Blog: South Africa
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October 25, 2016
We’re very pleased to cross-post this piece by Emily Nagisa Keehne, Associate Director of HRP’s Academic Program, who argues in The Guardian that it’s vital the court of appeals uphold a ruling that makes South Africa’s gold mining industry accountable to women whose husbands died from silicosis. Emily co-authored the piece with her former colleague, Dean Peacock, Executive Director of Sonke Gender Justice in South Africa.
“Justice is long overdue for the widows of South African mineworkers”
For decades, women in rural South Africa have shouldered the burden of caring for mineworkers who return home with silicosis contracted in South Africa’s gold mines. These women do the back-breaking and emotionally taxing work of caring for men who are dying slow and painful deaths, their lungs irreparably scarred by the silica dust they breathe in underground.
Testimony from women in South Africa’s Eastern Cape province reveals the brutal toll silicosis has taken on families. “My husband was the sole breadwinner,” recalled one woman. “If we had money, he had sent it. During his last days, he lost his strength and his chest closed up. It was difficult for him to cover himself with blankets, so I would cover him up. He could not go outside to relieve himself, so he would do it right there in the bed. I would have to throw it away. On his last day his chest closed up completely. I am left with almost nothing.”
From village to village, such stories were a recurring refrain. “I used to carry [my husband] around,” said another woman. “I used to go from house to house asking for food, we had children going to school. At times I would get piece jobs so we could eat.”
Eventually, this woman’s husband became unable to breathe. He died before he could even get in a car to go to hospital.
These conditions are the predictable outcome of deliberate mining policies.
Starting in the 1880s, when gold was first discovered, gold mining houses colluded with British colonial governments to put in place a range of taxes and legislation that forced black men to leave their land to work in the mines.
Once there, these men were forced to do dangerous jobs. Their work exposed them to malnutrition, tuberculosis and dangerous levels of silica dust. Many developed silicosis, which scars the lungs, makes breathing difficult, increases vulnerability to tuberculosis and can ultimately cause asphyxiation.
Black women, on the other hand, were required to remain in rural areas, where they carried out the work of raising workers and, often, caring for them when they later returned home desperately ill.
This exploitation remained entrenched for most of the 20th century. The mining industry corrupted the medical examination boards ostensibly in charge of mineworkers’ health. The boards then underreported cases of silicosis, decreasing workers’ eligibility for compensation. Together with the apartheid government, the industry set up a distinct and difficult to use compensation scheme. One study by Deloitte found that less than 1.5% of claims had been paid out to eligible miners.
The consequences of this arrangement were predictable. A 2009 report revealed that almost all miners interviewed in the former republic of Transkei, the largest provider of mining labour, had symptoms of respiratory illness. None were formally employed. About 92% said they went without food or experienced hunger on a monthly basis.
South Africa’s post-apartheid constitution has allowed human rights lawyers and mineworkers to begin to hold mines accountable.
In 2011, South Africa’s constitutional court issued a landmark ruling allowing Thembekile Mankayi, who had contracted silicosis working underground, to sue AngloGold Ashanti for full loss of wages, damages and medical expenses, regardless of what was already available to him under the miner-specific compensation scheme.
Human rights lawyers subsequently petitioned the courts to allow a class action lawsuit; potentially, hundreds of thousands of miners would join together to sue for as much as 20-40bn rand (roughly £1.2bn-£2.3bn).
Two South African NGOs – the Treatment Action Campaign (TAC), an Aids activist group, and Sonke Gender Justice, a gender equality organisation – applied to join the case as amici curiae (impartial advisers to the court), introducing evidence on the social costs of silicosis.
TAC drew attention to the relationship between silicosis and TB. Sonke offered evidence on the gendered impact of silicosis, particularly the financial, emotional and physical burden borne by women and girls who care for sick mineworkers when they return home, often foregoing their own income and education. The amici argued for the authorisation of the class action, and the transmission of claims to widows and dependents.
Despite opposition by the mining houses, the court admitted them as amici. Sonke’s affidavit on the gendered impact of silicosis was also admitted into the proceedings.
