January 18th, 2010:

A response to Prof Asmal’s view on the reparations case

Jaco Barnard-Naudé 

Prof Kader Asmal’s erudite opinion (avaliable here) on why the Apartheid reparation cases should not be heard in the United States but rather return to South Africa illustrates exactly how legally unaccountable entities with separate legal personality are internationally for their complicity in crimes against humanity: customary international law does not apply to them, the United Nations conventions against Apartheid do not apply to them and the Rome Statute does not apply to them.

This is why Prof Asmal can make the claim that ‘[t]he plaintiffs in this case are not automatically right because they were oppressed during the apartheid years, and the defendants are not automatically wrong by virtue of the fact that they are international corporations.’ That might be the case under international customary law but the court still has to decide the issue and Prof Asmal and his colleagues’ position is not an uncontested one in law.

In addition, the fact that historically no precedent exists in international customary law for corporate liability for crimes against humanity does not foreclose the possibility that the precedent may be set in this case. We no longer live in the time of the Nuremberg trials – all over the world corporations are facing stringent curtailments and liabilities founded in social responsibility.

Let me return to Prof Asmal’s claim that the defendants are not automatically wrong because they are international corporations. That is absolutely true – there is nothing per se morally or legally wrong about being an international entity with separate legal personality. But wrongness is also a moral category and the reason why the defendants in this case are wrong is not because they are corporations but because they aided and abetted in the perpetration of a moral wrong that the law recognises internationally as a crime against humanity.

The reason why the plaintiffs are right is because they are (some of) the human beings against whom this crime was perpetrated. ‘Aided and abetted’ means, in this case, that business actively supported the Apartheid government in its system of oppression. I am certain that Prof Asmal remembers PW Botha’s ‘Total Strategy’ program – apartheid South Africa’s response in the late 1970’s to the securocratic perception that it was the target of a total communist onslaught. Total strategy was defined as a ‘political-business-security’ alliance – an alliance which business, but for a few dissenting voices, embraced because it made business sense to do so. When Total Strategy was implemented the United Nations International Convention on the Suppression and Punishment of the Crime of Apartheid, which condemned apartheid as a crime against humanity, had already been passed.

But what about the point that customary international law during the time of Apartheid did not contain a rule that rendered companies liable and that doing so now would amount to a violation of the principle that laws are not to apply retrospectively? The fact is that, in the context of the crime against humanity, this principle is not sacrosanct. Prof Asmal will remember the controversial ‘Grudge Informer’ cases in Germany after the Holocaust where actions that were explicitly legal when they were committed were subsequently punished as unlawful. These matters illustrate that law is not all there is when it comes to judging and that the relationship between law and politics is tenuous at best.

The suggestion that the reparation cases against big business should return to South Africa is interesting, given that the government ignored the TRC’s recommendations that big business be held accountable through, for instance, a once-off wealth tax. This decision of the Mbeki government is precisely one of the reasons why the plaintiffs have resorted to a foreign jurisdiction. Of course it is true that companies could theoretically be held liable under South African criminal law for aiding and abetting in a crime. But Prof Asmal does not mention the considerable evidentiary, jurisdictional and sentencing – ie practical – issues that are involved in this kind of process. He also does not mention that the crime in this case is one for which a perpetrator could receive amnesty at the TRC and one for which pardons are considered. Surely, if corporations are persons too they should have also been allowed to apply for amnesty.

But hang on, that would require an admission of having aided and abetted in the crime – which the corporations deny they did. So how does one solve the injustice? Perhaps reopen the amnesty process for corporations and if they don’t apply prosecute them? Given the rate at which prosecutions against perpetrators who did not receive TRC amnesty is proceeding, I have a feeling that the government would have something to say about the already over-strained, considerable state resources that would be required for holding big business legally accountable here.

Jaco Barnard-Naudé is associate professor of jurisprudence in the law faculty at the University of Cape Town.

