APARTHEID GOES TO COURT IN AMERICA

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UNNECESSARY PROCEEDINGS | May 15th 2008

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A 200 year-old tort law intended to protect against piracy in the high seas should not be giving dictators any ideas, or fattening up attorneys' pockets, Stephen Hugh-Jones writes ...

Special to MORE INTELLIGENT LIFE

Some good news for Africa, for once. If that's what it is. Certainly it is good news for lawyers, which is not quite the same thing and not new at all. Time and American judges, who this week got a green light from the US Supreme Court, will decide.

At issue is the right of South Africans who suffered during the country's four decades of apartheid to sue corporations that knowingly aided the regime's security forces. The list of defendants, in cases that have dragged on since 2002, includes many of the grandest names of global capitalism: JP Morgan Chase, Citigroup, Barclays, Credit Suisse, UBS, Commerz, Deutsche and Dresdner banks, IBM, General Motors, Ford, DaimlerChrysler, Fujitsu, ExxonMobil, BP, Shell Oil and many more. The damages, on one blue-sky estimate, could total $400 billion.

The striking thing about that list is how many non-American names it holds. How can Commerzbank or BP be sued in the United States over events in Africa? The short answer is that both have American subsidiaries. The longer, still more striking answer is the Alien Tort Claims Act, whose origins go back to 1789. It gives US courts jurisdiction in cases brought by foreigners over torts committed "in violation of the law of nations" worldwide.

The target two centuries ago was piracy. The first modern test came in the 1980s, over a Paraguayan tortured to death by Paraguayan police in Paraguay. Relatives sued--in the United States. More recently, Arab Bank was sued for allegedly supporting Hamas. The South African case was at first thrown out by a US district court, which declined to rule on it. On appeal, the court was told last October to think again.

The case went up to the Supreme Court this week. It consolidated ten lawsuits filed in the name of everyone who lived in racist South Africa from 1948 to 1994. But four of the nine justices ruled themselves out, citing conflicts of interest, leaving the court without a quorum. This reaffirmed the lower court ruling by default.

So back the case goes to the district court. Human-rights activists are delighted. Both governments concerned wish the whole thing would go away. Thabo Mbeki, South Africa's president, thinks his country's sovereignty is being infringed; the Bush Administration sees yet another darkening of the United States' image as a place to do business in. Both are right.

There are two broader objections. One is that the law Congress crafted in 1789 any nasty dictatorship may feel empowered to create in the future. The closest parallel to the wide-sweeping American law is the British one of 1807, which granted the Royal Navy the right to stop slave ships of any country, sailing anywhere--a trade that in most cases was entirely legal at both ends. Slavery was an abominable evil, just as was apartheid. But a dictator's aims may not be so benign, nor confined to trade.

The other issue is wider still. Who defines evil, and just where does passive responsibility for enabling it stop? Selling cigarettes is plainly not the same as supplying Zyklon-B to Auschwitz. But suppose the cigarettes are going to children? Or you are simply refuelling the truck that carries food for the guards at Auschwitz? The grey area is huge. And how far back in history are we to go? Are the cities of Bristol or Atlanta to be sued for being built on the profits of slave-grown sugar or cotton?

I take a robust and politically incorrect view of such things. I regret the misdeeds of my ancestors, but I see no reason to apologise--let alone pay--for them. And I can't help wondering what really lies behind the case that the Supreme Court fudged this week. Was it about apartheid? Or was it about tort lawyers finding a new multinational milch cow?

(Stephen Hugh-Jones is a former writer and editor for The Economist, where he wrote the Johnson column from 1992-99. He lives now in West Sussex.)

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Comments

But isn't the broader issue

May 16, 2008 - 11:43 — Jakob von Baeyer (not verified)

But isn't the broader issue (and legal precedent) here holding multi-nationals accountable for un-ethical profiteering rather than expressly atoning for the 'misdeeds of our ancestors'?

How companies (and not only

May 18, 2008 - 18:18 — NS Phillips (not verified)

How companies (and not only multinational ones) are to be held to account for their actions is for sure one issue. And it is one of growing importance, now that the United States is increasingly inclined to claim extra-territorial jurisdiction for US law over the activities of non-US bodies and outside the United States. Whether that is the best solution, or even one that the rest of the world should be expected to tolerate, is certainly an issue for debate.

But it is not the only issue. Just as significant surely is the one that writer Hugh-Jones raised--just what is ethical and what is not? How near the "crime" do you have to be to be condemned as partly responsible for it. Are you guilty if you sell rifles to a brutal dictatorship? Army boots? Cloth that was ultimately used to make uniforms but might just as well have been used by civilians? Chewing-gum? Countless non-German companies traded with Nazi Germany long after its nastiness was plain to see. Were they all guilty? If not, which ones were and which not? What about their suppliers? Or their suppliers' suppliers?

And what standards are we to apply? Many unethical activities are perfectly lawful. Even more were perfectly lawful in the past, though they may not be now. Many were not even thought unethical. Should we apply today's legal or ethical standards to condemn companies (or people) for their involvement in long-past events? This was the context in which the writer mentioned the misdeeds of his ancestors. It's a different debate, but not an unimportant one.

where do you draw the line at evil?

May 18, 2008 - 23:12 — DRM (not verified)

A tough question, one befuddling philosophers for generations, and one for which legal analysis is poorly suited, save, alas, for the fact that we have few other tools available with which to draw such lines at all.

America's torts law apply against violations of the law of nations - what certain nasties were executed for post-Nuremberg. Evil, like obscenity, remains grossly defined , bearing "I know it when I see it" brush strokes,; however, where the effort invested in defining and resisting obscenity yields little benefit, the same efforts invested against evil define civilization.

Of course what these are

May 19, 2008 - 10:26 — Jakob von Baeyer (not verified)

Of course what these are difficult questions. I understand that clearly NS. The point I was making was that developing a legal precedent to hold active companies accountable (and there is no lack of examples in the world today) is more important than wrestling with the ethical dilemmas of the past. I'm sure we can all acknowledge that there are no clear answers where ethics are concerned, but a process and forum for this kind of crime is needed - and it will take time and testing to get right. I would support the ICC taking this kind of thing on more robustly, but obviously Washington has other ideas.