...It seems, then, that all an American corporation has to do to protect itself from ATS exposure is ensure that, to the extent it engages in violations of international law in another country, it does so through a foreign subsidiary...As for Judge Scheindlin...“That these plaintiffs are left without relief in an American court is regrettable,” she wrote.  “But I am bound to follow [precedent]..."...

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Article
9 September 2014

Earth Rights Intl. - Analysis of decision in So. African apartheid Alien Tort case

Author: Marissa Vahlsing, Earth Rights International

"Justice Further Delayed in Apartheid Case", 04 Sep 2014

Last week..Judge Shira Scheindlin...dismissed a...case brought by black South Africans against U.S. companies IBM and Ford...But there was every indication that she did so reluctantly, and with regret...[S]he dismissed the Apartheid case, not because her personal view of the law compelled it, but because she had no other choice...[T]he federal courts have contorted the content and meaning of the Alien Tort Statute beyond recognition...In her decision...Judge Scheindlin wrote “[t]hat these plaintiffs are left without relief in an American court is regrettable. But I am bound to follow Kiobel II and Balintulo, no matter what my personal view of the law may be.”...Whatever does happen next, one thing is clear: the Apartheid plaintiffs have waited too long for justice. 

 

 

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Article
2 September 2014

Khulumani Support Group statement on dismissal of So. African apartheid litigation

Author: Khulumani Support Group

"US District Court Judge Scheindlin dismisses the Apartheid Litigation on grounds that the recent narrowing of the scope of application of the Alien Tort Statute now prevents claims that involve foreign subsidiaries of American corporations", 1 Sep 2014

After twelve years of sustained advocacy towards ending the impunity of transnational companies for aiding and abetting the perpetration of gross human rights violations in South Africa, through their collaboration with and provision of military and other strategic equipment to the security agencies of the apartheid regime, the presiding judge, Shira Scheindlin has ruled that ATS jurisdiction following Kiobel II no longer extends “to claims involving foreign conduct by foreign subsidiaries of American corporations.”… This particular setback comes at a historic point in a growing global movement seeking to end the impunity of multinational companies for corporate crimes. In June this year, the United Nations Human Rights Council moved for the building and adoption of a binding treaty to prevent human rights violations by transnational corporations. The Khulumani litigation has long pioneered efforts to secure accountability for corporate crimes...

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Article
1 September 2014

US court dismisses lawsuit against Ford & IBM alleging complicity in So. African apartheid abuses

Author: Reuters

"Apartheid corporate lawsuit dismissed", 29 August 2014

 A Manhattan federal judge has dismissed a 12-year-old lawsuit accusing Ford Motor and IBM of encouraging human rights abuses in apartheid-era South Africa, reluctantly concluding that the case does not belong in US courts…Judge Shira Scheindlin…said the black South Africans who brought the case did not show “relevant conduct” by Ford and IBM within the United States to justify holding the companies liable. The plaintiffs had accused Ford, IBM and other companies of having…aided South Africa's former apartheid government in abuses such as killings and torture… In April, Scheindlin…gave the plaintiffs one more chance, to meet the new [Alien Tort Claims Act] standards imposed by…higher courts. But in Thursday's decision, she said the bar proved too high, and that any alleged international law violations were by Ford's and IBM's South African units, and occurred abroad.

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Article
29 August 2014

In re South African Apartheid Litigation - Opinion and Order

Author: US District Court for the Southern District of New York

This case arises out of allegations that various corporations aided and abetted violations of customary international law committed by the South African apartheid regime. The remaining plaintiffs are members of two putative classes of black South Africans who were victims of apartheid-era violence and discrimination. Plaintiffs seek relief under the Alien Tort Statute (“ATS”), which confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 1 The remaining defendants…Ford…and…IBM…are American corporations accused of aiding and abetting violations of the ATS by manufacturing military vehicles and computers for South African security forces. Plaintiffs move for leave to amend their complaints. For the following reasons, plaintiffs’ motion is DENIED.