In May this year, the Johannesburg high court granted its historic ruling. It amended existing common law to allow general damages to be transmitted to the widows and dependents of miners who died in the early stages of litigation. Prior to this ruling, if plaintiffs died before pleadings had closed their claims would become void.
The ruling sets an important precedent that affirms women’s rights and the imperative to remedy the gendered harms imposed by the mining industry. The mining companies are appealing the decision, however.
As the case unfolds, it is critical to remember what is at stake. A century of damage caused by the South African gold mining industry requires remedy. The mining companies must pay long overdue compensation to the workers, widows, children, and communities they impoverished.
October 12, 2016
For Immediate Release
South Africa: Protect Residents’ Rights from Effects of Mining
Government Response to Environmental and Health Threats Falls Short
(Cambridge, MA, October 12, 2016)—South Africa has failed to meet its human rights obligations to address the environmental and health effects of gold mining in and around Johannesburg, the Harvard Law School International Human Rights Clinic (IHRC) said in a new report released today.
The 113-page report, The Cost of Gold, documents the threats posed by water, air, and soil pollution from mining in the West and Central Rand. Acid mine drainage has contaminated water bodies that residents use to irrigate crops, water livestock, wash clothes, and swim. Dust from mine waste dumps has blanketed communities. The government has allowed homes to be built near and sometimes on those toxic and radioactive dumps.
Examining the situation through a human rights lens, the report finds that South Africa has not fully complied with constitutional or international law. The government has not only inadequately mitigated the harm from abandoned and active mines, but it has also offered scant warnings of the risks, performed few scientific studies about the health effects, and rarely engaged with residents on mining matters.
“Gold mining has both endangered and disempowered the people of the West and Central Rand,” said Bonnie Docherty, senior clinical instructor at IHRC and the report’s lead author. “Despite some signs of progress, the government’s response to the crisis has been insufficient and unacceptably slow.”
The report is based on three research trips to the region and more than 200 interviews with community members, government officials, industry representatives, civil society advocates, and scientific and legal experts. It provides an in-depth look at gold mining’s adverse impacts and examines the shortcomings of the government’s reaction.
For example, although acid mine drainage reached the surface of the West Rand in 2002, the government waited 10 years before establishing a plant that could stem its flow. In addition, the government has not ensured the implementation of dust control measures and has left industry to determine how to remove the waste dumps dominating the landscape.
The Cost of Gold calls on South Africa to develop a coordinated and comprehensive program that deals with the range of problems associated with gold mining in the region. While industry and communities have a significant role to play, the report focuses on the responsibility of the government, which is legally obliged to promote human rights.
The government has taken some positive steps to deal the situation in the West and Central Rand. This year, it pledged to improve levels of water treatment by 2020. In 2011, it relocated residents of the Tudor Shaft informal settlement living directly on top of a tailings dam. The government along with industry has also made efforts to increase engagement with communities.
Nevertheless, The Cost of Gold finds that the government’s delayed response and piecemeal approach falls short of South Africa’s duties under human rights law. As a result, the impacts of mining continue to infringe on residents’ rights to health, water, and a healthy environment, as well as rights to receive information and participate in decision making.
“The government should act immediately to address the ongoing threats from gold mining, and it should develop a more complete solution to prevent future harm,” Docherty said. “Only then will South Africa live up to the human rights commitments it made when apartheid ended.”
For more information, please contact:
In Cambridge MA, Bonnie Docherty: firstname.lastname@example.org
September 20, 2016
Posted by Cara Solomon
Now that we’re in the rhythm of the semester, it’s time to introduce some new faces in the International Human Rights Clinic. We’re thrilled to welcome five new clinical advocacy fellows, all accomplished lawyers with different expertise and experiences. They’re leading clinical projects this semester on a range of new topics, from human rights protection in investment treaties to armed conflict and the environment.
In alphabetical order, here they are:
Fola Adeleke is a South African-trained lawyer who specializes in international economic law and human rights, corporate transparency, open government and accountability within the extractives industry. This semester, his projects focus on human rights protection in investment treaties and reconfiguring the licensing process of mining to include more consultation with communities.
