Unfinished business: reconciling the apartheid reparation litigation with South Africa's Truth and...

7/24/2019 Unfinished business: reconciling the apartheid reparation litigation with South Africa's Truth and Reconciliation Co

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Unfinished business: reconciling the apartheid reparation

litigation with South Africa's Truth and Reconciliation

Commission.

I. INTRODUCTION II. PART I: THE STRUCTURE AND INTENT OF SOUTH AFRICA'S TRC A.Historical Context B. Structure--An African Conception of Justice? C. The Nature of Reparations

Recommended by the TRC D. The TRC's Approach to AmnestyIII. PART II: CORPORATE

PARTICIPATION IN THE TRC A. The TRC's Approach to Corporations B. A Performance with

"Glaring Absences" C. An Unfulfilled Promise IV. PART III: THE ALIEN TORT STATUTE (ATS)

AND THE APARTHEID REPARATION LITIGATION A. The Evolution of the ATS B. Actionable

Claims under the ATS and the Apartheid Reparation Litigation C. Remedial Characteristics D.

The Limit of Corporate Complicity Under the ATS V. CONCLUSION

I. INTRODUCTION

In 1993, having spent the entirety of their adult lives fightingSouth Africa's apartheid regime,

Nelson Mandela and the leadershipof the African National Congress (ANC) were presented with an

uneasyproposition. In exchange for conditional grants of amnesty for many ofthe most ruthless

perpetrators of apartheid aggression, the white rulingNational Party (NP) would agree to a power

sharing arrangement with theANC--the first step towards fully democratic elections in a country

withmore than seventy percent black voters. The ANC's decision, and thecourse that South Africa

has charted since, is now well known. Ratherthan attempt to satiate any desires for retribution,

South Africa wouldpursue a course of reconciliation. Whites, as well as blacks, would bewelcome

to remain, and to participate in the founding of a fullyinclusive new democracy--a "rainbow nation."

(1)

One method the South African leadership chose to facilitate thispeaceful transition was the Truth

and Reconciliation Commission (TRC).Broadly speaking, the Commission was intended to provide a

pathway bywhich to achieve forgiveness while also ensuring that victims wereprovided a degree of

truth and the opportunity for reparations. As iscommon in many historical circumstances of state-

sponsored violence,enabling victims to share their stories and uncover the truthfacilitates a process

of healing, and restores a level of dignity tothose who suffered. The result, as advocates of the TRC

assert, is thata degree of forgiveness can then take place, and the urge forretribution or violence

dissipates.

Although the TRC facilitated a degree of common understanding,almost two decades later, South

Africa remains a nation of extremeinequality. The unofficial unemployment rate is approximately

forty-twopercent, (2) and in 2009, South Africa overtook Brazil as theworld's "most unequal

country" in economic terms. (3)Fueled in part by the lack of economic progress, and also by

leftoverfrustrations regarding the methodologies of the TRC, some South Africanshave pursued

alternative methods of repairing the economic gap andaccessing justice. In 2002, a large group of

South African plaintiffsbrought suit against twenty corporate defendants that were

conductingbusiness in South Africa during Apartheid. (4) The plaintiffs allegethat these

corporations were complicit in a range of human rightsabuses, including "killings, torture and

rape." (5) The legalvehicle that the plaintiffs used was the Alien Tort Statute (ATS), astrategy that

that has become somewhat controversial in the domestic andinternational legal arenas. The ATSexpressly enables aliens that havebeen victims of an international human rights abuse in violation

of thelaw of nations to bring civil actions in U.S. federal courts. (6) Therange of violations which


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fall under the Statute's purview arenarrow, but it has become a potent tool for human rights

litigators. (7)

The case against these corporations (herein, the "ApartheidReparation Litigation"), has received a

wide array of criticisms.(8) A common subtext, however, runs through many of the attacks.

Theissue of Apartheid, critics assert, has already been resolved by SouthAfrica domestically--the

TRC has run its course, and it achieved thepeaceful transition to democracy that it was intended to

achieve. Thetrajectory of this argument is well captured by a 2008 speech made byJohn Bellinger,

the Legal Adviser to the Secretary of State underPresident George W. Bush. "Imagine," Bellinger

asks,"what the U.S. reaction would be if a Swiss court sought toadjudicate claims brought against

U.S. government officials orbusinesses for Jim Crow--era racial restrictions, or ... even forslavery."

(9) Aside from the sovereignty considerations, he arguedthat the "United States has come to terms

with and sought to remedythe effects of slavery and Jim Crow laws through domestic

measures....From the South African perspective, the apartheid case must look verysimilar." (10)

South Africa, in other words, has put this uglinessto bed. Digging it back up now, as another

scholar suggests, would"subvert what the Truth and Reconciliation Commission sought

toachieve." (11)

In light of these criticisms, a closer re-evaluation of theintentions behind South Africa's Truth and

ReconciliationCommission is instructive. A thorough review of the history andstructure of the TRC,

the nature of corporate participation in the TRC,and also the narrow realm in which the ATS can be

applied, reveals thatdespite the criticisms, the Apartheid Reparation Litigation is, in fact,consistent

with the intentions and design of South Africa's TRC.(12) Although some have argued that the TRC

failed outright to achieveany form of justice, (13) this analysis does not follow that vein oflogic; nor

does it attempt to transpose one form of justice on another.Instead, the analysis herein argues that

the TRC was conscious of itsown limitations and intended for other avenues of pursuing justice to

beavailable. In short, with regards to the TRC's hearings and thesubsequent Apartheid Reparation

Litigation, the Commission intended thatthere be room for both.

The stakes in the ongoing litigation are high. For the defendants,the economic risks are substantial

(some anticipatory reports place thedamage figure "in the billions"). (14) It is also, however,

anopportunity for some entities to prove that they were not complicit inApartheid, and to be free

of any such stigma in the internationalcommunity. For the plaintiffs, this suit is an opportunity to

obtainwhat many believe is a long overdue form of justice. As the analysisherein depicts, much of

the harm which resulted from abuses committedduring apartheid has yet to be accounted for.

Finally, beyond theindividual interests, the ATS itself emerges as a key stakeholder in thepresent

litigation. The statute has been the recipient of a range ofunfortunate criticisms--the most common

of which is that the Statuteunfairly enables US courts to trifle with the affairs of sovereignnations.The findings contained herein--namely, that the ATS largelycomports with the intentions of South

Africa's TRC--mitigate thesecriticisms and strengthen the ground upon which the Apartheid

ReparationLitigation can proceed.

The contours of this analysis include three parts. Part I exploresthe historical context and structure

of the TRC, as well as the specificnature of the TRC's reparations and amnesty provisions. It

revealsthat contrary to some assessments, the TRC was explicitly designed toachieve reparation

as well as forgiveness, and that the offer of amnestywas never made unconditionally. Part II

explores the specific role ofcorporations in the TRC, and reveals that despite its assessment that

aflat punitive tax should be applied to all businesses, the TRC did notintend to limit future avenuesby which corporations could be heldliable. In fact, given the dismal (or non-existent) performance

by manycorporations, there is a strong argument that the TRC intended forfuture mechanisms to

facilitate additional compensatory justice.Finally, Part III explores the evolution of the ATS in


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domestic caselaw, and the specific nature of the Apartheid Reparation Litigation.Despite the ATS's

focus on punitive damages, this Part concludesthat the narrow manner in which the ATS operates,

as well as itsspecific approach to corporate complicity, are both in keeping with theintentions of

the TRC.

II. PART I: THE STRUCTURE AND INTENT OF SOUTH AFRICA'S TRC

A fuller evaluation of the historical and structuralcharacteristics of the TRC helps to reveal which

future legalproceedings (if any), the Commission might have found acceptable. Evenprior to an

analysis of the TRC's specific "businesshearings," an assessment of its overarching design

lendsconsiderable guidance. First, although the Commission was obviouslyintended to be the

primary vehicle by which the country would transitiontowards reconciliation, it was not intended to

be the sole method ofdoing so; nor was it intended to achieve forgiveness alone. Second, theTRC's

focus on compensatory justice aimed to provide victims withmonetary compensation only if they

were the victims of gross humanrights violations. Third, the TRC expressly enabled alternative

avenuesof achieving justice to continue unabated, specifically those that hadbeen obtained in the

civil realm. (15) Finally, in order for aperpetrator to obtain amnesty, the TRC required that an

exchange takeplace. The truth, in "full" form (albeit far from completeform) had to be presented.

Failing this, the TRC had no obligation, orpower, to shield perpetrators from liability.