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Article
29 July 2014

US federal appeals courts issue conflicting decisions regarding extraterritoriality in Alien Tort lawsuits against CACI & Chiquita

Author: John Bellinger, Lawfare (USA)

"Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States", 27 Jul 2014 

...[F]ederal appellate courts have recently issued two significant, and potentially conflicting...decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision…[A] Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States…[A] split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by…Colombians against Chiquita…in connection with its alleged payments to paramilitary forces in Colombia [on the grounds that] “There is no allegation that…any other act constituting a tort…touched or concerned the territory of the United States with any force.”...[These] decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations…[Also refers to Archer Daniels Midland, Cargill, Ford, IBM, KBR, Nestlé]

 

 

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Article
19 April 2014

Kiobel Anniversary Surprise: Judge Scheindlin Rules Corporations May Be Held Liable Under ATS, Despite Second Circuit Precedents [USA]

Author: John Bellinger, Lawfare (USA)

…Judge Scheindlin held, in the long-running Apartheid litigation, that corporations may be sued under the Alien Tort Statute. Her decision directly conflicts…with the Second Circuit’s…decision in Kiobel (holding that corporations are not subject to liability under the ATS) but also with the Second Circuit’s post-Kiobel decision…in the Apartheid case (deciding that the ATS suits against the defendants in the Apartheid case were barred by the Supreme Court’s decision in Kiobel)…Judge Scheindlin authorized the plaintiffs to…amend their complaints against Ford and IBM …to provide evidence that the companies’ activities “touch and concern” the territory of the United States…Scheindlin agreed to dismiss the two remaining foreign corporate defendants — Daimler AG and Rheinmetall…Scheindlin finds that by concluding in Kiobel that “mere corporate presence” is not sufficient to overcome the presumption against extraterritoriality, the Supreme Court by necessity implies that “corporate presence plus additional factors can suffice...”...[Refers to Daimler AG, Ford, IBM & Rheinmetall]

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Article
17 April 2014

Ford, IBM to face renewed U.S. lawsuit over apartheid-era abuses

Author: Jonathan Stempel, Reuters

Ford Motor Co and IBM Corp will again have to face a U.S. lawsuit claiming they encouraged race-based human rights abuses in apartheid-era South Africa, despite...recent court decisions limiting...such cases... U.S. District Judge Shira Scheindlin in Manhattan accepted an argument...that corporations may be held liable under...the Alien Tort Statute (ATS)... "No principle of domestic or international law supports the conclusion that the norms enforceable through the ATS ... apply only to natural persons and not to corporations," Scheindlin wrote... [The] 2nd U.S. Circuit Court of Appeals...had said [the case] should be dismissed... The plaintiffs contended that by having made military vehicles and computers for South African security forces...[the] companies...had aided and abetted...[the] apartheid government in perpetrating abuses, such as killings and torture. The litigation seeks class action status, with potential damages in the billions of dollars. [Refers to claims against Daimler, Rheinmetall, General Motors that were dismissed; also refers to Kiobel v. Royal Dutch/Shell.]

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Article
4 April 2014

Corporate Accountability for Human Rights Violations in Countries in Transition

Author: Nadia Bernaz (Middlesex University), Rights as Usual

[A]t the 9 Bedford Row International Conference on “Human Rights in Post-Revolution States”... [m]y talk was on “Corporate Accountability for Human Rights Violations in Countries in Transition”. The area of corporate accountability and transitional justice is relatively under explored...I...present[ed] a selection of cases...to highlight the type of issues that are likely to arise when trying to hold corporations, or business people, accountable for human rights violations in countries that have transitioned from conflict to peace, or from authoritarian rule to democracy...Post World War II trials against industrialists and bankers in US zone of occupation in Germany; The South African Truth and Reconciliation Commission’s findings on business...; The Apartheid cases before US federal courts...; The Van Anraat case in the Netherlands; The ongoing Amesys and Qosmos cases in France...[W]here to draw the line between making profit by doing business with a criminal regime, and being criminally or civilly liable?..[U]nfortunately these cases provide no definite answers.

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