[Ip-health] Joint Press Release: US Circuit Court Dismisses Apartheid Litigation

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Thu Aug 22 08:34:28 PDT 2013

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On Tuesday, 21 August 2013, the 2nd Circuit Court of Appeal dismissed
the South Africa Apartheid Lawsuit.

The basis of the dismissal was the argument that “the Alien Tort
Statute does not reach the extraterritorial conduct in this case”, a
judgment of the US Supreme Court of Appeals in the Kiobel v Royal
Dutch Petroleum Co. case, handed down in April 2013. After the Kiobel
judgment, US-based companies may no longer be held accountable for
human rights violations that did not take place within the United

The dismissal comes more than ten years after the cases were first
filed in a New York District Court in November 2002. The South Africa
Apartheid Litigation sued corporations with significant US-based
operations, for their direct support to the apartheid security
agencies. These corporate defendants had either directly or through
their South African subsidiaries provided the equipment used by the
South African Apartheid security agencies in committing violations of
customary international law.

The lawsuit charged the identified companies with aiding and abetting
the perpetration of extrajudicial killings, torture, prolonged and
arbitrary detention, indiscriminate shooting, rape and the racial
classification of the people of South Africa that determined their
life prospects over decades. The corporations that stood charged of
their complicity in the perpetration of these apartheid crimes
included Ford Motor Company, General Motors Corp., Daimler AG,
International Business Machines Corporation, Barclays Bank, United
Bank of Switzerland, Fujitsu and Rheinmetall amongst others.

“We are deeply disappointed by the decision of the 2nd Circuit Court
of Appeal, though, in light of the Kiobel decision, it was to be
expected,” said Ms. Shirley Gunn, board member of Khulumani Support
Group, the national membership organisation of victims and survivors
of apartheid gross human rights violations.

South African attorney for the claimants, Charles Abrahams has said,

“Notwithstanding its dismissal, the Apartheid cases have contributed
to the development of international law related to processes of
holding corporations accountable for gross human rights violations.
Corporations are increasingly aware that any human rights violations
as a result of their operational conduct could attract international
law liability.”

“The dismissal of the cases, after so many years, once again leaves
open and unresolved, the unfinished business of the Truth and
Reconciliation Commission,” said advocate Dumisa Ntsebeza, former
Truth and Reconciliation Commissioner.

“Organised business has yet to account and take responsibility for
their role during apartheid. They have a crucial role to play in
helping to close the gap between the haves and the have-nots”, said
Marjorie Jobson, national director of Khulumani Support Group.

“Many claimants have since died without receiving a cent. Only
General Motors, made a small contribution to which we’ll now use to
set up an Apartheid Reparations and Rehabilitation Trust Fund for the
benefit of the claimants,” said John Ngcebetsha and Ms. Medi
Mokuena, attorneys for the claimants.

The latest decision highlights limitations in international law to
hold transnational corporations accountable for complicity in the
perpetration of gross human rights violations. In South Africa, the
focus returns to the failures of the South African government to
adequately and effectively deal with the provision of an inclusive
programme of reparations to all victims and survivors of apartheid
gross human rights violations – something that the South African
government claimed it was competent to provide in their original
opposition to the South Africa Apartheid Lawsuit.

All those disappointed by this latest development, expect delivery on
these assertions by the South African government.
Read on our website:  http://tinyurl.com/q9o762m

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