The Apartheid lawsuit

30 November 2002 by Charles Abrahams


This paper is a synopsis of some of the factual nature of the averments and the legal arguments advanced in the complaint, hence the absence of footnotes. Furthermore, this paper does not purport to extract all the important and definitive substance of the complaint. The full text of the complaint can be accessed at www.cmht.com

Charles Abrahams, the author is the attorney of record, instructed by Jubilee South Africa on behalf of the Khulumani Support Group to institute legal proceedings in this matter.

Introduction

On Monday, 11 November 2002, the 32 000 member-strong South African victim support organisation, the Khulumani Support Group, filed a lawsuit in the Eastern District of New York, citing 21 foreign banks and corporations as defendants for personal injuries suffered as a direct result of the complicity these banks and corporations had with the Apartheid regime. The lawsuit relies upon the Alien Tort Claims Act (ATCA), a US legal remedy, which allows non-US citizens to institute legal proceedings in the United States against any person who has committed violations of the laws of nations, provided that such person is present in the United States.

This lawsuit avers that defendant banks and corporations aided and abetted the Apartheid regime by providing bank loans, military technology, transportation for military use, oil and fuel to the military and police and armaments, which enabled the Apartheid regime to commit violations of the laws of nations against the people of South Africa, such as torture, extra-judicial killing, arbitrary detention, sexual violence, etc. The Khulumani Support Group represents victims in South Africa who had sustained injuries in the above categories as a result of the Apartheid regime’s violations of the laws of nations.

This lawsuit aims to attach legal liability to the actions of defendant banks and corporations by showing that their support for the Apartheid regime was not only morally wrong, but also legally wrong. The result hereof is for claimants to claim for just and equitable relief. Furthermore, this suit is important in that it would be the first time that a court of law would rule on Apartheid as a Crime Against Humanity, other than it being re-stated in various international instruments, the recent being the Rome Statute of the International Criminal Court.

As for human rights activists, non-governmental organisations and other non-state actors who increasingly deal with violations by multinational corporations and states of norms protected under the laws of nations or customary international law, this lawsuit is important in that it shows how creatively the Alien Tort Claims Act can be used and in so doing contributing to further enhancing the general jurisprudence against corporations and states for that matter, already firmly established through this mechanism.

Plaintiffs & Defendants

The Khulumani Support Group, together with 85 named from within its ranks constitute the Plaintiffs. Khulumani is entitled to bring this suit as an unincorporated association in terms of Rule 23 of the Federal Rules subject to it fulfilling the prerequisites for a class action. However, it is hoped that the entire membership of Khulumani could be signed up individually and cited as additional Plaintiffs, obviating the need for having to go through class certification process. By naming plaintiffs individually and listing their experiences one by one, we are able to give substance to the violations of averred in the complaint.

The categories of violations referred to above are all violations under customary international law. These are to repeat, extra-judicial killings, torture, indiscriminate shootings, sexual assault and arbitrary detention. Each of the remainder of the 32 000 strong membership of Khulumani will be named individually and their respective injuries will be categorised under any one of the above categories.

As for the Defendants, they constitute in total, 21 corporations and banks spread over six countries, (Switzerland, Germany, France, The Netherlands, Britain and the United States) and six industries, (banking, oil, technology, armaments, transportation and mining). By name, these corporations and banks are Barclays National Bank Ltd., British Petroleum P.L.C., Chevron Texaco Corporation and Chevron Texaco Global Energy Incorporated, Citigroup Incorporated, Commerzbank, Credit Suisse Group, Daimler-Chrysler AG and AEG Daimler-Benz Industrie, Deutsche Bank AG, Dresdner Bank AG, Exxon Mobil Corporation, Fluor Corporation, Ford Motor Company, Fujitsu Limited, General Motors Corporation, International Business Machines Corporation, J.P. Morgan Chase, Rheinmetall Group AG, Rio Tinto Group, Shell Oil Company, Total-Fina-Elf, UBS AG, and provision for corporate does 1 - 100.

