Global Policy Forum

By Norman Reynolds

The Khulumani Support Group's reparations case under the Alien Tort Claims Act of the USA, along with the other 'apartheid' cases, was thrown out on September 29, 2004 by a conservative New York judge. He found that there was no violation of the law in commercial links with South Africa - an action that has drawn criticism from the South African Human Rights Commission. Amongst the cases thrown out was the troublesome case initiated by Ed Fagan, in which he had demanded that the South African Government and companies should pay into a $20 bn "humanitarian fund".

The Khulumani case is being taken on appeal in a process that will demand that the merits of its case are more carefully reviewed and discerned. The case is viewed in the international human rights movement as the strongest case yet in enforcing international norms in respect of the behaviours of foreign multinational companies.

The Khulumani Support Group represents both the victims of apartheid who told their stories to the Truth and Reconciliation Commission (TRC) and the even larger group of survivors of gross human rights violations under apartheid who did not manage to engage with the TRC process.

The Khulumani case has survived several attempts to have it destroyed. One such attempt was the request by a number of multinational corporations, supported by several governments, including the American and British, to the United States Supreme Court not to allow foreigners to file lawsuits in America for human rights violations committed elsewhere in the world. However, on 29 June 2004, the United States Supreme Court, in the case of Sosa v Alverez, held that foreigners could use the Alien Tort Claims Act to institute lawsuits in the United States for human rights abuses wherever they may be committed in the world.

The Court held that "today the door is open to a narrow class of international norms" for litigants to institute lawsuits under the Alien Tort Claims Act. The Court observed, "It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals." The court saw that the statute was intended, from the time of the Founding Fathers of the USA, "to have a practical effect the moment it became law." This judgment represents a significant victory for human rights globally and a milestone in the progress of the Khulumani International Lawsuit.

What are the merits of the Khulumani lawsuit? While other 'apartheid lawsuits' sought 'open-ended' redress for all black South Africans born in the country between 1948 and 1994, the Khulumani lawsuit, rather, seeks limited individual, tailored relief for identified victims from private actors - those foreign multinational corporations which violated international law and were involved in colluding with the apartheid state's security apparatuses. With the support of these corporations, the apartheid government committed extra-judicial killing, torture, sexual assault, prolonged arbitrary detention, and multiple crimes against humanity.

It is time South Africa - government and business - treated it fairly. It represents a positive opportunity for both. Khulumani has emerged as a world leader in the struggle to advance international human rights jurisprudence - a fact that many individuals of stature and many international human rights organisations have recognised, amongst them are former Archbishop Desmond Tutu and Nobel Laureate economist Joseph Stiglitz.

The Khulumani lawsuit is highly significant in terms of international human rights law, in particular in the advance of international customary law and the creation of a world of greater social fairness. That is why it is lodged in New York, a city that houses both global corporations and the United Nations. It is a vital test case to ensure that any person anywhere in the world who is violated by a government or a multinational business would have access to redress.

Will our media assist all South Africans to understand the importance of the Khulumani lawsuit in this struggle for justice? Could the entire country, led by our President and by business leaders committed to corporate social responsibility, embrace this struggle and in so doing recognise the legitimacy of the Khulumani Support Group's lawsuit?

International business was pleased by the submission of the former Minister of Justice to the presiding judge as that did not distinguish between the different "apartheid" cases. Their pleasure has been misguided. Government claimed that these cases would impede the foreign investment that is still needed to redress the legacies of apartheid. In truth, it may well be that by upholding the right of Khulumani to seek redress from those companies that broke international sanctions and knowingly aided the apartheid regime, government would build greater certainty in investors and business. As Joseph Stiglitz has pointed out, "addressing corporate misconduct brings confidence to consumers and markets, creating a more positive business climate - genuine foreign investors are attracted to conditions of stability where social justice and good political, economic and corporate governance prevail."

President Mbeki has stated that the South African government is not and will not be a party to litigation against corporations that benefited from the Apartheid system. Nonetheless, at the tabling of the TRC final report, he noted that, "the Government recognizes the right of citizens to institute legal action."

President Mbeki now has the opportunity take the 'higher ground' and clarify or correct the affidavit previously submitted by our government to the New York court. Such a clarification should distinguish the Khulumani case from the others and support the right of redress to American courts for all those who become the future victims of bad governments and criminal businesses. After all, the Khulumani lawsuit strengthens South Africa's constitutional democracy by acknowledging the supremacy and universality of an international rule of law that obligates adherence to behaviours that respect basic human dignity. The Khulumani lawsuit does not seek any action that is inconsistent with government's approach to achieving its own long-term goals, including programmes of community reparation and rehabilitation.

It is also time for South African Business to come out into the open and tell South Africans and the world that it is confident of itself and its practices, that it endorses the domestic TRC process that lies behind the Khulumani case, and that it stands tall for human rights and the redress of abuses worldwide.

As Justice Albie Sachs pointed out in his keynote address at the Human Rights and Democracy Awards ceremony in Johannesburg on December 10, 2004, South Africa represents one "shining star" in a global human rights community pervaded by an overwhelming sense of gloom as atrocities continue to be perpetrated in Sudan and Zimbabwe. In South Africa, he said, we have seen "the coming together of the best in all of us". But he also reminded the gathering that the challenge is the ongoing construction and deepening of our democracy. The Khulumani International Lawsuit presents an important opportunity to do this. What better way to present our morally ambitious country as courageous, organised and united? Good things can only follow both domestically and globally.