Blog: South Africa
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.
August 17, 2015
Posted by Cara Solomon
We have some pretty fantastic news to report today: Susan Farbstein has been named to Massachusetts Lawyers Weekly’s “Top Women of Law” list for 2015.
It’s no surprise to us, given the criteria for making the list. The honor goes to “women who have made tremendous professional strides and demonstrated great accomplishments in the legal field, which includes: pro bono, social justice, advocacy, and business. The awards highlight women who are pioneers, educators, trailblazers, and role models.”
We are thrilled to see Susan honored in this way, and look forward to celebrating with her at the official ceremony in October.
August 10, 2015
Posted by Susan Farbstein
Back in 2009, when our Clinic published a book about the prosecution of apartheid-era crimes in South Africa, we knew that state prosecutors had brought shockingly few charges since the Truth and Reconciliation Commission (TRC) concluded its work—but we didn’t know why. Now, thanks to a recently-filed case in the Pretoria High Court, we’re starting to get an answer. And it isn’t pretty. The new case alleges that South Africa’s ruling ANC government sought to protect apartheid-era security forces from prosecution, in order to protect itself.
The case was filed by the family of Nokuthula Simelane, who was 23 years old in 1983 when, while acting as a courier for the armed wing of the ANC, she was abducted, tortured, and disappeared by the Security Branch of the former South African Police. Her remains were never found. Although the TRC granted amnesty to some of the perpetrators in Simelane’s case in 2001, it also recommended that the National Prosecuting Authority (NPA) investigate further with an eye towards prosecuting those not granted amnesty. No such investigation or prosecution occurred.
The lack of progress in Simelane’s case is representative of numerous others. Under the terms of the TRC, any perpetrator who did not apply for and receive amnesty could be prosecuted. In its final report, the TRC recommended that the state pursue a bold prosecution policy, and in 2003 referred approximately 300 cases to the NPA for investigation and potential prosecution (as well as an additional 500 missing persons cases). The prosecutions never materialized.
New court filings now allege that the South African state “put in place measures to manipulate, control or obstruct prosecutorial decisions dealing with political cases of the past.” In particular, supporting affidavits—from extremely important public figures including the former director of the NPA and the head of its Priority Crimes Litigation Unit (PCLU)—provide detailed accounts of high-level interference by ministers and senior government officials to block post-TRC prosecutions.
It appears that those efforts were grounded in fears that cases against security forces perpetrators would open the door to charges against ANC leaders and members as well. The result, as explained by Anton Ackermann, the former head of the PCLU, was that the NPA was “effectively stopped from pursuing the investigation and prosecution of the so-called political cases arising from South Africa’s past.”
On the day in 2004 when three policeman were to be arrested for the attempted murder of Frank Chikane, the former head of the South African Council of Churches, Ackermann received a call from an official in the Ministry of Justice stating that “a decision had been taken that the Chikane matter should be put on hold pending the development of guidelines to deal with the TRC cases.” After Ackermann responded that only Vusi Pikoli, the NPA’s director, could give such an instruction, he was told by Pikoli not to proceed. Ackermann concludes “that it can safely be assumed that [Pikoli] was instructed at a political level to suspend these cases.” Investigations and prosecutions of TRC cases were placed on hold until new guidelines could be formulated.
Once new guidelines regarding TRC cases were put into place at the end of 2005—guidelines authorizing use of the same amnesty criteria applied by the TRC while granting prosecutors wide latitude to decline to prosecute even when adequate evidence existed, and which were eventually struck down as unconstitutional—Ackermann again sought to proceed with cases previously identified for prosecution. He was prevented from doing so by a lack of investigative capacity and the unwillingness of an inter-departmental committee to meet and move the cases ahead. He was later relieved of his duties in relation to the TRC cases. Ackermann states, in his affidavit, that a political instruction came from above to remove him from these cases to thwart prosecutions. “It is no coincidence,” he asserts, “that there has not been a single further prosecution since I was relieved of my duties in this regard.”
Pikoli’s affidavit confirms that political interference effectively barred the investigation and prosecution of TRC cases, and characterizes the Chikane case as the “unraveling” of the NPA’s efforts. Pikoli describes a meeting called by the Acting Minister of Justice and Constitutional Development, and attended by multiple other ministers, at which “it became clear that there was a fear that cases like the Chikane matter could open up the door to prosecutions of ANC members.” He also details how “powerful elements within government structures were determined to impose their will on my prosecutorial decisions.” Like Ackermann, Pikoli was suspended from his duties as director of the NPA and believes that the decision to pursue prosecutions of apartheid-era perpetrators contributed to his suspension and eventual dismissal.