NO IMMUNITY FOR MULTINATIONALS IMPLICATED IN APARTHEID’S CRIMES

Michael Osborne (published today in the Cape Times)

Last week, a New York Court heard argument on an appeal by five multinational corporations against a 2009 ruling in which a trial court gave the green light to a suit filed by South Africans who suffered injuries at the hands of sanctions-busters they allege aided and abetted the apartheid government. Plaintiffs say the multinational corporations provided military hardware and computer technology, and that they collaborated with security forces to put down anti-apartheid and labour protests at their plant in East London and Port Elizabeth.

The lower court’s decision was a breakthrough in the application of an American federal statute that gives courts jurisdiction over defendants implicated in the violation of fundamental international human rights norms anywhere in the world. Ford, GM and Daimler, which provided custom-made armoured vehicles to the security forces were, said the judge, undoubtedly aware of the crimes of apartheid.

Noting plaintiffs’ allegation that IBM provided race-based identity documents that stripped black South Africans of their nationality and citizenship, she wrote: “Wilful blindness in the face of crimes in violation of the law of nations cannot defeat an otherwise clear showing of knowledge that the assistance IBM provided would directly and substantially support apartheid.” And she rejected Daimler’s claim that “it was a duty of all South Africans” to support the security forces.

One of the issues argued before the appellate court last week was whether corporations may in principle be liable for crimes committed against international law. One of the world’s most distinguished international lawyers, South Africa’s John Dugard (who wrote, together with other renowned experts, as a friend of the court), said the traditional view – that only states and individuals could be liable for human rights abuses – was outmoded. Every jurisdiction in the world now accepts the principle of corporate criminal liability, in one form or another.

The classic civil law doctrine, that only individuals may be criminally responsible, lies dead and buried. Moreover, many international treaties envisage corporate liability. And experts in the field almost unanimously insist that multinationals should not be permitted to flout human rights laws with impunity. But one group of international lawyers took a contrary position last week. Among those who put their name to an opinion to that effect was Professor Kader Asmal. Last week, he wrote an article in the Cape Times (Why I oppose the Lawsuits Against the Multinationals, January 14, 2009), defending his decision to join the controversial opinion. Professor Asmal says he did not take sides.

But he did.

The document to which he put his name says in so many words that the signatories support the multinationals’ request that the apartheid lawsuit be thrown out. If that argument wins the day, the Apartheid Litigation is dead in the water. What is surprising about Professor Asmal’s view is that it flies in the face of commitments for which he has passionately and eloquently argued. In 2007 he told a Johannesburg conference that it was time to “move away from the idea that the state is the only one accountable for enforcing human-rights,” and that corporations need also to take responsibility.

The trouble with Professor Asmal’s new view is that it would allow multinationals to violate human rights with impunity, so far as international law is concerned. Of course multinationals want to have their cake and eat it too; they are more than willing to be subjects of international law when seeking protection against expropriation. Suppose Al-Qaeda were to formally incorporate itself as a limited liability corporation. If Professor Asmal is right, that would automatically buy it immunity.

Notably, the Security Council has in any event declared that international terrorist organisations, (including Al-Qaeda), may be held criminally liable as a matter of international law. Professor Asmal concedes that “it may be desirable one day in the future for companies to be held liable for violations of international customary law.” But, he adds, “international law is not what one wishes or hopes it to be.” Because. during the 1970’s, 80’ and early 90’s, the law did not treat corporations as liable under international law; it would be unfair to punish them now for aiding and abetting apartheid.

Quite apart from what I have already said, there are two problems with Professor Asmal’s view – both of which he has himself highlighted in the past.

First, international law is not averse to retrospective application of emergent norms, in the cases involving the most serious abuses. As he wrote in a 2005 article, the Nuremberg Principles forbade ”aiding and abetting of crimes against humanity, war crimes and crimes against peace.” But three of the four charges levelled against the Nazi defendants did not exist before Nuremberg: conspiracy to wage aggressive war, crimes against peace, and crimes against humanity. This did not stand in the way of punishment of atrocities that shocked the conscience of the world. Second, as he notes in the same article, racial discrimination as state policy was as early as 1970 considered by the United Nations to be in violation of jus cogens, the most fundamental of international norms.

