Blog: Susan Farbstein

June 3, 2016

Clinic Files Reply Brief in Petition for Certiorari in Apartheid Litigation

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…

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February 17, 2016

Update: Long-Awaited Progress on Apartheid-Era Prosecution

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.

November 10, 2015

Remembering Ken Saro-Wiwa: The Struggle Continues in the Niger Delta

Posted by Susan Farbstein

Ken2

Ken Saro-Wiwa, one of nine environmental activists from Ogoniland in the Niger Delta who were executed after a grossly unfair trial on 10 November 1995. © Amnesty International/Karen de Groot

Twenty years ago today, Ken Saro-Wiwa and the other members of the Ogoni Nine were hanged in Port Haurcourt, Nigeria. Saro-Wiwa was a writer, environmental activist, and outspoken critic of Shell’s destruction of Ogoniland. He accused Shell of waging an ecological war against the Ogoni, co-founding the Movement for the Survival of the Ogoni People (MOSOP) to protect their rights and protest the devastating effects of Shell’s oil exploitation on their land.

In response, Nigeria’s military junta falsely accused him of murder and then created a special tribunal — which violated international due process standards — to prosecute and sentence him to death. In 2009, Shell agreed to pay $15.5 million to settle a case in which it was accused of ­collaborating with the Nigerian government in Saro-Wiwa’s execution.

On this anniversary, it would be nice to document how much has changed in the Niger Delta over the last two decades — how pollution from oil extraction has been reduced, how Shell has cleaned up past spills, how the Ogoni no longer suffer from poisoned waterways, fishing areas, and surface soil. Unfortunately that article can’t be written, because the devastation continues.

Although Shell was forced out of Ogoniland in 1993, it remains responsible for leakages, gas flaring, and oil blow-outs from approximately 5,000 kilometers of its pipelines that still run through the area. Hundreds of spills occur annually across this old and poorly maintained pipeline network, ruining drinking wells, agricultural fields, forests, and fisheries that the Ogoni depend on for their food and their livelihood. Shell acknowledges spills leading to more than 55 million liters of oil leaked in the Delta in recent years — and these numbers likely understate the true scale of the damage. (By comparison, on average there were 10 spills annually across the whole of Europe from 1971 to 2011; the infamous 1989 Exxon Valdez spill in Alaska accounted for approximately 41 million liters lost.)

Land contaminated with oil around Shell’s Bomu Manifold site, near K. Dere village in the Niger Delta. © Amnesty International

Land contaminated with oil around Shell’s Bomu Manifold site, near K. Dere village in the Niger Delta. © Amnesty International

The most comprehensive study on the impact of oil pollution in Niger Delta, produced by the United Nations Environment Programme (UNEP) in 2011, documented appalling levels of ongoing contamination. The UNEP also found that Shell had failed to properly clean up spills at more than 60 locations across Ogoniland. In response, Shell assured its critics that, since 2011, it has addressed the pollution identified in the UNEP report.

But a recent study by Amnesty International (AI) and the Centre for the Environment, Human Rights and Development (CEHRD) flatly contradicts Shell’s claims. In locations where Shell asserts it has cleaned up and remediated past spills — and where Nigerian government regulators have certified sites as clean — AI and CEHRD found water-logged areas with an oily sheen, land that was black and oil-encrusted, and soil that was soaked and visibly contaminated with crude. They conclude that Shell has not improved its methodology for addressing oil spills and still fails to adequately clean up its pollution.

To truly commemorate Saro-Wiwa, the struggle for social and environmental justice and a clean Niger Delta must continue. Nigerian President Muhammadu Buhari’s recent pledge to fast-track implementation of the UNEP’s recommendations is commendable but insufficient. Shell must improve its approach to oil spill remediation, properly clean up the Delta, and compensate communities for past harms. And the Nigerian government must create an effective oversight, regulation, and accountability process for the oil industry, one that addresses the underlying causes of pollution in the Delta, including the maintenance of oil infrastructure and a re-examination of the spill investigation process.

Shell’s unapologetic attitude and unchanged behavior are an insult to human rights and all that Ken Saro-Wiwa represents. The Nigerian state and Shell might have hoped that killing Saro-Wiwa and his colleagues would end the struggle. We owe it to him to prove them wrong.

Susan and a team of clinical students participated in litigating Wiwa v. Shell, which charged Shell with complicity in the killing of Ken Saro-Wiwa and other non-violent Nigerian activists, and successfully settled in 2009.

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August 19, 2015

Apartheid Plaintiffs Ask Second Circuit to Reconsider Claims Against IBM and Ford

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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August 17, 2015

Susan Farbstein Named to “Top Women of Law” List by Massachusetts Lawyers Weekly

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.

Susan, left of the child in pink, with students and their families in rural South Africa. With Katie King, JD ’16, and Dmitri Holtzman, Exec Director, Equal Education Law Centre.

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.

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August 10, 2015

New Revelations of Political Interference in Prosecution of Apartheid-Era Crimes

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.

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July 30, 2015

Second Circuit Decision in Apartheid Appeal Denies Plaintiffs the Opportunity to Proceed with Their Claims

Posted by Susan Farbstein and Tyler Giannini

Earlier this week, the Second Circuit handed down its opinion in In re South African Apartheid Litigation, denying Plaintiffs an opportunity to proceed with their claims against the remaining Defendants Ford and IBM. In doing so, the appellate court affirmed the District Court’s prior decision on the grounds that Plaintiffs’ proposed amended complaints had not alleged sufficient plausible new facts to move forward.