Rebecca Agule, an alumna of the Clinic, is an American lawyer who specializes in the impact of conflict and violence upon individuals, communities, and the environment. This semester, her project focuses on armed conflict and the environment, with a focus on victim assistance.
Juan Pablo Calderón-Meza, a former Visiting Fellow with the Human Rights Program, is a Colombian attorney whose practice specializes in international law and human rights advocacy and litigation. This semester, his project focuses on accountability for corporations and executives that facilitated human rights abuses and atrocity crimes.
Yee Htun is the Director of the Myanmar Program for Justice Trust, a legal non-profit that partners with lawyers and activists to strengthen communities fighting for justice and human rights. Born in Myanmar and trained as a lawyer in Canada, Yee specializes in gender justice and working on behalf of refugee and migrant communities. This semester, her project focuses on women advocates in Myanmar.
Salma Waheedi is an attorney who specializes in international human rights law, Islamic law, gender justice, family law, comparative constitutional law, and refugee and asylum law. Born in Bahrain and trained as a lawyer in the U.S., Salma currently holds a joint appointment with Harvard Law School’s Islamic Legal Studies Program, where she focuses on family relations in Islamic jurisprudence. This semester, her project focuses on gender justice under Islam.
We’re so pleased to have the fellows as part of our community this semester. Please swing by at some point to introduce yourself and say hello.
August 22, 2016
Posted by Gerald Neuman
Today I have the honor of announcing an exciting new appointment at the Human Rights Program. Emily Nagisa Keehn has joined HRP as Associate Director for the Academic Program. Emily is a dynamic and skillful human rights lawyer, who will bring leadership and experience to the work of the Academic Program, and who looks forward to developing strong relationships with our students. She will also act as an important liaison between the HRP Academic Program and other parts of the Law School and the University.
Emily joins the Human Rights Program from Sonke Gender Justice in Cape Town, where she was the head of policy development and advocacy. In this role, she directed strategic litigation, research, parliamentary engagement, and advocacy pertaining to human rights, gender, and HIV. She primarily focuses on human rights issues at the intersection of criminal justice, gender, and health.
Previously, Emily worked for UCLA School of Law, where she developed and ran a post-graduate legal fellowship for Southern African public interest lawyers, culminating in an LL.M. and a one-year work placement with a human rights organization. Emily’s experience spans Southern Africa, Southeast Asia, Israel and the U.S. She holds a B.A. in Anthropology from the University of California, San Diego, and a J.D. from UCLA School of Law.
At HRP, Emily will play a substantive and managerial role in innovating and implementing academic activities, including the speaker series, conferences, and the Academic Program’s various fellowships.
We welcome her warmly and look forward to your meeting her soon.
June 29, 2016
Statement on the end of the In re South African Apartheid Litigation
June 29, 2016
Last week, the U.S. Supreme Court declined to hear a major corporate accountability case, Ntsebeza, et al., v. Ford Motor Co., et al., that represented the last opportunity for South Africans to achieve justice in U.S. courts for apartheid-era crimes. The U.S. corporations – Ford and IBM – were alleged to have purposefully facilitated violations of international law by enabling the denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime. What began fourteen years ago as litigation against dozens of multinational corporations has effectively ended without ever even entering discovery.
We are deeply disappointed for our clients and the communities who suffered as a direct result of corporate complicity in violence and oppression. We are also extremely concerned about the reluctance of U.S. courts to take on powerful corporate actors that have involved themselves in human rights abuses abroad. Continue Reading…
June 3, 2016
Posted by Tyler Giannini and Susan Farbstein
Last week, the International Human Rights Clinic and co-counsel filed our reply brief with the U.S. Supreme Court, responding to Ford and IBM’s opposition to the petition for a writ of certiorari in the in re South African Apartheid Litigation. The reply brief points out the clear circuit splits that require the Supreme Court’s attention, flatly rejecting Defendants’ claim to the contrary. Continue Reading…
April 5, 2016
The challenges are immense: schools built of mud, overcrowded and collapsing classrooms, unsanitary toilets, inadequate water supply, insufficient electricity, and a painful lack of science labs, libraries, computer access, and sports fields. For years, our partners in South Africa, Equal Education (EE) and Equal Education Law Centre (EELC), have fought for safe, quality schools—and won many important victories. Now a new short film is documenting their ongoing work, sharing the stories of affected students and highlighting how community activism and creative lawyering can bring about real change.