Legal theory

The complaint seeks to hold the above corporations and banks liable on the principles of secondary liability, which means to say, for being aiders and abettors of a crime against humanity. Both domestic and international law recognise these principles and date back to the 1700s when in 1794, the Third US Congress enacted a law barring the building or equipping of vessels fitted for the carrying on of the slave trade. As part of that law, Congress required forfeiture and payment of $2,000 by ’all and every person, so building, fitting out, equipping, loading, or otherwise preparing, or sending away, any ship or vessel, knowing or intending that the same shall be employed in such trade or business … or any ways aiding or abetting therein … ."

In 1807, the United State enacted a law prohibiting the importation of slaves and required forfeiture and payment of $20 000 by persons who aided and abetted in the ’building, fitting out, equipment, loading, or otherwise preparing or sending away of vessels intended for the importation of slaves.

In 1820, Congress determined that the slave trade was so repugnant that perpetrators as well as their aiders and abettors should be subject to the death penalty and the slave trade formally should be equated to the international crime of piracy.

The Nuremberg Tribunals confirmed these principles and held that that those who aid and abet crimes in violation of customary international law are liable for those acts. It held that:

[t]hose who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it … He had to have the cooperation of statesmen, military leaders, diplomats and businessmen. When they, with the knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent … if they knew what they were doing.

More recently, the International Tribunal for the Former Yugoslavia in the case of the Prosecutor v Furundzija held that “the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The tribunal noted that the practical assistance “need not constitute an indispensable element” of the crime but that it is enough that the assistance makes “a significant difference to the commission of the criminal act by the principal.” The tribunal in the case of the Prosecutor v Tadic that liability is appropriate where “the criminal act most probably would not have occurred in the same way” without the acts of the aider and abettor

Substantial assistance given to the Apartheid regime
It is precisely this substantial support, which Defendant banks and corporations have given to the Apartheid regime, enabling it to commit the crime of Apartheid, which resulted in the violations of the laws of nations and the injuries sustained by the complainants in this lawsuit. A few examples from the complaint suffice to make this point:

As for the Banking Industry

Barclays Bank in 1976 acquired R 10 million of South Africa Defence Bonds, constituting the largest single purchase and representing about one-eight of all the bonds sold. Such bonds directly financed the South African Armed Forces. The cheque for the bonds was personally presented to the acting head of the Defence Force at a ceremony where Barclays managing director, Bob Aldworth stated that "the bank regards the subscription as part of its social responsibility not only to the country at a particular stage in its history, but also to our staff members who have been called up to do military service.

Barclays Bank director, Basil Hersov, was also a member of the South African Defence Advisory Board, established by the then South African Prime Minister, P.W. Botha, who had this to say to the House of Assembly in 1980:

We have obtained some of the top business leaders in South Africa to serve on the Defence Advisory Board in order to advise me from the inside, not only about the armaments industry, but also about the best methods to be applied within the Defence Force … I want to unite the business leaders of South Africa, representative as they are, behind the South African Defence Force. I think I have succeeded in doing so."

As for Oil Industry

In the oil industry, Shell Oil Company stands out as the largest supplier of oil and petroleum to South Africa during Apartheid, importing almost 7.5 million tons of oil or 20% of South Africa’s estimated needs. A report commissioned by Shell Oil U.S., known as the Pagan Report, noted that Shell supplied 5 000 barrels per day to the South African security forces. This constituted about 10% of Shell’s contribution to total South African petroleum consumption. In May 1980, a top Shell official Mr. De Bruyn, admitted that Shell did not differentiate among its clients and supplied schools, the armed forces and the police alike with oil products. During a radio interview in 1986, a Shell spokesman admitted that Shell was supplying fuel to the South African police and armed forces: “The alternative, he said, would be that Shell withdraw from South Africa, but then the police and army vehicles would use another brand.”

As for the Transportation Industry

One Mecedes Benz (Daimler Chrysler) employee of Stuttgart, Germany, Joachim Jungbeck travelled to various Mecedes Benz factories in South Africa and reported to a shareholder meeting in July 1988:

During a company visit, I was proudly shown aggregates of army vehicles, including huge numbers of axles from armoured vehicles … Storerooms contained large numbers of engines, axles and transmissions for Unimogs and armoured vehicles of the South African police and army. In between were parts for the armoured vehicle the “Buffel.” The Buffel was used in the war against Angola and for the occupation and control of black urban settlements.