While the outcome was disappointing, so too was the opinion of the Court itself, which failed to fully engage with new, specific, and detailed allegations in the proposed amended complaints — in particular, allegations about how both defendants, in the United States, took purposeful and repeated actions to aid and abet the South African state to commit international law violations. With respect to the allegations against Ford, the Court glanced over important facts about the U.S. parent corporation’s direct involvement in the design and approval of the sale of specialized vehicles to South African security forces, in contravention of international sanctions regimes. Instead, the Court concluded broadly that the allegations were insufficient to link Ford in the United States to the violations in South Africa.

With respect to the allegations against IBM, the Court did find sufficient U.S. domestic conduct by the parent — specifically, that it designed particular technologies that facilitated the denationalization of black South Africans. But while this conduct did “touch and concern” the United States, the standard set by the Supreme Court in Kiobel v. Royal Dutch Petroleum, the Court held that the allegations did not plausibly allege that IBM’s conduct was “purposeful.” Because purpose (rather than knowledge) is the required standard for an aiding and abetting claim in the Second Circuit under Presbyterian Church of Sudan v. Talisman, the Court determined that Plaintiffs’ claims could not proceed.

The Plaintiffs will now seek en banc review of the panel’s decision, requesting that all active judges on the Court rehear the case because it presents questions of exceptional importance and conflicts with prior decisions of the Second Circuit as well as the U.S. Supreme Court.

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March 26, 2015

Tomorrow, March 26: “International Criminal Courts and Tribunals: Challenges and Successes”

We’re very pleased to co-sponsor this year’s Harvard Human Rights Journal Symposium, which takes place tomorrow, Friday, March 27. The half-day event will focus on the challenges and successes of international criminal law as a response mechanism to world crises. The event panels are as follows:

“Where Has International Criminal Law Taken Us and Where Can it Go?”

Keynote Address by Serge Brammertz, Chief Prosecutor of the ICTY

12:00 – 1:00 pm, Ames Courtroom, Austin Hall
Lunch will be served

“The Laws of War: Enforcement in Human Rights Versus International Criminal Courts”
1:30 – 3:00 pm, WCC 1015

This panel will feature Judge Robert Spano of the European Court of Human Rights (graciously brought to the Symposium by Harvard European Law Association), Nema Milaninia of the ICTY in the Appeals Division of the Office of the Prosecutor, Fergal Gaynor of the International Criminal Court Victims Division, former ICC prosecutor Professor Alex Whiting, and Vanderbilt University Professor Michael Newton. The panel will discuss the pros and cons of enforcing international humanitarian law in international criminal courts versus international human rights courts. This panel is cosponsored by the Harvard European Law Association.

Coffee with the Experts
3:00 – 4:00 pm, WCC 3038

“Prosecuting a War: Justice for Syria?”
4:00 – 5:30 pm, WCC 1023

Syria triggers critical questions for the role of international criminal law. What system of justice will best address the atrocities that have been committed and documented by various actors throughout the conflict? National courts? An international tribunal? A hybrid model? What role should local forms of justice play in such a process? How can the lessons of past justice models inform the international community’s approach to Syria? What role should the US or other Western powers play? The panel will feature Emily Hutchinson and Jim Hooper of the Public International Law and Policy Group, and Federica D’Alessandra from the Harvard Kennedy School. All three panelists have been involved in Syria fact-finding missions, and Ms. Hutchinson and Mr. Cooper have participated in negotiations with key members of the moderate coalition. Susan Farbstein from the Harvard Human Rights Program will moderate the panel.

Wine and Cheese Reception
WCC 1023, HLS Pub

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March 10, 2015

Plaintiffs’ Victory Against Former Somali Prime Minister Allowed to Stand

Posted by Tyler Giannini and Susan Farbstein

After 11 long years of litigation, plaintiffs from Somalia learned yesterday that their $21 million judgment for damages for torture and war crimes would stand. The U.S. Supreme Court declined to take the appeal of the defendant, General Mohamed Ali Samantar, a former Somali Prime Minister and Minister of Defense who was implicated in the abuses. Samantar, who now lives in Virginia, can make no additional appeals.

Beyond the victory for the plaintiffs, counsel from the Center for Justice & Accountability noted this ruling is critically important because it preserves a Fourth Circuit Court of Appeals decision that found egregious rights violations cannot be considered “official acts” shielded by sovereign immunity.

The ruling comes amidst ongoing debate about how the United States should treat high-ranking former foreign government officials who are accused of human rights abuses and are now living in the United States. The International Human Rights Clinic and its partners have been involved since 2007 in one such case, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, which brings Alien Tort Statute claims against the former President and the former Defense Minister of Bolivia for their role in extrajudicial killings in 2003. Last Friday, the Mamani plaintiffs filed a brief with the Eleventh Circuit opposing the defendants’ appeal, which is considering the issues of exhaustion of remedies and command responsibility.

Like Samantar, the defendants in Mamani came to the United States after leaving power, and have remained in the country ever since.

January 29, 2015

Clinic Files Opening Brief in Apartheid Litigation Appeal

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.