EE first launched its infrastructure campaign back in 2010; a hard-won court victory against the Minister of Basic Education led to the promulgation of binding norms and standards for school infrastructure in 2013; and by November 2016, all schools across the country will be required to have running water, basic sanitation, and electricity, while no schools can be built entirely from wood, mud, metal, or asbestos.
The film, made in partnership with Adam Stofsky’s (JD ’04) New Media Advocacy Project, documents infrastructure problems in the Eastern Cape in particular. Students, teachers, parents, and principals speak about the devastating impact that poor facilities have on learning outcomes. The piece is an inspiring testament to the power of storytelling and to the movement that EE and EELC have built. Our Clinic is proud to have supported it since 2012.
February 17, 2016
Posted by Susan Farbstein
Last week in South Africa, there was an important—and surprising—development related to the 1983 torture and murder of Nokuthula Simelane. I previously wrote about the case as an egregious example of the lack of accountability for apartheid-era crimes, as well as the apparent political obstruction that effectively blocked the investigation and prosecution of nearly 300 post-Truth and Reconciliation Commission (TRC) cases.
But perhaps the tide is turning. On February 8th, the National Prosecuting Authority (NPA) announced that it will charge four former apartheid security policemen with Simelane’s kidnapping and murder. This represents the first prosecution of apartheid-era perpetrators since a 2007 plea agreement with five senior police officers, among them Adriaan Vlock, who served as Minister of Law and Order.
Former TRC Chairman Archbishop Desmond Tutu described the breakthrough as a “most significant and historic decision,” but also questioned why the NPA delayed for decades and proceeded only after Simelane’s family launched a High Court case to compel the NPA into action. The NPA has said that it is moving ahead now because of the strength of the evidence and merits of the case, which create reasonable prospects of a successful prosecution.
The four former members of the Soweto Special Branch—Willem Helm Johannes Coetzee, Anton Pretorius, Frederick Barnard Mong, and Msebenzi Radebe—are due to appear in court on February 26th. Although three of the accused applied to and received amnesty from the TRC for Simelane’s abduction, none applied for her murder. Because of this failure to make a full disclosure, the case was referred to the NPA and now appears set to proceed.
February 10, 2016
Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid
Posted by Tyler Giannini and Susan Farbstein
The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.
The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the “denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”
Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.
The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.
As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.
August 19, 2015
Posted by Tyler Giannini and Susan Farbstein
Last week, the Clinic and co-counsel filed a petition for rehearing en banc, asking the Second Circuit to allow Plaintiffs’ claims to go forward against Defendants Ford and IBM in In re South African Apartheid Litigation. The petition responds to a Second Circuit panel decision that denied Plaintiffs the ability to proceed. The panel ruling found the allegations were not sufficient to show that Ford and IBM had “purposefully” aided and abetted the South African state in committing international law violations.
The petition, however, argues:
The ramifications of the panel’s decision are brought into stark relief when measured against the Nuremberg tribunal. If the Nazi industrialists convicted at Nuremburg had operated in the United States, rather than Germany, when they sold Zyklon B gas to support and facilitate the Holocaust, the panel’s opinion would foreclose claims against them.
The brief argues that goes further than the Supreme Court intended with its decision in Kiobel vs. Royal Dutch Petroleum Co. in 2013, which requires that claims must “touch and concern” the United States to proceed. In addition to being at odds with Kiobel, the panel decision raises fundamental questions about aiding and abetting standards as well as corporate liability under the ATS. Indeed, the petition asserts that “the panel has essentially re-written the terms of the ATS, and asks whether this entire Second Circuit “endorses the wholesale reversal of this Court’s ATS jurisprudence” dating to the landmark Filártiga v. Peña-Irala decision in 1980.
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