A. Historical Context

Beginning in 1958, the National Party of South Africa instituted asystemic and explicitly racialized

policy of classifying thecountry's populace. The structure the governmentimplemented--aparthe-

d--dictated where individuals could live and work,as well as the degree of political access they

would be granted.Maintained by the country's minority class of white South Africans,the system

often depended on state-sponsored violence. As a result, in1970, the U.N. General Assembly

declared apartheid a "crime againsthumanity," noting "with indignation the continuedpersecutionand torture of African patriots and other opponents of apartheid by theGovernment of

South Africa." (16) In the midst of the apartheidregime, the African National Congress, led by

Nelson Mandela, emerged asthe primary opposition to the apartheid government. Decades of

struggle,resistance and violence followed. In the early 1990s, Mandela wasreleased after seventy-

seven years in prison, and the arduous processof facilitating the transition to democracy began.

The TRC played achief role in allowing this transition to take place peacefully.

To place the daily life of much of South Africa's blackpopulation in context, the first hearing of the

TRC featured thetestimony of Mrs. Nohle Mohape. Her words encapsulated many of thestories of

suffering and oppression experienced during Apartheid. Mrs.Mohape's husband had been detainedand killed by the South Africanpolice, and she herself had been subject to "banning,

harassment,detention and torture by security officials." (17) She had come tothe TRC to disclose

her story, and to ask its members to "try tofind out what happened." (18)

The architects of South Africa's TRC drew heavily onhistorical precedents: Europe's post World

War II transition fromNazi Germany, the truth investigations of many Latin American

countries,and also the transition stories of several nations in Eastern Europe.(19) Prior to South

Africa's experience, in fact, there were"no fewer than fifteen truth commissions." (20) The history

ofSouth Africa, however, had its own unique characteristics. As such,early members of the TRC

acknowledged "there is no prototype thatcan be automatically used in South Africa." (21)

For the purposes of understanding the TRC in context of theApartheid Reparation Litigation, the

unique characteristics of SouthAfrica's Commission lend useful guidance. Most importantly, the


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TRCwas the product of legislative processes. In 1994, the newly createdinterracial South African

parliament voted on a bill entitled thePromotion of National Unity and Reconciliation Act. (22) It

wouldultimately become famous as "the law that empowered the Truth andReconciliation

Commission." (23) The bill's passage requiredgenuine political compromise, and the parties'

respectivesacrifices shaped the context in which the TRC operated.

When it reached the Senate, the issue of providing a "blanketamnesty" was heavily debated. The

former government had been forcedto abandon their initial proposal that the "Norgaardprinciples"

should govern amnesty provisions. (24) These principlesheld that amnesty should be available for

all offences committed in thepursuit of a political objective unless they had made use of"egregious

or disproportionate violence." (25) The ANC balkedat such light terms. Yet the ANC was also forced

to concede that theirown members who had engaged in violence would not be free from theTRC's

hearings. Moreover, to the National Party's "bitterdisappointment," it was ultimately decided that

that the hearingswould not be held in secret. (26) Curiously, however, the legislativerecord

depicts very little information regarding reparations. Mostparties appear to have been relatively

united in their perception thatsome form of reparations should be provided to victims, but that the

TRCwould not have the capability to make such awards without furtheradoption by the

government. (27)

The group ultimately concluded that while amnesty would beavailable, the procedural processes

necessary to obtain it would requirea form of disclosure. (28) As a result, South Africa's amnesty

lawwas designed to be "a mechanism that actually ensuredaccountability for gross human rights

violations." (29) Thesecharacteristics illustrate that the TRC was not merely a form ofvictor's

justice disguised as reconciliation. As one commentatornoted, South Africa's effort was "the first

example anywhereof a truth commission that was established not by a presidential decreebut by

Parliament as representative of the people." (30) Nor,moreover, was the TRC tantamount to a

legislative process in which thewill of the majority was bluntly imposed on the minority. Instead,

theprocess "reflects to a certain degree party political compromisesand not so much 'the will ofthe people.'" (31)

To that end, several of the contemporary criticisms of theApartheid Reparation Litigation are

unfounded. South Africa's TRCwas not merely an attempt by the new majority to move forward

peacefullyby any means. It was the product of deliberate democratic compromise;one of the first,

in fact, of the country's new democracy. Themanner in which the country had agreed to move

forward peacefullyentailed specific parameters to which parties on both sides of thepolitical (and

racial) aisle had contributed--namely, that the provisionof amnesty would require specific

disclosures, and that the TRC would beempowered to make recommendations regarding

reparations. As a result,the TRC provides an appropriate proxy for the will of thecountry'sdemocracy at the time of the TRC's passing. Moreover, to the extentthat participants in

the TRC failed to comply with its parameters, theyalso failed to comply with the wishes of the

democratic nation.

B. Structure--An African Conception of Justice?

Archbishop Desmond Tutu, well known for his role as a non-violentantiapartheid activist, was

chosen as the Chairman of the TRC. He wasaided in the role by sixteen other commissioners (six

black, two Indian,and six white). (32) Under their leadership, the core functions of theTRC were

to: (1) "facilitate ... inquiries into gross violations ofhuman rights;" (2) "facilitate the gathering ofinformationand the receiving of evidence" related to such abuses, particularlyvia testimonials from

victims; and (3) "facilitate the granting ofamnesty ... by receiving from persons desiring to make a

full disclosureof all the relative facts relating to such acts." (33) In order tocarry out these


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objectives, the Commission depended on three committees,including a Committee on Human

Rights Violations, a Committee onAmnesty, and the Committee on Reparation and Rehabilitation.

(34)

In aggregate, the powers granted to the TRC by the legislature werealso historically unique. (35)

The Commission had the ability to awardlegal amnesty to perpetrators--a quasi-judicial function.

But withregards to reparations, it could only "recommend" measures forgovernment review--a

largely administrative responsibility. (36) As wasthe intent of the Commission's drafters, however,

these functionswere largely symbiotic. The opportunity for amnesty would enticeperpetrators to

participate in the hearings, which, in turn, wouldunearth more information with which the TRC

could make recommendations.(37) As the TRC's final report makes clear, however, "whilethe

Amnesty Committee had the powers to implement its decisions, theReparation and Rehabilitation

Committee (RRC), for example, could onlymake recommendations for reparations for victims."

(38)

With respect to the jurisprudential background of the TRC, both themandate and the structure of

the TRC were infused with restorativeconceptions of justice. As Desmond Tutu remarked during

theCommission's founding, the TRC aimed in part to achieve"ubuntu, a conception of African

traditional thought" whichemphasizes "restoring evildoers back into the community rather

thanpunishing them." (39) Tutu explained that, "Ubuntu says I amhuman only because you are

human. If I undermine your humanity, Idehumanize myself ... That's why African jurisprudence

isrestorative rather than retributive." (40) The concept of ubuntuhad also been employed in other

legal settings at the time of theTRC's founding. The postamble to South Africa's

InterimConstitution, for example, states that "there is a need forunderstanding but not for

vengeance, a need for reparation but notretaliation, a need for ubuntu but not for victimization."

(41)

This conception of the unique nature of African jurisprudence hasled some to suggest that theTRC's primary intention was tofacilitate forgiveness, and, as such, that the Apartheid

ReparationLitigation contravenes the Commission's aims. The litigation, theyargue, risks shifting

the focus to a retributive form of justice--anoutcome which runs expressly contrary to the notions of

restorativejustice espoused at the time of the TRC. Such assertions, however, takea myopic view

of the Commission's scope and methodology.Unquestionably, one of its many goals was to facilitate

a process offorgiveness. Yet as the structure of the TRC depicts, the Commission wasalso intended

to facilitate reparations. The TRC featured a Committeespecifically devoted to reparation and

rehabilitation, and the Act whichempowered the TRC was even more explicit. It established that

theCommission must restore "the human and civil dignity of ... victims... by recommending

reparation measures in respect of them." (42)In operation, this responsibility entailed twocomponents:"rehabilitating and restoring the human and civil dignity ofvictims by recommending

reparations in respect of them," andgranting "urgent interim reparation" to those in need. (43)

Bydefinition, therefore, the TRC was more than a method of achievingforgiveness by any means: it

was also designed to repair the lives ofvictims.

C. The Nature of Reparations Recommended by the TRC

The Commission's specific approach to reparations wasintensely (and perhaps inevitably)

controversial. First, the Committeedecided on monetary compensation, rather than providing some

form ofpackaged services as a method of compensating victims. (44) Thisdecision was based inpart on leftover suspicion of "governmentservices" after Apartheid, and also on the Commission's

desireto steer clear of paternalistic thinking. (45) Second, the Committeeadopted a "closed list"

approach to identifying victims. Asone of the former Commissioner's explained, "[t]he


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Act'sdefinition of a victim immediately excluded millions of South Africanswho, while they may not

have suffered a gross violation of human rightsin terms of the Act, nevertheless suffered the daily

violation of livingunder apartheid. Our first painful step was thus to limit reparationrecipients to

those who had been found to have suffered a grossviolation of human rights, as defined in the Act."