The International Law Commission of the UN in a 1982 report suggested that there was an obligation to refrain from supporting conduct constituting an international crime – which apartheid had been declared to be. In 1975, the General Assembly had condemned the South African regime as illegitimate. In 1977, the Security Council imposed a binding arms embargo. It is quite true that none of these instruments expressly impose obligations on corporations. But it is ironic that Asmal now latches onto that fact. In so doing, he adopts what in 2005 he scorned as an “orthodox and conservative approach.” He wrote then that the UN had played an important role in ensuring that international law is “not solely concerned with states but that individuals and other entities can also be the bearers of rights and responsibilities.”

Implicit in Asmal’s new approach is the traditional common law theory of law, as a backward-looking and (literally), conservative enterprise. Law and morality are viewed as belonging to separate spheres; morality may in the long term guide legal development — but only by way of tiny increments. Professor Asmal has in the past embraced a more progressive vision of law, which sees it is a flexible, dynamic system. Law and political morality may not be synonymous, but the latter is always orienting and shaping the latter. This is the transformative orientation; long articulated by Professor Dugard, that underpins our Constitution.

Progressive jurisprudence is no less a feature of contemporary international law, which is no longer narrowly descriptive in character. At its heart lie normative aspirations that propel international law towards vindication of a just global order. The aspirations are oriented by the principles of equality, fairness and democracy reflected in the 1948 United Nations Charter, and in numerous treaties and declarations in the 60 years since then. (In 2005, Asmal wrote inspiringly of a “new international law,” which was a “law discernable from the progress of humanity, not an obsolete law”.)

One part of the development of international law in the past century has been the expansion of the international rights to project individuals, and, for that matter, corporations. The other side of the coin has been the extension of international responsibility. States have always been the primary subjects of international responsibility. At Nuremberg, it became clear that individuals could also be liable. Since then, the responsibilities of corporations for international crimes has crystallised.

Professor Asmal offers another reason that the Apartheid Litigation is misconceived. He suggests that South Africa’s “sovereign interests” demand that the claims of apartheid victims not be heard in New York. In this, he echoes the position of Mr Mbeki’s government, and of the Bush administration. Significantly, both governments, under Presidents Zuma and Obama respectively, have now reversed that position. In any event. neither Mbeki, nor Asmal, nor Bush, could explain how it undermines South Africa’s sovereignty for a federal court in New York to hear suits against American companies. In fact, if press reports, that Daimler has hinted that its decision regarding production of its C-Class vehicles in South Africa may hinge on the government’s posture in the litigation, are true, that would smack of economic blackmail that is indeed an affront to South Africa’s sovereignty.

Professor Asmal ignores the fundamental principle that a person injured by the actions of another may pursue him all the way to his home jurisdiction. The House of Lords ruled that South African miners injured in asbestos mines could sue the British holding company in the UK. Recently BP and Shell agreed to pay millions of dollars to Nigerian activists that sued them in New York for collaboration with brutal repression. And now, Iraqis injured by American private security companies are taking them on in U.S. courts. On Professor Asmal’s approach to the legal implications of national sovereignty, none of these suits could be heard in British and American courts.

The outcome of last week’s appeal may not be known for a matter of months. But in the meantime, the statute invoked by the apartheid plaintiffs has already inspired multinationals to add human rights audits to their due diligence checklist. No matter how the appellate court rules, multinational corporations, stripped of their immunity from global justice, will in future be more hesitant to collaborate with regimes that ride roughshod over the most fundamental human rights. That, I am sure, Professor Asmal will warmly welcome. Michael Osborne represents the Ntsebeza plaintiffs in the Apartheid Litigation in New York, in his capacity as a member of the New York Bar.