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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.
(35) See GRAYBILL, supra note 19, at 4.
(36) Id.
(37) Id.
(38) See DOXTRADER ET AL., supra note 17, at 289 (quoting theTRC's Final Report).
(39) See GRAYBILL, supra note 19, at 33.
(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.
(54) See BOIS-PEDAIN, supra note 29, at 18.
(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.
(64) See BOIS-PEDAIN, supra note 29, at 174.
(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.
(75) See Terreblanche, supra note 13, at 266.
(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.
(86) See Terreblanche, supra note 13, at 273.
(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.
(113) See STEPHENS ET AL., supra note 101, at 47.
(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.
(118) See In Re South African Apartheid Litig., supra note 4, at32.
(119) Id.
(120) See DOXTRADER ET AL., supra note 17, at 108 (quoting theCoding Frame for Gross
Violations of Human Rights, TRC Report, 1998).
(121) See STEPHENS ET AL., supra note 101, at 523.
(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).
(127) See STEPHENS ET AL., supra note 101, at 524.
(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.
(129) See Terreblanche, supra note 13, at 267.
(130) See Bellinger, supra note 8, at 18.
(131) See STEPHENS ET AL., supra note 101, at 60.
(132) David Wallach, The Alien Tort Statute and the Limits ofIndividual Accountability in
International Law, 46 STAN. INT'L L.J. 162, 164 (2010).
(133) See In Re South African Apartheid Litig., supra note 4, at35.
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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.