(46) TheCommittee's final report specified that actions that constitutegross human rights

violations include "killing, abduction, torture,and severe ill treatment." (47) The report defined

severe illtreatment as "attempted killing and all ill-treatment forms ofinflicted suffering causing

extreme bodily and/or mental harm."(48) The report includes the following specific categories:

severelybeaten; injured by burning; injured by poison; injured in an explosion;mental ill treatment

(including simulated executions); bodilymutilation; and necklacing (defined as being severely

burned by a tirefilled with petrol placed around an individual's neck). (49)Cumulatively therefore,

the TRC adopted two primary guidelines forreparations: that compensation could be monetary in

form, but that itcould only be provided to victims who had suffered a gross violation ofhuman

rights.

In total, the TRC recommended that each of the victims identifiedbe awarded between 17,029

South African Rand (ZAR), and 23,230 ZAR peryear for six years. (50) As mentioned earlier,

however, the award ofsuch provisions ultimately rested with the government. The extent of

theTRC's capacity in this regard was to make "Reparation PolicyProposals," while acknowledging

that "much will depend onwhether and how much [these Proposals] are diluted duringadoption."

(51) Ultimately, the government adopted a staticcompensation approach. It provided 30,000 ZAR

(approximately USD 4000)for each victim identified by the TRC. As of 2007, the total amount

paidon reparations was approximately 510 million ZAR (approximately USD 65million), which was

distributed to 16,837 beneficiaries. (52) The factthat reparations provided for less than 17,000 of

the approximately 33million black South Africans who suffered from the injustices ofApartheid

illustrates the limited degree of compensation the TRC wasable to achieve (even in consideration of

the "closed list"approach). This shortfall did not go unnoticed by the country'spoliticians or by the

TRC's Commissioners. As one commentatorreflected on the TRC ten years after it began, "[w]hilstthe TRCwas indeed a process agreed upon by all political parties to avoidNuremberg-style

apartheid trials or any ensuing litigation ... in thoseinstances where such applications have been

unsuccessful or where noapplications were made it has always been the contemplation that

further... proceedings could be instituted." (53) As will become clear inthe Parts to come, the

Commission's flexible approach with regardsto future litigation was especially apparent in the

context of corporateinvolvement.

D. The TRC's Approach to Amnesty

As the legislative debate behind the TRC and the structure of theCommission attest, theCommission's broad aim of facilitatingforgiveness was never intended to be unconditional. The TRC

did notgrant a blanket amnesty. Instead, it offered the perpetrators of crimesan opportunity for

amnesty if they acted in compliance with theTRC's directives. As one commentator recalls, the

Mandelagovernment was "unwilling to allow ... amnesty to cover the crimesand injustices of the

past in a blanket of oblivion." (54) As aresult, the government "eventually proposed to embed the

grantingof amnesty in a concerted official truth--finding effort." (55) Tothat end, the Commission

was broadly empowered to address acts"committed inside or outside the Republic of South

Africa,"provided that the activities "were directly connected to thepolitical conflict in South Africa,

and amounted to offences or delictsunder South African law." (56)

Perhaps most importantly, the TRC expressly differentiated betweencriminal and civil convictions.

Following a full disclosure ofprohibited activities, "any criminal conviction based on the act

isdeemed to be expunged from all official documents and records, and theconviction shall for all


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purposes be deemed not to have taken place. Bycontrast, a civil judgment in respect of the act

retains its validityand remains enforceable." (57) As a result, the TRC clearly did notintend for its

hearings to be the sole mechanism by which justice couldbe pursued.

In order to be eligible for amnesty, moreover, the petitionerrequesting relief had to meet two

"material preconditions."(58) First, the applicant had to make a "full disclosure" ofhis or her

actions. (59) Second, the offence had to have been committed"in the course of the conflicts of the

past" with some form ofa "political objective." (60) The parameters of whatconstituted a "political

objective" are relatively clear.First, the petitioner must have acted "as a member or supporter ofa

liberation movement, a political party or a state institution."(61) Second, the petitioner must have

"on reasonable groundsbelieved that that they were acting in the course and scope of theirduties."

(62)

Unfortunately, there is little additional guidance regarding whatconstituted a "full disclosure." (63)

When confronted withambiguity, however, the Committee appears to have erred on the side

ofleniency: "When no other evidence is before the Committee but theapplicant's version is not so

inherently improbable that it can berejected as false, the Committee ... gives the applicant

the'benefit of the doubt'--in other words, the Committee putsremaining misgivings and doubts to

one side in deciding upon hisapplication." (64) This flexibility pertained to not only thegranting of

amnesty, but even, in certain circumstances, to the degreeof comprehensiveness required. The

Committee acknowledged that it"accepts the reality that an applicant can only tell what he

knowsand remembers; since an applicant's knowledge of events may belimited and his memory

fallible, this often results in decisions basedon rudimentary recollections rather than reliable

evidence--anapplicant's disclosures in these cases being closer to anaspiration to co--operate with

the Committee than an actual contributionto a historical record of the past." (65) These

assessmentsunderscore the Committee's willingness to provide amnesty to thosewho engaged

earnestly in the process. (66)

Cumulatively, therefore, the TRC's procedures do not appear tohave placed an onerous burden on

petitioners, especially by comparisonto other international legal standards. In total, of those that

engagedfully in the process and received a hearing, 1312 individuals receivedamnesty of some

form, and 362 were rejected. (67) With respect to thebusiness community's participation in the

TRC--as discussed in PartII to come--the relatively light burden on petitioners and thecommittee's

tendency towards leniency suggest that the bar toachieving some form of forgiveness would not

have been particularlyhigh.


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III. PART II: CORPORATE PARTICIPATION IN THE TRC

South Africa's TRC was one of the first of its kind to includecorporations. Although different from

most international Commissions inthis regard, the TRC's emphasis on business is not surprising

giventhe country's history. (68) South Africa's past is largely astory of colonial oppression and

economic exploitation. Thecountry's mining and agricultural sectors in particular depended onthe

South African government for several functions: to segregate theblack majority; to maintain

depressed wages (so as to reap higher profitmargins); and to ensure that the black populace

remained largely"unskilled" by comparison to the white minority. To place thisin context, the

wages

paid by Anglo American and the other gold-mining corporations in 1972 were in real terms ... 15%

lower than the level of 1911.... The agricultural sector ... benefited perhaps as much (if not more)

from paying extraordinarily low wages to farm workers whose mobility (and bargaining power)

were seriously constrained by the strict application of the pass laws. (69)

The nature of this symbiotic relationship has led one historian toconclude that, "[t]here can be no

doubt that the apartheid system(or, more correctly, the system of racial capitalism) was

deliberatelyconstrued in very close collaboration (conspiracy?) between (white)business and

(white) politicians to create a (mainly African) labourrepressive system on behalf of white

businesses." (70) It is notsurprising that the mandate of the TRC, itself a product oflegislativedebate and democratic will, included the obligation that the TRC delvedeeper into the

relationship between business and government.


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On first blush, the unusual inclusion of businesses in SouthAfrica's TRC gives critics of the

Apartheid Reparation Litigationsturdy ground from which to launch their criticisms. The TRC made

anassessment regarding business complicity, and, as a result, criticsmight argue that South Africa

has already resolved the issue in a mannerof its own choosing. For several reasons, which are

further explored inthis Part, however, these assertions are unavailing.

A. The TRC's Approach to Corporations

The institutional hearings on corporate involvement explored avariety of roles that businesses

played during Apartheid. The Commissionassessed instances of active support that businesses

provided, as wellas any overall patronage that businesses had received in return. TheCommission

even asked, in some instances, "whether business haddone enough to end [Apartheid]." (71)

Curiously, however, the TRCultimately adopted a blanket approach to corporate involvement.

Itproposed several mechanisms by which to implement punitive measures: awealth tax, a one time

tax on corporate income, and also a flatpercentage donation from the leading companies in South

Africa'sstock exchange. "No attempt," however, "was made to makethe proposed restitutive

measures proportional to the different levelsof involvement." (72) This blanket approach meant that

corporationsthat had participated in a relatively benign manner, or even acted toconfront the

apartheid regime, would be penalized the same as those thathad played a more active or

collaborative role.