Other affidavits speak to the impact of the absence of prosecutions on South African society and the TRC’s legacy. Alex Boraine, the Vice Chair of the TRC, states that political inference with the NPA’s mandate and the resulting abandonment of TRC cases has seriously eroded the human rights culture established by South Africa’s constitution, violated the rights of apartheid-era victims to a remedy, and allowed perpetrators to escape justice. Dumisa Ntsebeza, the head of the TRC’s Investigation Unit, asserts that the failure to prosecute those who never applied for amnesty undermined those who did, and that a tardy justice in the form of limited reparations to survivors has compromised the dignity that the TRC sought to build.
Together, the affidavits offer compelling evidence of political interference by the government into the work of the NPA, which effectively blocked the investigation of cases recommended for prosecution by the TRC. Now that the truth has come out, it’s time for the NPA to get back to work, without additional political meddling. Justice, delayed far too long, must no longer be denied.
June 4, 2015
Posted by Susan Farbstein and Tyler Giannini
Yesterday, the Clinic and our partners filed a reply brief in In re South African Apartheid Litigation, currently on appeal before the Second Circuit. The case, which is being litigated under the Alien Tort Statute, brings claims against Ford and IBM for the assistance and support they provided to the apartheid government and security forces to commit human rights violations against black South Africans.
At issue in the appeal is whether the Plaintiffs will be allowed to file their proposed amended complaints so that the case can proceed. In order to do so, the claims must “touch and concern” the territory of the United States with sufficient force, as mandated by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co.
Plaintiffs argue that they meet this standard because the proposed amended complaints contain detailed and specific allegations of the ways in which both Defendants, in the United States, took actions to aid and abet the South African government and security forces. For example, the complaints allege that, in the United States, IBM developed hardware and software systems used to produce identity documents that stripped black South Africans of their citizenship and that Ford, in the United States, made decisions not only to sell but also to specialize vehicles used by the South African security forces to oppress and control the black population.
Oral argument before the Second Circuit will be heard on June 24, and a decision is expected later this year.
March 31, 2015
Posted by David Victorson, JD '16
A few weeks ago the Harvard Human Rights Program tweeted about the fact that many students in rural South Africa have to walk more than 20km each day to get to and from school. They cross rugged mountains and flooded rivers. They navigate dangerous highways and treacherous weather. They face physical injury and emotional harm.
Surprisingly, shortly after we posted our tweet, a small number of Twitter users pushed back. One accused us of ignoring how lucky these students are to even be at school, implying that the difficulties of getting there are inconsequential. Another responded that if “it doesn’t kill you it makes you strong.” But as those paying attention to news reports over the past month know, a poor learner transport system has, in fact, already led to the death and injury of multiple children this year. And on our recent trip to Nqutu, KwaZulu-Natal, it didn’t take long to find students who have personal experience with the risks of robbery, rape, kidnapping, and even the death of friends – all created by the long journey to school.
How can this be inconsequential? How does this make anybody stronger?
Faced with such a difficult journey to school, many affected students drop out before completing Grade 12. During our trip, we heard from those who have continued attending school that they arrive exhausted, hungry, and have difficulty focusing in class. When they get home late at night, they may have responsibilities such as caring for livestock, fetching water, and helping to bathe siblings, nieces, and nephews before they can study. Some students go to bed at 11:00 pm, only to rise at 4:00 am and start their journey again.
Because of the many hours lost traveling to and from school, these students are forced to fit a full 24-hour day into something much less. Many struggle to do so by sacrificing homework and sleep, which has long-term consequences on their ability to stay healthy, to concentrate and to learn, and ultimately, to reach their full potential as adults.
Meanwhile, South Africa’s unemployment rate currently hovers around 25%. Among the youth labor force, this numbers jumps to over 33%. Nearly one-third of those aged 15 to 24 are not in employment, education, or training. They are detached from the labor force with seemingly no way to better their situation.
The consequences for South African society stretch far beyond these unemployed individuals. Continue Reading…
March 23, 2015
Posted by Katie King, JD '16
I’ve always loved school. Starting from a young age, I even loved the journey to get there. It was time spent with my siblings—an opportunity to tease each other and a chance to get a taste of what felt like the grown-up responsibility of walking alone.
