ABSTRACT

On Monday 12 May 2008 the US Supreme Court upheld a lower court ruling allowing a lawsuit seeking damages from companies that did business in South Africa during the apartheid era to proceed toward a trial. The Court ruled that three class actions could use the American legal system to sue approximately fifty international corporations who they believe ‘knowingly aided and abetted the South African military and security forces’. The case is the latest test of an eighteenth-century law, the Aliens Tort Claims Act, which ‘allows foreigners to use the US legal system to right international law violations’ wherever they may have been committed (Jagger 2008). One of the plaintiffs in this case is a set of South African human rights organizations called the Khulumani Support Group. Khulumani, an isiZulu word, means ‘speaking out’. The group was formed in 1995 by survivors and families of victims of the political conflict of South Africa’s apartheid past.1 Representing approximately 54,000 individuals, some 74 per cent of whom are unemployed, it was set up in response to the work done by the South African Truth and Reconciliation Commission (TRC 1999). Its proclaimed strategic aims include lobbying for redress on outstanding TRC issues, such as the prosecution of those who failed to apply for amnesty, in the context of the South African government’s:

A plethora of issues are raised by this case. They range from specific points of law to a much wider range of issues, including questions of reparation, responsibility and responsiveness, as well as the processes through which claims are constituted in and through political action. It is notable, for instance, that the invocation of an eighteenth-century law – the Aliens Tort Claims Act – has allowed this case to

be brought. This law, which originally aimed to help foreigners seek redress for issues such as piracy, is now increasingly being used to sue corporations for their alleged involvement in human rights abuses. It is, moreover, noteworthy that the US Supreme Court had to uphold a lower court ruling on procedural grounds, since four judges were disqualified because of their investments in some of the companies involved, or as a result of family ties. Of course, the legal and political consequences of this ruling are also far from clear. The US Solicitor General, Paul D. Clement, commented that the ruling ‘represents a dramatic expansion of U.S. law’. Other commentators suggested that the lawsuit could ‘harm the policy of reconciliation in South Africa’ and that it could ‘make U.S. companies reluctant to do business’ in South Africa (Barnes 2008). Most significantly, the ruling opens the way to hold corporations accountable ‘for aiding and abetting gross human rights violations’. In this respect it is arguably ‘the most critical test case globally for creating global standards for ethical corporate behaviour and for promoting a culture of corporate responsibility’ (Jobson and Abrahams 2008). Hence, the lawsuit could potentially alter the relationship between states, individuals and trans-national corporations with respect to human rights.