One interpretation of the TRC's blanket approach is that theCommission intended not to punish

businesses in the same manner as itdid individuals. As one participant in the bearings has noted,

[I]n making findings about business, the TRC adopted a very different approach to culpability and

restitution from that it applied to perpetrators of gross human rights abuses. Whereas apartheid

agents (security policemen, members of death-squads, etc.) were granted amnesty in return for full

disclosure and encouraged to seek reconciliation with their victims, the TRC proposed that allbusinesses (regardless of their different levels of involvement) should be liable for punitive

taxation. (73)

Any assessment that the TRC intended to downplay the importance ofbusiness involvement,

however, is belied by several considerations.

First, the TRC took care to identify what it regarded assubstantively different levels of corporate

culpability. In total, theCommission revealed "three different orders of business involvementwith

the apartheid regime: active collaboration in the construction ofapartheid (first-order involvement);

supplying goods and services usedfor repressive purposes (second-order involvement); andbenefitting fromthe apartheid economy (third-order involvement)." (74) After theinstitutional

hearings, the TRC concluded that "certain businesses,especially the mining industry, were involved

in helping to design andimplement apartheid policies" (75) which is qualitatively distinctfrom

industries that merely "failed to provide adequate facilitiesand services for employees." (76)

Second, the approach of the TRC towards businesses appears to havebeen focused at least in part

on the systemic nature of theirinvolvement. In this regard, the "South African TRC seems to be

theonly truth commission that took seriously the idea that simply by virtueof operating within the

context of a repressive regime, business shouldbear some accountability for it." (77) As a result,

rather thanattempt to deal comprehensively with the issue of corporate complicityin Apartheid,the TRC's approach appears to have provided abaseline of some form. That is, the Committee

determined that allparties had, in some manner, benefited from the systemic exploitation

ofapartheid, and should therefore be held accountable. This should notnecessarily be read,


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however, as a blanket assessment that allbusinesses involved in apartheid were equally liable. In

fact, some ofthe TRC's provisions lend weight to a contrary conclusion.

The TRC report stated that, going forward, "there are legalgrounds for instituting claims for

reparations against banks and othercorporations." (78) Although the TRC provided little

clarificationof the type of legal mechanisms it was referring to, it appears clear,at a minimum, that

some form of legal proceedings might be valid. As onescholar has noted, "The responsibility of

businesses was welldocumented in the Final Report, in which the Commission concluded thatthere

was a strong legal case against these institutions in terms ofinternational law." (79) The final report

itself goes on to statethat "business benefitted substantially during the apartheid era... and has, at

the very least, a moral obligation to assist ... throughactive reparative measures." (80) These

admissions run expresslycontrary to the assertion that the TRC intended for the case

againstcorporate involvement to be closed following its final report. Instead,the Committee

acknowledged that the scope of their findings regardingbusiness involvement was limited, and

purposefully left the door openfor future proceedings.

B. A Performance with "Glaring Absences"

As has been widely acknowledged following the hearings oncorporations, the performance of most

businesses during the TRC waslackluster--if not deliberately uncooperative. The formal

assessments ofthe TRC included several criticisms. First, it held broadly,"Businesses were

reluctant to speak about their involvement in theformer homelands." (81) The report reserved

special mention,however, for the agriculture and mining industries. "It wasparticularly

regrettable," the report stated, "thatrepresentatives of commercial agriculture did not participate

in thehearing, despite an invitation to do so." (82) Furthermore, it wasalso "regrettable that the

Chamber of Mines made no mention in itssubmission of the active role they played in constructing

and managingthe migrant labour system." (83) These statements underscore theCommission's

frustration with the lack of earnest engagement thatsome corporate sectors displayed.

Somewhat surprisingly, many businesses used the TRC as a forum bywhich to launch complaints,

claiming that they too were victims ofApartheid. The report summarized these claims collectively:

"Theother position, argued mainly by business, claims that apartheid raisedthe costs of doing

business, eroded South Africa's skill base andundermined longterm productivity and growth. In this

view, the impact ofapartheid was to harm the economy." (84) Finally, given theuncertain legal

ramifications which the TRC posed, some corporationssimply opted out of the proceedings

altogether, preferring the risk ofbeing stigmatized for their absence over the risk of a

concreteassessment of their culpability. "Most notable amongst these,"the TRC reported, "were

the multinational oil corporations (whichwere the largest foreign investors in South Africa)." (85)

Outside the confines of the TRC's official report, a series ofeven more forceful responses took

place. As one commentator noted,"Looking at the restrained findings of the TRC on business,

onemust come to the conclusion that the TRC was indeed restrained by therecalcitrant attitude

the majority of businesses took toward anyone whodared to blame them for being an integral part

of racial capitalism, orwho suggested that they benefited." (86) In addition, Desmond

Tutuannounced that there were "glaring absences" in the businesssubmissions that the TRC

received. "No one today admits tosupporting apartheid" Tutu lamented. (87) "It will bewonderful

to have someone here saying 'we did this and we didthat' ... and we want to rub some oil on the

wounds." (88)Yet, given the lack of engagement, Tutu was forced to conclude that thebusinesshearings "did not mean the end of the process, as therewas the question of restitution and

repairing the wrongs done."(89) When this inference is considered in the context of the

consistentdeference that the TRC applied to amnesty petitions, it raises acompelling argument


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that the participation of corporations wasmarkedly--perhaps even uniquely--incomplete. In

aggregate, the TRC notonly established that future legal proceedings against corporationscould

proceed unfettered, but also seems to suggest that some adjunctmechanism should be provided in

order to make up for their lacklusterperformance in the TRC.

C. An Unfulfilled Promise

Despite the efforts of the TRC to recommend a range of reparationmethods, no corporate tax has

ever materialized. At the time that theTRC issued its final report and closed its doors in 2003, a

post-Mandelapresidency was well underway. The new administration was keenly focusedon

reducing the country's high unemployment rate, and on growingthe nation's GDP. The new

administration determined that foreigninvestment was critical to these efforts, and shied away from

actionswhich might deter first world investors. A journalist captured thepredicament at the time

as follows: "Immediately, the South Africangovernment found itself torn between two political

constituencies: Bigbusiness--still largely dominated by whites--and the victims ofapartheid, who

are mostly black." (90) As a result, the government"refused to impose a wealth tax on multinational

corporations, aswas recommended by the TRC." (91)

With respect to corporations, the combination of the TRC'srecommendations and the government's

actions has led to a somewhatperverse form of justice. First, in a deviation from its usual role,

theTRC recommended that all South African businesses be forced to pay aflat tax as compensation

for their gains during Apartheid. As depictedearlier, however, it is likely that the TRC intended to

establish someform of minimum baseline of liability, and to leave open future avenuesof pursuing

businesses that had engaged in greater violations. The taxthat the TRC recommended, moreover,

was never applied, and neverfacilitated any form of economic redistribution to the victims

ofApartheid. Finally, the process seems to have provided many businessesan opportunity to assert

their own victimization. Cumulatively,therefore, the victims of corporate abuses during apartheid

have yet toreceive any form of reparations for corporate harms.

IV. PART III: THE ALLEN TORT STATUTE (ATS) AND THE APARTHEIDREPARATION

LITIGATION

The Apartheid Reparation Litigation commenced in 2002, when a largegroup of South African

plaintiffs brought suit against approximatelytwenty multinational corporations under the ATS. (92)

The defendants,including Daimler, Ford Motor Company, General Motors, IBM,

RheinmetallGroup, Shell, and BP (among others), are alleged to have engaged in arange of

violations in support of South Africa's apartheid regime.The gravest of these allegations include:

"arbitrary arrest anddetention, torture, forced exile, arbitrary denationalization, andtheextrajudicial killing of family members." (93) The plaintiffs arethe "personal representatives of

victims of extrajudicial killing,or were themselves direct victims of the aforementioned

crimes."(94) While the plaintiffs' complaint features some allegations ofliability for the direct

perpetration of crimes, the vast majority ofthe claims pertain to aiding and abetting activity. (95)

Although the Apartheid Reparation Litigation is still ongoing, (96)the few operative holdings that

are available are entirely in keepingwith domestic precedents regarding the ATS. When evaluated

incombination, the evolution of the ATS, and the holdings issued thus farin the Apartheid

Reparation Litigation, reveal several constrainingfactors which closely align with the intentions of

the TRC. First, theATS can be applied to only a very narrow range of actions--namely,violations ofgreat severity, and, by implication, near universalcondemnation. When analyzed in context of the

TRC's intentions, theclaims that are actionable under the ATS are highly analogous to thosethat

the TRC sought to address under its "closed list"approach. Second, the ATS is expressly focused on


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civil remedies, andthe Apartheid Reparation Litigation aims to provide exclusively

monetaryreparations to victims. To that end, the ATS litigation comports withthe TRC's desire to

leave civil obligations intact, and also withthe Committee's ultimate decision to provide monetary

reparationsto victims. A divergence crops up, however, with regards to theATS's focus on punitive

damages, and as such, the plaintiffs maywish to allocate increased focus to their compensatory

claims goingforward. Finally, it is clear that ATS litigation has shiftedincreasingly from individual

defendants to corporations. As theoperative holdings from the Apartheid Reparation Litigation

make clear,however, the manner in which a corporation can be held liable forcomplicity is limited

to instances in which it contributed some form ofsubstantial assistance. This heightened standard is

in keeping with theTRC's efforts to stratify degrees of corporate involvement, andalso with its

recommendations that future avenues be available to pursuemore severe instances of corporate

abuse.