The students in Nqutu, a small, rural area in eastern South Africa, are often just as excited as I was about school. However, as I heard during a trip there this past January with the International Human Rights Clinic, the morning starts for many of them at 4 or 5 a.m., when they wake to fetch water, let out their family’s cows, and help their younger siblings get ready. They then set off on a walk that often exceeds 10 miles.
They tease each other and gossip as I once did, doing their best to protect their uniforms and textbooks from the dirt and weather. But, as the students told us, by the time they arrive at school two hours later, their energy has worn off—and they are fully aware, as they do their best to pay attention in class, that they will have to repeat the journey all over again at the end of the day.
Factor in the additional risks of robbery, rape, snakebites, and treacherous river crossings, and it’s difficult for me to imagine that my five-year-old self would ever have been able to make it to school, let alone focus in class or have the time and energy to complete my homework, in similar conditions. I arrived well-rested and ready to learn. Can the same be said of Nqutu’s students?
Since 2009, the South African government has dragged its heels on finalizing a national scholar transport policy that would address the education system’s many transport-related problems. This is no small matter. As a result of this failure to act, the government is not fulfilling a fundamental right in South Africa’s constitution: the right to a basic education.
Our partners, Equal Education and Equal Education Law Centre, have been campaigning for a range of improvements in the educational system, taking on everything from schools without water and electricity to access to textbooks. In 2014, their student-powered movement shifted its focus to another critical piece of the puzzle: safe, affordable, and reliable school transport.
Not only has the national government failed to fix the problems it itself acknowledged in the draft national scholar transport policy, but the KwaZulu-Natal government has ignored the legal responsibilities it previously set for itself. Provincial policy requires KwaZulu-Natal to provide transportation subsidies to learners who walk more than 3 kilometers to school—a distance easily exceeded by dozens of students we talked to in our short time in Nqutu. None of the students we spoke with were receiving this assistance.
Principals told us they had submitted applications to the provincial government and never heard anything back. Determined to make sure children receive an education, some adults who live closer to school have opened their homes to students from more remote villages. Others drive trucks with more than 20 students packed into the back.
These stop-gap solutions are unsustainable; the government has the responsibility to act. Without a safe, reliable way to get to school, students’ ability to learn is compromised, and education’s promise of a better, more equitable future goes unfulfilled.
The solution may have to be multi-faceted. As we learned on our visit, though many of the difficulties students face are common, there are also different obstacles from school to school; one school may simply need a bus, while another may have learners who are so dispersed that school boarding facilities are the best response. Still, such complexities are not sufficient reason for continuing to stall—especially not when South Africa’s students, in the face of so many challenges, continue to embark upon their long walk to education every day.
Katie King, JD ’16, has been working with the International Human Rights Clinic since last September on issues related to the right to education in South Africa. She spent her 1L summer interning at Equal Education Law Centre in Cape Town.
January 29, 2015
Posted by Tyler Giannini and Susan Farbstein
The Clinic and our partners filed an opening brief yesterday in the Second Circuit in an appeal in In re South African Apartheid Litigation. The case, which is being litigated under the Alien Tort Statute, seeks relief against IBM and Ford for assisting and supporting human rights violations committed in apartheid South Africa.
Back in August, the district court dismissed the case when the court denied Plaintiffs’ motion for leave to file an amended complaint against these two U.S. Defendants. The lower court reasoned that the claims did not sufficiently “touch and concern” the territory of the United States, as required by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which established a presumption against extraterritoriality in ATS cases.
On appeal, Plaintiffs contend that the lower court failed to undertake the necessary inquiry into the U.S. Defendants’ own conduct in the United States, and instead focused only on actions that took place in South Africa. The proposed amended complaint contains detailed new allegations about how, from the United States, both Defendant corporations aided and abetted the South African security forces and government to commit human rights violations over several decades. Defendants will file their opposition brief in the coming months.
Clinical students Ariel Nelson, J.D. ’15, Brian Klosterboer, J.D. ’16, and Peter Stavros, J.D. ’16, contributed research and drafting for the brief.
October 24, 2014
Posted by Elizabeth Loftus, JD '16
In the coming month, all across South Africa, over half a million students will be sitting down to take the National Senior Certificate exam. Some will be sitting at individual desks in state-of-the-art classrooms. But others will be sitting on cinder blocks and at shared desks in buildings that lack water, electricity, and toilets. Wherever they are, students will be taking the same high-stakes test, one that will determine their future. Students who pass will graduate from high school and gain access to higher education opportunities. Students who fail will not.
