September 28, 2020

Susan Farbstein Publishes Article about Apartheid Litigation in Harvard International Law Journal


The most recent print edition of the Harvard International Law Journal, published today, features an article by Susan Farbstein, International Human Rights Clinic Co-Director and Clinical Professor at Harvard Law School, about the long-running Apartheid suit.  Entitled “Perspectives from a Practitioner: Lessons Learned From The Apartheid Litigation,” the piece draws on her work as co-counsel in the Alien Tort Statute case that sought to hold corporations accountable for their role facilitating human rights abuse in apartheid South Africa.

“The article really represents my attempt, as a human rights practitioner, to analyze the experience of litigating the Apartheid suit,” Farbstein explains.  “While lawsuits alone can’t fundamentally improve human rights, the article contends that litigation can be a powerful option for individuals or communities that have survived human rights abuse, and that it played an important role for many stakeholders involved in this particular case.  I try to honestly consider the challenges that we faced over the years, and acknowledge the ways that we fell short of our ambitions.  But I also suggest that critiques of human rights litigation often miss the mark because they demand too much of litigation—which is, of course, just one of the many tools available to the human rights movement—and because the critiques fail to understand the multiple goals of this kind of effort.” 

As she writes in the introduction to the article, when reflecting on some of the case’s successes: 

“[T]hrough the process of researching and formulating the complaints, we were able to uncover new facts and expose historical truths about apartheid-era human rights abuse, particularly the role of corporate actors. Through the adoption of a community lawyering approach, the plaintiffs and the legal team worked collaboratively so that decision-making around the case—who would be a part of it, which claims and arguments would be advanced, how and whether the case would proceed—could be more collectively owned. Through the joint efforts of both the plaintiffs and the legal team, we succeeded in reshaping public perceptions about the case, making clear that it was not an attempted end-run around South Africa’s truth and reconciliation process, but rather a legitimate effort of survivors seeking remedies for past harms. Over time, the case demonstrated how the language of reconciliation and transitional justice should not be used to force closure about the past or to blunt a lingering need for truth and accountability, especially when the past is still present and some wounds remain open. Through bold efforts to hold companies accountable for human rights abuse, this case, in tandem with others, formed the scaffolding upon which a larger corporate social responsibility movement could be built and grown. Along with other corporate Alien Tort Statute cases, this litigation inspired similar efforts in multiple jurisdictions outside the United States, led to the proliferation of regulatory initiatives at the international, regional, and industry levels, and influenced multinationals to take greater care to respect human rights, including by introducing or revising their policies and practices in response to the potential threat of liability. Finally, through the clinical teaching model, the case provided an opportunity to train members of the next generation of human rights practitioners, both in South Africa and the United States. These advocates now concretely understand the limitations, risks, and complexities of strategic human rights litigation and will be better prepared to engage with affected communities and weigh the merits of different approaches to seeking justice and accountability.”

Farbstein also notes that the article is, in many ways, intended as a tribute to the people behind the case.  For this reason, she has interspersed narrative snapshots of some of the named plaintiffs throughout the article to highlight their stories.   

“The Apartheid suit was first and foremost about people—about what they had endured and survived, and about their struggle for justice,” Farbstein says. “We always imagined that through the litigation, their stories would contribute to the shared memory of the apartheid era and help shape the historical record.  I hope this article can move us a step closer to realizing those aspirations.” 

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