A. The Evolution of the ATS

The Alien Tort Statute has existed for over two hundred years. Yetas Judge Friendly once

remarked, "no one seems to know [from]whence it came." (97) The statute states, in its

entirety,"The district courts shall have original jurisdiction of any civilaction by an alien for a tort

only, committed in violation of the law ofnations or a treaty of the United States." (98) In light,

perhaps,of its obscure origins, the Statute received little attention for almosttwo centuries. In

1976, however, it was resurrected when a team ofenterprising human rights lawyers employed the

device on behalf of aParaguayan family seeking justice for the torture and murder of theirfamily

member. Their efforts led to the landmark decision, Filartiga v.Pena-Irala, which expressly enabled

the victims of certain internationalhuman rights abuses to bring civil actions in federal courts.

(99)

In Filartiga, the plaintiffs brought suit against a Paraguyanpolice officer alleged to have tortured

and murdered their son,17-year-old Joelito Filartiga. (100) Following the murder charge, thepoliceofficer, Americo Norberto Pena-Irala, fled Paraguay and was foundto be living in New York City at

the time of the lawsuit. (101) Thefacts of the case contained three foundational elements that have

becomestaples of ATS litigation. First, the claim was made by alienindividuals living in the United

States--the Paraguayan family membersof Joelito Filartiga. Second, the claim alleged some form of

a tort--inthis instance, torture and murder. Finally, the torts alleged were foundto be violations of

the law of nations. (102) Following the court'sdecision granting judgment in favor of the Filartiga

family, a wave ofnew cases was filed under the ATS. Most targeted former governmentofficials

who had committed grave human rights abuses abroad, but werenow living in America. (103)

Despite fears that the ATS would unleash aflood of damage awards, however, "fewer than two

dozen cases havesustained ATS claims in the years since the Filartiga decision."(104)

Following Filartiga, there was substantial deliberation regardingwhether the ATS was intended to

give aliens a cause of action, orwhether it had only a jurisdictional purpose. In Sosa v.

AlvarezMachain, however, the Supreme Court put much of this uncertainty torest. The Court held

that the ATS was jurisdictional--that is, it wasintended to allow aliens to bring claims in federal

courts. However, thecause of action was to come from federal common law. As the Court'sopinion

explains, "although the ATS is a jurisdictional statutecreating no new causes of action, the

reasonable inference from thehistorical materials is that the statute was intended to have

practicaleffect the moment it became law." (105) The Court found that the"second inference to be

drawn from the history is that Congressintended the ATS to furnish jurisdiction for a relativelymodest set ofactions alleging violations of the law of nations." (106) As aresult, much of the

substantive debate regarding the ATS now pertains towhat actions constitute violations of the law

of nations.


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The Court's emphasis in Sosa on the "modest" set ofactions which fall under the purview of the ATS

underscores a continuingtheme throughout the Court's approach to ATS litigation: the rangeof

claims which can be brought under the statute is small. The standardthe Court used to establish

the boundaries of such claims is broadlyarticulated in Sosa. The Supreme Court held that "federal

courtsshould not recognize private claims under federal common law forviolations of any

international law norm with less definite content andacceptance among civilized nations than the

historical paradigmsfamiliar when [section] 1350 [the ATS] was enacted." (107) Thedifficulty,

however, was that the historical paradigms which the Courtreferred to were a somewhat clumsy

and anachronistic group ofviolations. Originally, the ATS was intended to protect against"violation

of safe conducts, infringement on the rights ofambassadors, and piracy." (108) Finding a set of

current normswhich was equally "modest," but also widely recognized,required not only branching

beyond the original list, but also asomewhat different doctrinal approach.

Over time, the courts' methodology regarding what violationsfall under the ATS have become more

streamlined. As first established inForti v. Suarez- Mason, torts which are actionable under the ATS

are"characterized by universal consensus in the internationalcommunity as to their binding status

and their content. That is, theyare universal, definable, and obligatory international norms."(109)

The result of these parameters is that "only norms that reacha high degree of acceptance and

definition will trigger ATSjurisdiction." (110) As is further explored in the next subpart,this

evolution in domestic case law has rendered the scope of theATS's contemporary application highly

similar to the historic focusof the TRC.

B. Actionable Claims under the A TS and the Apartheid ReparationLitigation

Ultimately, only the following list of human rights violations havefound their way into the purview

of the ATS: "genocide, torture,summary execution, disappearance, war crimes, crimes against

humanity,slavery, arbitrary detention, and cruel, inhuman or degradingtreatment." (111) In

determining eligibility, courts appear to havefocused not only on universality, but also on theseverity of theviolations committed (or, at a minimum, they appear to have usedseverity as a

method by which to judge universality). (112) As onelitigator familiar with ATS litigation

commented, "While the exactreach of these few words has led to extensive debate, modern

courtssince Filartiga have been remarkably consistent in applying the statuteto a short list of

egregious human rights abuses." (113) Thisconsistency allows for a fairly precise analysis of the

"type"of allegations that may be successful in the Apartheid ReparationLitigation. Equally

important, it reveals a set of acts that can beevaluated in context of the specific violations that the

TRC sought toaddress.

With regards to the Apartheid Reparation Litigation, thecourt's methodology has been entirely inkeeping with precedent. Itheld, for example, that the plaintiffs did not have the "right tosue for

'breadth of harms' committed under apartheid."(114) The court balked at the assertion that

Barclay's refusal toprovide job opportunities based on race should be actionable under theATS.

(115) In addition, the court denied the plaintiffs' argumentthat private apartheid--apartheid

committed by corporations--fell underthe purview of the statute. The court held

[P]rivate apartheid is not a uniformly-accepted prohibition of international character. Although the

establishment of state-sponsored apartheid and the commission of inhumane acts needed to

sustain such a system is indisputably a tort under customary international law, the international

legal system has not thus far definitively established liability for non-state actors who follow oreven further state-sponsored racial oppression. (116)

In the same ruling, however, the court upheld claims againstDaimler, Ford and General Motors for


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"torture, extrajudicialkilling and cruel, inhuman and degrading treatment [CIDT]." (117)With

regards to these allegations, the court once again took care tolimit the scope of eligible claims. It

held, "the widespreadacceptance of CIDT does not render all cruel, degrading, or eveninhumane

state conduct a violation of the law of nations." (118)Instead, the court ruled that the international

norms regarding theprohibition on CIDT were constrained by the "custody or controlrequirement,

as well as the relationship between CIDT and torture."(119) In doing so, the court resisted calls to

expand the scope ofactionable violations under the ATS, and proactively constrainedcategories

that risked being applied in a more expansive manner goingforward.

The court's methodology reveals a substantial overlap betweenthe violations covered by the ATS

and those of the TRC. As depictedearlier, the TRC adopted a constrained "closed list"

approachwhen it established the requirements for reparation eligibility. Theability to access

reparation was limited to those who had suffered agross violation of human rights (including, once

again, killing,abduction, torture and severe ill treatment.) (120) To that end, theviolations that

have thus far formed the core group of actionableviolations under the ATS bear a close

resemblance to those the TRC aimedto address--namely, human rights violations of great, and

universallycondemned, severity. As a result, the substantive focus of the ATS hasnot strayed

beyond the TRC's parameters--in fact, it comportsclosely with the explicit design of the TRC.

C. Remedial Characteristics

Because the ATS does not provide for criminal liability, theStatute has been litigated exclusively in

the civil realm. All ATScomplaints seek some form of monetary damages. While it is likely

thatcourts are also empowered to award injunctive relief, "no court hasyet issued an injunction to

halt ongoing human rights abuses."(121) With regards to monetary relief, almost all ATS

litigationincludes two forms of damage requests: first, "compensation to makethe injured person

whole," and second, "punitive damages todeter future abuses." (122) Somewhat surprisingly, in

everysuccessful ATS judgment thus far, the court has awarded some form ofpunitive damages.(123) This trend is likely in part a function of theseverity of crimes that are covered under the ATS.

