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September 28, 2020
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.”Continue Reading…
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 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.
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