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US court gives nod to apartheid claims

Paritosh Bansal

A United States appellate court on Friday allowed claims brought by victims of apartheid against dozens of major companies to go forward, saying a lower court erred in ruling it did not have jurisdiction over the matter. The plaintiffs include South Africa's non-profit Khulumani Support Group.

A United States appellate court on Friday allowed claims brought by victims of apartheid against dozens of major companies to go forward, saying a lower court erred in ruling it did not have jurisdiction over the matter.

The corporations named in the suits include oil companies such as BP and Exxon Mobil, banks such as Citigroup, Deutsche Bank and UBS, as well as other multinationals such as IBM, General Motors and Ford.

The plaintiffs include the Khulumani Support Group, a South African non-profit organisation that works with victims of apartheid and says it has 32 700 members who are survivors of apartheid violence.

The US Court of Appeals for the Second Circuit ruling vacated an order by US District Judge John Sprizzo in Manhattan that had dismissed claims brought under the Alien Tort Claims Act (Atca) by the plaintiffs, who had argued that the companies collaborated with the government of South Africa in maintaining apartheid.

“The district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for Atca jurisdiction,” the court ruled. “We hold that in this circuit, a plaintiff may plead a theory of aiding and abetting liability under the Atca.”

Two of the three judges in the appellate panel—Robert Katzmann and Peter Hall—filed separate concurring opinions. The third, Edward Korman, concurred in part but disagreed with the judgement reversing the dismissal.

Three groups of plaintiffs had filed 10 separate actions in multiple federal courts asserting apartheid-related claims against the companies, according to the 147-page ruling. The cases were all transferred to the federal court in Manhattan in December 2002.

Torture claims

The appeals court did uphold the dismissal of claims made under the Torture Victim Protection Act. A group of plaintiffs had alleged the defendants aided and abetted the apartheid regime’s use of torture and extrajudicial killing against the plaintiffs.

The South African government had asked the district court judge to dismiss the cases, saying it regarded the proceedings as interfering “with a foreign sovereign’s efforts to address matters in which it has the predominant interest”, according to the ruling.

In his dissenting opinion, Korman wrote that the majority allowed the case to go forward “over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims”.

The US State Department had told the district judge that allowing the cases to proceed “risks potentially serious adverse consequences for significant interests of the United States”, according to the ruling.

The lawyer for two of the plaintiff groups, Paul Hoffman, called the ruling significant. “We have been waiting a long time for it,” Hoffman said. “It is really a cause for rejoicing.”

The lawyer for the third group, Michael Hausfeld, called the ruling “a breakthrough and watershed in terms of international human rights”.

A lawyer for the companies could not be reached immediately for comment.

The appeals court also set aside the U.S. District Court’s order denying a motion by two of the plaintiff groups for leave to amend their complaint.—Reuters

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