The Filartiga rulingmade clear that when awarding damages, a court should seek to "giveeffect to

the manifest objectives of the international prohibitionagainst torture." (124) Doing so, the court

held, necessitatedawarding damages which not only compensated victims for their suffering,but

also deterred future defendants from engaging in similar practices.(125) With regards to

compensatory damages, the manner of reliefavailable applies only to losses which result from the

physicalsuffering incurred--namely, "physical injury, pain and suffering,[and] lost income." (126)

With regards to punitive damages, thecourts' emphasis on deterring abhorrent practices has led

toseveral substantial awards. In Filartiga, for example, "the courtfound that a punitive damage

award was essential to the vindication ofthe international rights at stake and awarded punitivedamages of $5million each to [the plaintiffs]." (127) In keeping with other ATSlitigation, the

Apartheid Reparation Litigation seeks punitive as wellas compensatory damages. Although the

latest complaint from theplaintiffs does not refer to a specific sum, given the size of theclass, and

also the gravity of the violations alleged, it is likely tobe substantial. (128)

In general, the remedial aspects of the ATS are largely in keepingwith the TRC's design. With

regards to civil damages, the TRCexpressly intended for its amnesty provisions to apply only to

criminalactivity. As a result, it left the door ajar for civil liability awardsto continue to be enforced.

In addition, the specific manner by whichthe ATS awards relief--monetary compensation--was also

the preferredmanner of reparations in the TRC. It trumped the alternatives of bothserviceprovision, and also the more restrained option of merely askingperpetrators to cease and desist

(i.e., a form of injunctive relief). Apossible divergence, however, crops up in the realm of punitive

damages.Given the Commission's consistent focus on restorative conceptionsof justice, it could be


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argued that the TRC did not intend forreparations to play an overly punitive role. This argument is

partiallycontravened by the several occasions upon which the TRC called for somemanner of

restitution to take place. It proposed, for example, that"consideration be given to the most

appropriate ways in which toprovide restitution for those who have suffered." (129) Dependingon

the manner in which the term restitution is construed, theCommission's specific reference in this

regard might suggest thatsome form of reparation beyond mere compensation was necessary.

Nevertheless, it appears likely that critics of the ApartheidReparation Litigation have a strong

argument that the punitive aspectsof the ATS do not comport with the TRC's focus on restoration

andreparation. In order for the plaintiffs to shape their claim in a mannerso as to avoid such

criticisms, they should focus primarily oncompensatory damages. While this approach is likely to

diminish anydamage amounts that may eventually be awarded, it need not do so to apoint of

futility. Given the severity of the violations alleged in thecase, any compensatory damage awards

alone are likely to be substantial.

D. The Limit of Corporate Complicity Under the ATS

Finally, much has been made of the fact that the ApartheidReparation Litigation is largely focused

on corporate complicity inhuman rights abuses, rather than on the direct perpetration of

crimes.Critics argue both that the ATS is not intended to pertain to actions ofcomplicity, and also

that broadening the ATS to envelope such corporateactivities is inconsistent with the TRC. (130)

Several points ofhistorical context, as well as a careful analysis of the early holdingsin the

Apartheid Reparation Litigation, help to illustrate why thesearguments are unavailing.

In the past decade, the tactical nature of ATS litigation hasdiverged from its original moorings in

Filartiga. Two primary trendshave driven this divergence. First, human rights litigators

haveincreasingly used the ATS to target corporations rather thanindividuals. In many of the

earlier cases, defendants had few resourcesby which to compensate victims, and some even shirkedjudgments byfleeing the country while litigation was pending. (131) The more recentclaims,

however, pose the risk of incurring substantial damage tocorporate balance sheets. And, they are

targeted at defendants with moresedentary characteristics (international offices based in the

UnitedStates cannot be easily abandoned in the event of litigation).Accordingly, as one

commentator has noted, the more recent cases havebeen "fiercely litigated" by corporate defense

teams. (132)Second, as a result of the shift towards corporations, the substantivenature of many

ATS cases has changed. Corporate-based ATS litigationhinges more often on proving a company's

complicity in torts,rather than ascribing fault for the direct perpetration of crimes. Fromthe

perspective of human rights litigators, this is a logicaltransition. It is somewhat rare, after all, that

a corporation sets outon a course to pursue human rights abuses directly. Instead, suchentitiesare more likely to encounter trouble as a result of havingcontracted with another party--a local

security force for example, orgovernment actors.

With regards to the Apartheid Reparation Litigation specifically,the defendants argued that the

ATS should not apply to actions ofcomplicity. These assertions, however, met with an emphatic

rejectionfrom the court: "defendants aim to reopen a long-settled questionin this Circuit. On at

least nine separate occasions, the Second Circuithas addressed ATCA cases against corporations

without ever hinting--muchless holding--that such cases are barred." (133) This

statementarticulates a principle which has long been implicit in the evolution ofATS litigation: that

corporations are not immune from the purview of theATS. A slightly more complicated questionarises, however, with regardsto the nature of corporate complicity that constitutes a violation

ofthe ATS; and, in turn, whether ascribing liability in such circumstancesis in keeping with the

TRC.


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With regards to what constitutes a culpable act of complicity, theApartheid Reparation Litigation

held that in order to be liable, theactions of a corporation must have a substantial effect on

theprincipal's violation. Specifically, the court stated, "[t]heactus reus of aiding and abetting in

international criminal law requirespractical assistance, encouragement, or moral support which

has asubstantial effect on the perpetration of the crime." (134) Thecourt drew a sharp distinction,

however, between actions that constitutea substantial effect, and those with more benign

characteristics."It is (or should be) undisputed," the court held, "thatsimply doing business with a

state or individual who violates the law ofnations is insufficient to create liability under

customaryinternational law .... Aiding a criminal 'is not the same thing asaiding and abetting [his

or her] alleged human rightsabuses.'" (135) The court nevertheless resisted demands toremove

corporate complicity from the purview of the ATS entirely. Itheld that a commercial action might

rise to the level of substantialsupport when a vendor provided the specific "means by which

aviolation of the law is carried out." (136) Subsequently, the courtheld that an aider and abettor

must know (rather than intend) that itsactions will assist the violation. (137) Cumulatively,

therefore, theATS facilitates the prosecution of a corporation only when thecorporation has

knowledge that the contracting party is engaging inuniversally abhorrent activities, and when its

actions have asubstantial effect on allowing the activities to take place. Althoughthis standard

certainly allows for an avenue by which corporations canbe held accountable, it sets an

unquestionably onerous obstacle forhuman rights litigators.

Given the TRC's explicit (and historically unique) efforts toinvolve corporate activities in their

proceedings, it is clear that theCommission intended to make some assessment regarding

corporateculpability. As depicted earlier, however, the TRC's efforts tostratify the various degrees

of business culpability run somewhatcontrary to their final recommendation that a punitive tax be

appliedevenly. The Commission was cognizant of this juxtaposition. As a result,it allowed for

future avenues by which victims could continue to pursuecorporations involved in substantial

abuses; or, in terms more familiarto the TRC, those that were involved in activities of the

"firstorder." By definition, the TRC's recommendation--a flat tax ofsome form--impactedcorporations of first, second and third orderinvolvement. But the only violations that were fully

addressed by thisrecommendation were those of "third order" involvement(corporations that

benefited from the apartheid economy, and no more).As such, the TRC's directive that alternative

legal avenues remainunfettered was almost certainly aimed at corporations that had

committedsome form of more substantial abuse. Any other interpretation would leadto an

unreasonable double punishment applied to entities of third orderinvolvement. As the early

holdings from the Apartheid ReparationLitigation make clear, the manner in which a corporation

can be heldliable for complicity under the ATS is limited to instances in which thecorporation had

some form of substantial involvement in the crime. Thisheightened standard is in keeping with the

TRC's efforts tostratify the different degrees of corporate involvement in Apartheid,and also withits recommendation that future legal avenues be availableto pursue more substantial instances of

corporate abuse.

V. CONCLUSION

Over the past decades, the ATS has experienced a dramatic revivaland a more dynamic application

to a range of defendants. This trend,however, should not be seen to distort the consistently narrow

scope inwhich the Statute is applied. Only crimes of the most universallyabhorrent severity fall

within its purview. Thus far, the rulings thathave emerged from the Apartheid Reparation Litigation

provide noindication that the court is branching beyond these confines.

Given the economic interests at stake, however, as well as theTRC's overarching focus on

restoration, it is not surprising thatsome commentators have questioned the Apartheid Reparation


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Litigation.These criticisms have proven largely unfounded. The structure of theTRC, the nature of

corporate participation in the TRC, and also thenarrow realm in which the ATS can be applied,

reveal that the ApartheidReparation Litigation does comport with the intentions of the TRC.

