Jaco Barnard-Naudé – A response to Prof Kader Asmal

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.

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