In 1978, a year after the United Nations Security Council enacted a mandatory arms embargo, South Africa’s minister for Economic Affairs announced the establishment of the AtlantisDiesel (ADE) factory, a few kilometres outside of Cape Town. Daimler-Benz owned 12.45% thereof. For Daimler-Benz, this was an extremely lucrative business opportunity, as it was required by law that ADE engines be built into each and every truck or tractor assembled in South Africa. As a result, the SAMIL and SAMAG military trucks, the army and police Casspirs, Hippos, Buffels and Duiker had to be installed with an ADE engine.

As for the Armaments Industry

Rheinmetall Group is a German company with its principal place of business in Dusseldorf. It is a top producer in the German armaments industry with factories Dusseldorf and Unterluss. In 1999, Rheinmetall purchased another large Swiss armament producer Oerlikon-Contraves Defence.

Rheinmetall applied for a licence to export a plant to Paraguay, using a fictitious company, “Sudamerika Paraguay Exportation-Importation.” Once the exported plant had reached the port of Brazil, the freight was reloaded onto a ship bound for Durban, South Africa. The plant began operations in Pretoria in 1979 and by 1985 it was fully automated. After a criminal investigation was launched against Rheinmetal in 1980, it continue to provide training to members of the South African Defence Force in the use of certain artillery systems on its Unterluss test range.

Dieter Burhle of Oerlikon-Contraves on the other hand was like most top managers of Swiss companies doing business in South Africa. Five years after the General Assembly declared apartheid a crime against humanity, Burhle received the highest military order from the apartheid regime in 1978 at the request of P W Botha. His associate, Gabriel Lededinsky, received a second-class award. Burhle was convicted by a federal court in 1970 after he was found guilty of having illegally delivered anti-aircraft weapons to South Africa between 1964 and 1968. The awards they received have been kept secret until the discovery by one of the Jubilee South Africa researchers, Gottfried Wellmer, in November 2001.

As for the Technology Industry
Howard Berman, sponsor of legislation to ban computer sales to South Africa testified before the House Foreign Affairs Committee in 1985:

Computers are essential to the South African governments’ pervasive control over every aspect of existence for every black individual. From the age of sixteen, all Africans must carry passbooks indicating where they have permission to live and work and whether they are allowed to live with their families … Computers help in the collection, retrieval and use of this information … As the South African economy and population grew, political leaders became concerned that a growing white [man]power shortage would inhibit the implementation of apartheid. Computers have helped solved that problem. Moveover computers have enabled the South African government to strengthen its grip on the population and intensify apartheid enforcement over recent years. Pass law arrests doubled between 1980 and 1982. Political detentions have increased sharply … Armed with more thorough and more readily available information on black residents, the government has accelerated forced removals of whole communities from so-called ’black-spots’ - areas where black families have lived for generations, but which the government has declared ’white.’

IBM had extensive involvement in the apartheid regime in that it was the largest computer supplier in South Africa, with total annual sales estimated at R 300 million. IBM computers were used by the Department of Defence, the Department of Interior and the Bantu Administration Boards. During the 1970s, IBM for several years knowingly rented a Model 370 computer system to the South African Department of Interior, which was used for the regime’s national identity system, designating people as Whites, Asians, Coloureds and Blacks.

ICL on the other hand supplied the South African government with 588 computers used by the police, local authorities and South Africa’s defence industry. In particular, it provided the Department of Plural Affairs, which operated 14 Bantu Administration Boards and served as the of the apartheid government in the black townships, with ILC computers, which stored the fingerprints and personal details on the 16 million South Africans then classified as ’black’ and used to maintain the passbooks that were key to the ’influx control.’

Relief sought

Claimants seek judgment against Defendants in the following:

a) Declaring that Defendant corporations and banks committed a tort in violation of customary international law;

b) Declaring that Defendant corporations and banks have violated the Alien Tort Claims Act;

c) Ordering Defendants to make available all documents or other records related to their operations in and/or cooperation with the Apartheid regime;

d) An order awarding claimants compensatory and punitive damages arising out of the unlawful behaviour of Defendants;

e) Costs of suit and further and or alternative relief.

AND a Demand for a Jury trial.



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