A civil remedy against multi-national corporations responsible for South African apartheid crimes?

9 Apr

In a recent AP report, New York Judge, Shira Scheindlin has ruled that corporations can be sued for complicit misdeeds during the South African Apartheid (Neumeister 2009).

According to the newswire, ‘IBM Corp., German automaker Daimler AG, Ford Motor Co., General Motors Corp. and Rheinmetall Group AG, Swiss parent of an armaments maker’ have all been accused of supplying, ‘military vehicles that let securities forces suppress black South Africans’ while IBM has provided ‘equipment used to track dissidents‘ (Neumeister 2009).

While the outcome is yet to be finalised, there is growing consensus among international legalists that corporations can no longer hide behind filmsy excuses.

According to the Expert Legal Panel on Corporate Complicity in International Crime  which published a report for the International Commission of Jurists in 2008 (which comes in three volumes and downloadable as three separate pdfs on the official website), corporations can be complicit under criminal or civil laws.

In the first volume (International Commission of Jurists 2008a, p. 8), it states that a company’s conduct in this aspect can be viewed from ‘three areas of inquiry’ to determine whether human rights violations have been committed. They are: ‘Causation/ Contribution’ (whether its ‘conduct enable exacerbate or facilitate the gross human rights abuses’); ‘Knowledge and Forseeability’ (whether it should have known that its conduct will lead to gross human rights abuse); and ‘proximity’ – whether it is ‘close or proximate (geographically, or in terms of the duration, frequency and/ or intensity of interactions or relationship) to the principal perpetrator of the human rights abuses or the victims?‘.

The defendants’ retort to the lawsuits (which are civil law cases) is that they are ‘encouraged’ to do so in South Africa (Neumeister 2009). This line of defense is however weak as a form of removing culpability.

While it is also true that civil laws normally do not explicitly recognise human rights violations (which may be recognised under criminal law), it does consider harm done to plaintiff as a form of justification:

… the law of civil remedies will only hold liable those actors whose conduct it considers did not meet a standard which society could legitimately have expected of them in the circumstances. As noted above, in every jurisdiction, intentional and negligent conduct that harms legally protected interests will be considered by the courts to fall short of the legitimate expectations of society, and therefore could potentially give rise to civil liability… (International Commission of Jurists 2008b, p.12).

In short, to determine whether harm was being done and whether a company can be held liable, these questions can be asked, ‘

Was harm inflicted to an interest of the victim that is protected by law?

Did the company know or would a careful and responsible company in the same circumstances have known that its conduct posed a risk of harm to the victim’s interest?

Considering this risk, did the company take the precautionary measures a responsible company would have taken in order to prevent the risk from materialising?

Finally, did the company’s conduct contribute to the infliction of the harm?’ (International Commission of Jurists 2008b, p.27)

While the decision by the judge may not amount too much, it will contribute to an increased understanding of MNCS and their responsibilities towards the communities or population in the countries that they operate in. They can no longer provide authoritarian or dictatorial regimes the technology or tools which in turn facilitates gross human rights violations without any form of international public and legalistic pressure.

In that sense, MNCs that are involved in providing products for the suppression of human rights in places such as China, Tibet, Burma or Occupied Territories should be on their toes.

– Work Cited –

Neumeister, L 2009, ‘NY judge rules in favor of 1970s apartheid victims’, Associated Press, 9 April.

International Commission of Jurists 2008a, ‘Corporate complicity & legal accountability – volume 1: facing the facts and charting a legal path’, accessed 25 February 2009.

International Commission of Jurists 2008b, ‘Corporate complicity & legal accountability – volume 3: civil remedies‘, accessed 25 February 2009.


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