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

• Author: Simcock, Julian

1. 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 Amnesty III. 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 fighting South Africa's apartheid regime, Nelson Mandela and the leadership of the African National Congress (ANC) were presented with an uneasy proposition. In exchange for conditional grants of amnesty for many of the most ruthless perpetrators of apartheid aggression, the white ruling National Party (NP) would agree to a power sharing arrangement with the ANC--the first step towards fully democratic elections in a country with more than seventy percent black voters. The ANC's decision, and the course that South Africa has charted since, is now well known. Rather than attempt to satiate any desires for retribution, South Africa would pursue a course of reconciliation. Whites, as well as blacks, would be welcome to remain, and to participate in the founding of a fully inclusive new democracy--a "rainbow nation." (1)

   One method the South African leadership chose to facilitate this peaceful transition was the Truth and Reconciliation Commission (TRC). Broadly speaking, the Commission was intended to provide a pathway by which to achieve forgiveness while also ensuring that victims were provided a degree of truth and the opportunity for reparations. As is common in many historical circumstances of state-sponsored violence, enabling victims to share their stories and uncover the truth facilitates a process of healing, and restores a level of dignity to those who suffered. The result, as advocates of the TRC assert, is that a degree of forgiveness can then take place, and the urge for retribution or violence dissipates.

   Although the TRC facilitated a degree of common understanding, almost two decades later, South Africa remains a nation of extreme inequality. The unofficial unemployment rate is approximately forty-two percent, (2) and in 2009, South Africa overtook Brazil as the world's "most unequal country" in economic terms. (3) Fueled in part by the lack of economic progress, and also by leftover frustrations regarding the methodologies of the TRC, some South Africans have pursued alternative methods of repairing the economic gap and accessing justice. In 2002, a large group of South African plaintiffs brought suit against twenty corporate defendants that were conducting business in South Africa during Apartheid. (4) The plaintiffs allege that these corporations were complicit in a range of human rights abuses, including "killings, torture and rape." (5) The legal vehicle that the plaintiffs used was the Alien Tort Statute (ATS), a strategy that that has become somewhat controversial in the domestic and international legal arenas. The ATS expressly enables aliens that have been victims of an international human rights abuse in violation of the law of nations to bring civil actions in U.S. federal courts. (6) The range of violations which fall under the Statute's purview are narrow, but it has become a potent tool for human rights litigators. (7)

   The case against these corporations (herein, the "Apartheid Reparation Litigation"), has received a wide array of criticisms. (8) A common subtext, however, runs through many of the attacks. The issue of Apartheid, critics assert, has already been resolved by South Africa domestically--the TRC has run its course, and it achieved the peaceful transition to democracy that it was intended to achieve. The trajectory of this argument is well captured by a 2008 speech made by John Bellinger, the Legal Adviser to the Secretary of State under President George W. Bush. "Imagine," Bellinger asks, "what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow--era racial restrictions, or ... even for slavery." (9) Aside from the sovereignty considerations, he argued that the "United States has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures.... From the South African perspective, the apartheid case must look very similar." (10) South Africa, in other words, has put this ugliness to bed. Digging it back up now, as another scholar suggests, would "subvert what the Truth and Reconciliation Commission sought to achieve." (11)

   In light of these criticisms, a closer re-evaluation of the intentions behind South Africa's Truth and Reconciliation Commission is instructive. A thorough review of the history and structure of the TRC, the nature of corporate participation in the TRC, and also the narrow realm in which the ATS can be applied, reveals that despite 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 achieve any form of justice, (13) this analysis does not follow that vein of logic; nor does it attempt to transpose one form of justice on another. Instead, the analysis herein argues that the TRC was conscious of its own limitations and intended for other avenues of pursuing justice to be available. In short, with regards to the TRC's hearings and the subsequent Apartheid Reparation Litigation, the Commission intended that there be room for both.

   The stakes in the ongoing litigation are high. For the defendants, the economic risks are substantial (some anticipatory reports place the damage figure "in the billions"). (14) It is also, however, an opportunity for some entities to prove that they were not complicit in Apartheid, and to be free of any such stigma in the international community. For the plaintiffs, this suit is an opportunity to obtain what many believe is a long overdue form of justice. As the analysis herein depicts, much of the harm which resulted from abuses committed during apartheid has yet to be accounted for. Finally, beyond the individual interests, the ATS itself emerges as a key stakeholder in the present litigation. The statute has been the recipient of a range of unfortunate criticisms--the most common of which is that the Statute unfairly enables US courts to trifle with the affairs of sovereign nations. The findings contained herein--namely, that the ATS largely comports with the intentions of South Africa's TRC--mitigate these criticisms and strengthen the ground upon which the Apartheid Reparation Litigation can proceed.

   The contours of this analysis include three parts. Part I explores the historical context and structure of the TRC, as well as the specific nature of the TRC's reparations and amnesty provisions. It reveals that contrary to some assessments, the TRC was explicitly designed to achieve reparation as well as forgiveness, and that the offer of amnesty was never made unconditionally. Part II explores the specific role of corporations in the TRC, and reveals that despite its assessment that a flat punitive tax should be applied to all businesses, the TRC did not intend to limit future avenues by which corporations could be held liable. In fact, given the dismal (or non-existent) performance by many corporations, there is a strong argument that the TRC intended for future mechanisms to facilitate additional compensatory justice. Finally, Part III explores the evolution of the ATS in domestic case law, and the specific nature of the Apartheid Reparation Litigation. Despite the ATS's focus on punitive damages, this Part concludes that the narrow manner in which the ATS operates, as well as its specific approach to corporate complicity, are both in keeping with the intentions of the TRC.

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

   A fuller evaluation of the historical and structural characteristics of the TRC helps to reveal which future legal proceedings (if any), the Commission might have found acceptable. Even prior to an analysis of the TRC's specific "business hearings," an assessment of its overarching design lends considerable guidance. First, although the Commission was obviously intended to be the primary vehicle by which the country would transition towards reconciliation, it was not intended to be the sole method of doing so; nor was it intended to achieve forgiveness alone. Second, the TRC's focus on compensatory justice aimed to provide victims with monetary compensation only if they were the victims of gross human rights violations. Third, the TRC expressly enabled alternative avenues of achieving justice to continue unabated, specifically those that had been obtained in the civil realm. (15) Finally, in order for a perpetrator to obtain amnesty, the TRC required that an exchange take place. The truth, in "full" form (albeit far from complete form) had to be presented. Failing this, the TRC had no obligation, or power, to shield perpetrators from liability.

   1. Historical Context

      Beginning in 1958, the National Party of South Africa instituted a systemic and explicitly racialized policy of classifying the country's populace. The structure the government implemented--apartheid--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, in 1970, the U.N. General Assembly declared apartheid a "crime against humanity," noting...