Infact, following a comparative assessment, the ATS and the ApartheidReparation Litigation

emerge as highly appropriate tools for pursuingcorporate complicity in Apartheid. They extend the

Commission'swork in a manner which is in keeping with the TRC's objectives, andalso with the

manner in which the TRC posited such work might beconducted in the future.

From the perspectives of both the victims of Apartheid, and SouthAfricans more broadly, this is a

substantive revelation. The TRC, one ofthe first products of the country's new democracy, reflects

themanner in which the populace intended to move beyond its violent andoppressive past. Doing

so, the nation decided, required more than aprocedural mechanism by which to provide amnesty

and forgiveness. Italso demanded a certain degree of disclosure and reparation. While thefirst

goal appears to have been settled to some degree, the second hasproven more elusive. As a result,

the ATS, in full compliance with theintentions of the TRC, should continue to be a valid mechanism

by whichvictims can pursue an overdue form of justice.

(1) This phrase was originally attributed to Archbishop DesmondTutu, the head of the TRC. But it

was made famous by Mandela when hereferenced the term in his inaugural address as president.

"Each ofus," he stated, "is as intimately attached to the soil of thisbeautiful country as are the

famous jacaranda trees of Pretoria and themimosa trees of the bushveld--a rainbow nation at peace

with itself andthe world." Nelson Mandela, President of South Africa, Remarks atInaugural

Address (May 10, 1994).

(2) The "unofficial" unemployment figure includesindividuals who have given up looking for work.

In addition to the highunemployment figures, almost sixty percent of South Africa continues tolive

under the poverty line, with some areas of the country reaching apoverty rate as high as

seventyseven percent. See Inequality andUnemployment: South African Economic Database (2008)(available athttp://www.gprg.org/themes/t2-inc-ineq-poor/unem/unem.pov.htm).

(2) See Donwald Pressly, South Africa Has Widest Gap Between Richand Poor, BUS. REP., Sept. 28,

2009.

(3) Id.

(4) See In Re South African Apartheid Litig., 617 F. Supp. 2d 228(S.D.N.Y. 2009); see also Business

and Human Rights Resource Centre,Case profile: Apartheid reparations lawsuits (re So. Africa)

(2010)(available athttp://www.businesshumanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSe

lectedcases/ApartheidreparationslawsuitsreSoAfrica).

(5) Id.

(6) See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)(holding that aliens that are victims of

international human rightsabuses can file suit in the United States under the ATS for

tortscommitted in violation of the law of nations).

(7) See infra p. 26 (detailing the manner in which the ATS has beenemployed by contemporaryhuman rights litigators).

(8) These criticisms include, among others: the extraterritorialapplication of the ATS does not


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comport with international law; thecrimes included under the ATS should not include aiding and

abettingviolations; holding corporations accountable for such abuses will deterinvestments in

fragile, resource starved, third world economies; and,finally, that such issues are better left to

political spheres. See JohnB. Bellinger, Former Legal Advisor to U.S. Sec'y of State,Enforcing

Human Rights in U.S. Courts and Abroad: The Alien Tort Statuteand Other Approaches, Remarks at

2008 Jonathan I. Charney Lecture inInternational Law (2008).

(9) Id. at 18.

(10) Id.

(11) Fannie du Toit, Victims Challenge Business, in TRUTH ANDRECONCILIATION IN SOUTH

AFRICA: 10 YEARS ON, 179, 179-181 (CharlesVilla-Vicencio ed., 2007).

(12) Several aspects of this debate, although critical to itsresolution, lie beyond the scope of this

paper. First, many critics haveargued that the manner in which the Apartheid Reparation

Litigationemploys the ATS does not comport with international law. They argue thatan assertion

of extraterritorial jurisdiction of this kind is an illegalinvasion of sovereignty because the plaintiffs

did not first attempt toexhaust local alternatives. See Bellinger, supra note 8, at 16. Second,many

have argued that the ATS does not pertain to crimes of aiding andabetting; or, similarly, that the

requisite mental state for provingaiding and abetting should be purpose, rather than knowledge.

ChimeneKeitner has provided a considered and thorough view of both sides ofthis debate. See

Chimene Keitner, Conceptualizing Complicity in AlienTort Cases, 60 HASTINGS L.J. 61, 62-65

(2008).

(13) See Sample Terreblance, Dealing with systemic economicinjustice, in LOOKING BACK,

REACHING FORWARD: REFLECTIONS ON THE TRUTHAND RECONCILIATION COMMISSION OF

SOUTH AFRICA, 265, 265-276 (WilhelmVerwoerd ed., 2000).

(14) See Alison Raphael, Apartheid Victims Sue Global Corporations,ONE WORLD US, Nov. 13,

2002, athttp://www.corpwatch.org/article.php?id=48561.

(15) See infra p. 16.

(16) G.A. Res. 2624 (XXV), U.N. Doc. A/8106 (Oct. 13, 1970) athttp://daccess-

ddsny.un.org/doc/RESOLUTION/GEN/NR0/348/89/IMG/NR034889.pdf?OpenElement.

(17) ERIK DOXTRADER ET AL., TRUTH AND RECONCILIATION IN SOUTHAFRICA: THEFUNDAMENTAL DOCUMENTS xi (2007).

(18) Id.

(19) LYN S. GRAYBILL, TRUTH & RECONCILIATION IN SOUTH AFRICA:MIRACLE OR MODEL?

1(2002).

(20) Id.

(21) Id. (quoting Kader Asmal, Minister of Water Affairs in SouthAfrica at the time of the TRC'sfounding).

(22) Id. at 3 (quoting the Promotion of National Unity andReconciliation Act of 1994, [section] 460


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(S. Afr.)).

(23) Id.

(24) Dave Steward, The TRC's Unfinished Business, in TRUTH ANDRECONCILIATION IN SOUTH

AFRICA: 10 YEARS ON, 24, 24-26 (CharlesVilla-Vicencio ed., 2007).

(25) Id.

(26) See GRAYBILL, supra note 19, at 3.

(27) Id.

(28) Id.

(29) ANTJE DU BOIS-PEDAIN, TRANSITIONAL AMNESTY IN SOUTH AFRICA 7(2007).

(30) GRAYBILL, supra note 19, at 3.

(31) Id.

(32) Id. at 4.

(33) See DOXTRADER ET AL., supra note 17, at 7.

(34) See BOIS-PEDAIN, supra note 29, at 19.


(36) Id.

(37) Id.

(38) See DOXTRADER ET AL., supra note 17, at 289 (quoting theTRC's Final Report).


(40) Id.

(41) Epilogue, S. AFR. (Interim) CONST. 1993.

(42) Wendy Orr, Reparation delayed in healing retarded, inREFLECTIONS ON THE TRUTH AND

RECONCILIATION COMMISSION OF SOUTH AFRICA,239, 239-249 (Wilhelm Verwoerd ed.,

University of Cape Town Press,2000).

(43) Id.

(44) Id. at 241.

(45) Id. at 243.


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(46) Id.

(47) The enumerated list also includes the category of"associated violation." The TRC goes on to

note, however, that"these are not gross violations of human rights, but are importantfor

understanding the context of the violation (for example, detention,harassment, framing, violating a

corpse after death.)" SeeDoxtrader et al., supra note 17, at 108 (quoting the Coding Frame

forGross Violations of Human Rights, TRC Report, 1998).

(48) Id.

(49) Id. at 109.

(50) See du Toit, supra note 11, at 179.

(51) See Orr, supra note 42, at 239.

(52) Mochubela Seekoe, Reparations, in TRUTH AND RECONCILIATION INSOUTH AFRICA: 10

YEARS ON, 39, 36-45 (Charles Villa-Vicencio ed., 2007).

(53) Id. at 36.


(55) Id.

(56) Id. at 20.

(57) Id at 22 (quoting the Promotion of National Unity andReconciliation Act of 1994, [section] 460(S. Afr.)) (emphasis added).

(58) Id.

(59) Id.

(60) Id.

(61) Id.

(62) Id.

(63) Id.


(65) Id.

(66) With regards to evidentiary burdens, the Committee stated,

It must be born[e] in mind that the Committee is not conducting a trial. If there is an onus on the

Applicant, the onus would vastly differ from the onus to prove beyond reasonable doubt as

required in a criminal trial.... It is not even stated in the act that the Applicant should satisfy the


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Committee. The act is silent on who (if anyone) is to satisfy the Committee and what standard of

satisfaction is required.

The TRC repeatedly described their need to be "satisfied"by the factual disclosure of the

petitioner.

This requirement, commentators have noted, "undoubtedly placessome kind of 'factual onus' upon

the applicant." Theonus, however, does not appear to rise to the level of any evidentiarystandard

which U.S. litigators may be familiar with. Any purportedclarifications that the Commission

provided in this regard were highlynuanced. See BOIS-PEDAIN, supra note 29, at 159 (quoting

testimony fromthe Amnesty Committee).