The exam has a broader purpose, as well: the South African government uses pass rates to identify public schools that lag behind national performance standards. Institutions at which less than 60% of students pass the exam are designated “underperforming.” Underperformance trends in the South African school system reveal startling inequalities and show that the Department of Basic Education’s own underperformance in addressing this critical issue is inexcusable.
Following last year’s exam, 1,407 schools across South Africa qualified as underperforming. The poorest performing provinces were the Eastern Cape and Limpopo, which had pass rates 15%-20% lower than those in the majority of other provinces. Nearly half of the schools in the Eastern Cape failed to meet national performance standards. Shortcomings such as poor infrastructure, inadequate materials, overcrowding, and negligent management all suppress success in vulnerable schools. Not coincidentally, underperformance in the education system disproportionately affects learners in the poor, rural, historically black areas of the country.
Indeed, many of today’s challenges troublingly echo conditions of twenty-five years ago, when the legal framework for education existed to perpetuate racially separate and unequal education. Under the apartheid education system, black schools were designed to underperform in comparison to their white counterparts in order to keep black South Africans undereducated and capable of performing only unskilled, low-wage jobs. The measurable effects of this policy were severe: the government spent 10 times more on white schools than it did on black schools; while there were 18 white students per teacher, the ratio in black schools was 39 to 1; the standardized exam passage rate for blacks was less than one-half that of whites. It is shocking how little these figures have changed since the end of apartheid. In a visit to the Eastern Cape in 2013, community-based education NGOs found primary school classrooms with over 50 students and secondary school classes with over 100 students. Some schools have no electricity and lack desks, chairs, textbooks, and library facilities.
The persistent, systemic deficiency in school performance requires a coherent, national policy solution. But, rather than designing a coordinated response, the Department of Basic Education (DBE) has largely overlooked underperformance as a problem in and of itself. National guidelines on improving school performance do not exist. At a more basic level, it is unclear that the DBE even fully appreciates the gravity of underperformance since it has failed to comply with monitoring, evaluation and remediation requirements outlined in the governing national legislation, the South African Schools Act (SASA). A recent example of the DBE’s inadequate approach is evident in the comparison of its 2013-2014 yearly action plan with its 2013-2014 year-end review. “Underperforming schools” appeared only twice in the action plan. The year-end review made only general references to underperforming schools, showing little follow-up on the action plan and providing almost no guidance for reform.
Luckily, groups like Equal Education (EE) and Equal Education Law Center (EELC) have turned their attention to the cause and have committed their considerable social resources to drawing others’ attention, as well. In a far-reaching approach, EE and EELC have undertaken a variety of advocacy strategies in Parliament, the court system, communities, and schools. EE has organized policymaker visits to underperforming schools. In 2012, in response to students’ call for help, EE launched litigation to compel authorities to address the dire learning conditions at Moshesh Senior Secondary School in the Eastern Cape. Recently, EE and EELC produced a shadow report for the parliamentary oversight committee on education, pushing the government to hold the DBE accountable for its shortcomings. All of these steps are important in forcing the DBE to acknowledge the problem and meet its obligations, such as those enumerated in the SASA. Only by living up to its own standards can the DBE help schools live up to theirs.
Elizabeth Loftus, JD ‘16, is a student in the International Human Rights Clinic currently working on education-related issues in South Africa, in partnership with EELC. She has previously worked on projects related to South Africa as a member of the Harvard Law and International Development Society.
September 11, 2014
September 12, 2014
“Albie Sachs and the New South Africa”
A film screening and discussion with Justice Sachs
3:00- 5:30 p.m.
Austin Hall North
Please join us for a screening of the documentary “Soft Vengeance: Albie Sachs and the New South Africa,” followed by a discussion with Justice Sachs, the legendary judge at the Constitutional Court of South Africa, as well as the filmmaker, Abby Ginzberg. Albie Sachs served for 15 years as a Justice of the Constitutional Court of South Africa and has played a prominent role in the country’s struggle for justice. An anti-apartheid activist, Justice
Sachs was exiled for 23 years and survived an assassination attempt. He is the recipient of the inaugural Tang Prize for Rule of Law.
This event is being organized by HLS International Legal Studies and co-sponsored by the Human Rights Program