(67) In total, there were 7116 petitions for amnesty to the TRC.Yet the vast majority of these--5143

in total--were dismissed foradministrative reasons (that is, they failed to meet the parameters

foreligibility). Of those that were dismissed for administrative reasons,only 404 out of 5143 were

dismissed for failure to make a fulldisclosure. See DOXTRADER ET AL., supra note 17, at 295

(quoting the TRCOfficial Amnesty Statistics Report).

(68) Nicoli Nattrass provides a thorough account of the way inwhich corporations were featured in

the TRC, and of the extensivescholarship written on the subject. See Nicoli Nattrass, The Truth

andReconciliation Commission on Business and Apartheid: A CriticalEvaluation, 98 AFRICAN

AFFAIRS 373, 373-391 (1999).

(69) See Terreblanche, supra note 13, at 266.

(70) Id. at 265 (emphasis in the original).

(71) See Nattrass, supra note 68, at 347.

(72) Id. at 375.

(73) Id.

(74) Id.


(76) IN. (quoting the TRC Final Report).

(77) See Nattrass, supra note 68, at 367.

(78) See Seekoe, supra note 52, at 36.

(79) See Traces of Truth: The Preservation and Access to Recordsand Stories relating to the South

African Truth and ReconciliationCommission, University of Witwaterstrand and South African

ArchivesProject, http://truth.wwl.wits.ac.za/cat descr.php?cat=4 (last visitedFeb. 1, 2011).

(80) See DOXTRADER, et al. supra note 17, at 427.

(81) TRC Final Report, Volume 4, Final Recommendation on BusinessHearings, at 36 (2003).


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(82) Id. at 28.

(83) Id.

(84) The TRC's Final Report went on to state:

This argument was most clearly discernible in submissions from: business organisations such as the

Steel and Engineering Industries Federation of South Africa (SEIFSA), the South African Chamber

of Business (SACOB), the Afrikaner Handelsinstituut (AHI), the Council of South African Banks

(COSAB), the Textile Federation and the Johannesburg Chamber of Commerce and Industry;

specific companies and corporations such as South African Breweries (SAB), the Anglo American

Corporation, Old Mutual and Tongaat-Hulett; corporate executives such as Mike Rosholt of Barlow

Rand and Anton Rupert of Rembrandt International.

Id. at 19.

(85) Id. at 18.


(87) Some Glaring Absences in Business Submissions to TRC: TUTU, S.AFR. PRESS ASS'N, Nov.

11, 1997.

(88) Id

(89) Id.

(90) TERRY BELL & DUMISA BUHLE NTSEBEZA, UNFINISHED BUSINESS:SOUTH AFRICA,APARTHEID, AND TRUTH 348 (Verso 2003).

(91) Id.

(92) These figures have changed over time, as several cases wereconsolidated into one. The most

recent proceedings--In Re South AfricanApartheid Litigation--represent two primary actions:

Ntsebeza v. DaimlerA.G., and Khulumani v. Barclays National Bank Ltd. The latest figuresplaces

the class of plaintiffs at upwards of 32,000 individuals, and theclass of defendants at eight

corporations: Daimler A.G., Ford MotorCompany, General Motors, International Business Machines

Corporation("IBM"), Fujitsu Ltd., Barclays Bank, Union Bank ofSwitzerland ("UBS"), andRheinmetall Group A.G. See In ReSouth African Apartheid Litigation supra note 4, at 2.

(93) Id. at 3.

(94) Id. at 2.

(95) Id. at 4.

(96) The litigation, which now reflects a combination of severalcases, has pursued a volatile

pathway. The Southern District Court ofNew York originally dismissed the claims, but they werereinstated inpart by the Second Circuit. Subsequently, when the case arrived at theSupreme

Court, conflicts of interests--including several Justices whoowned stock in the defendant

corporations, and one Justice with a familymember who worked for a defendant corporation--left


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the Court without aquorum. In the meantime, the District Court judge who had

originallydismissed the claims passed away. On remand, the case is currently inthe hands of Judge

Shira Scheindlin of the Southern District of NewYork. See Mark Hamblett, Judge Narrows Claims

in Apartheid Torts Case,ALM MEDIA, Apr. 9, 2009.

(97) IIT v. Vencap, Ltd., 519 F.2d 100l, 1015 (2d Cir. 1975).

(98) 28 U.S.C. [section] 1350.

(99) 630 F.2d 876 (2d Cir. 1980).

(100) Filartiga, 630 F. 2d at 876.

(101) See BETH STEPHENS ET AL., INTERNATIONAL HUMAN RIGHTSLITIGATION IN U.S.

COURTS 8 (Martinus Nijhoff 1996) (2008).

(102) Filartiga, 630 F. 2d at 884.

(103) In addition to Filartiga and Sosa, the Second Circuit'sdecision in Kadic v. Karadzic marked a

landmark development in ATSlitigation. In Kadic, the court held that the ATS "grantsjurisdiction

over claims against private actors who either commitinternational law violations that do not require

state action or act inconcert with state officials." See STEPHENS ET AL., supra note 101,at 8

(citing Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)).

(104) Id. at 12.

(105) Sosa, 542 U.S. at 694.

(106) Id.

(107) Id.

(108) Id. at 695.

(109) Taking these characteristics one at a time, in order toestablish that a norm is "universal,"

courts have tended torely on the same principles as those which shape customary

internationallaw. That is, "To meet this burden, plaintiffs need not establishunanimity among

nations. Rather, they must show a general recognitionamong states that a specific practice isprohibited." Forti v.Suarez-Mason, 672 F. Supp 1531, 1540 (N.D. Cal 1987). In order for anorm to

be sufficiently "definable," it must be"sufficiently precise so that the conduct outlaw is clear,

notvague or ambiguous. It is not necessary, however, that there be aconsensus about every detail

of the definition: it is enough that therebe agreement that the conduct in question violates the

internationalnorm." Id. Finally, the requirement that a norm be"obligatory" borrows from the

principle of opinio juris incustomary international law--that is, in order for a practice to

beconsidered customary international law, individuals and nations mustadhere to the norm not

just out of a sense of routine, but rather out ofa sense of legal obligation. Id.

(110) See STEPHENS ET AL., supra note 101, at 60.

(111) Id. at 63.


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(112) In doing so, the Supreme Court re-iterated its cautiousapproach. It held that "the door is still

ajar subject to vigilantdoor-keeping, and thus open to a narrow class of international normstoday."

Sosa, 542 U.S. at 696.


(114) See Hamblett, supra note 96, at 1.

(115) See In Re South African Apartheid Litig., supra note 4, at26.

(116) Id.

(117) See Hamblett, supra note 96, at 1.


(119) Id.

(120) See DOXTRADER ET AL., supra note 17, at 108 (quoting theCoding Frame for Gross

Violations of Human Rights, TRC Report, 1998).


(122) Id.

(123) Id. at 526.

(124) Filartiga v. Pena-Irala, 577 F. Supp. 860, 860 (E.D.N.Y.1984).

(125) Id.

(126) See M. Cherif Bassiouni, International Recognition ofVictims' Rights, 6 HUM. RTS. L. REV.

203, 234-37 (2006).


(128) Some reports place the figure "in the billions."See Alison Raphael, Apartheid Victims Sue

Global Corporations, ONE WORLDUS, Nov. 13, 2002, athttp://www.corpwatch.org/article.php?id=4856I.


(130) See Bellinger, supra note 8, at 18.


(132) David Wallach, The Alien Tort Statute and the Limits ofIndividual Accountability in

International Law, 46 STAN. INT'L L.J. 162, 164 (2010).



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(134) Id. at 41 (quoting Khulumani v. Barclays Nat'l BankLtd., 504 F.3d 254 (2d. Cir. 2007) at

277).

(135) Id. at 42 (quoting Mastafa v. Australian. Wheat Bd. Ltd., No.07 Civ 7955(GEL), 2008 WL

43784443, at *4 (S.D.N.Y. 2008)).

(136) Id.

(137) A circuit split exists with regards to the proper mentalstate for aiding and abetting in

international law. Chimene Keitner hasprovided a considered and thorough view of both sides in

this debate.See Chimene Keitner, Conceptualizing Complicity in Alien Tort Cases, 60HASTINGS

L.J. 61, 62-65 (2008).

JULIAN SIMCOCK, J.D. Candidate, Stanford Law School, M.P.P.Candidate, Harvard Kennedy

School, 2013. I am grateful to Allen Weiner,Diane Chin, and Jenny Martinez for their efforts and

guidance, and tothe members of the Stanford Journal of International Law for veryhelpful

commentary.

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