Khulumani et al. v. Barclays National Bank et al., and Lungisile Ntsbeza et al v. Daimler AG et al.

Court	United States Court of Appeals for the Second Circuit, United States
Case number	05-2141-cv, 05-2326-cv.
Decision title	Opinion
Decision date	12 October 2007
Parties	Khulumani, and others Barclay National Bank Ltd., and others Lungisile Ntsebeza, and others Daimler Chrysler Corporation, and others
Categories	Genocide, Human rights violations, Torture, War crimes
Keywords	forced labour, genocide, jurisdiction, torture, war crimes, aiding and abetting, apartheid, corporate liability, extrajudicial killing, racial discrimination, sexual assault, unlawful detention
Links	Opinion

Summary

Who can be held responsible in a Court of law for human rights violations? In this case, victims and relatives of victims of the South African apartheid regime sued several corporations for their involvement in South Africa in the period between 1948 and 1994. They were liable, the plaintiffs reasoned, because the police shot demonstrators “from cars driven by Daimler-Benz engines”, “the regime tracked the whereabouts of African individuals on IBM computers”, “the military kept its machines in working order with oil supplied by Shell”, and so forth. Whereas the District Court in first instance had granted the corporations’ motion to dismiss the case, the Court of Appeals ruled that the case could proceed. The District Court had ruled that aiding and abetting violations of customary international law could not provide a basis for jurisdiction. The majority of the panel disagreed, though for different reasons: one judge relied on international law to substantiate this, another solely relied on national law. A third judge dissented, arguing that this case should not be allowed to proceed, among other things because of fierce opposition from both South Africa and the US.

Procedural history

Three groups of plaintiffs filed actions against several multinational corporations that did business in apartheid South Africa. The actions were consolidated and transferred to the District Court of New York. The three groups of plaintiffs (the Ntsebeza, Digwamaje and Khulumani) argued that the defendants had violated international law by doing business in South Africa during the era of Apartheid and by providing the government with resources.

Therefore, they argued, defendants could be subjected to a suit under the Alien Tort Claims Act (ATCA, 28 U.S.C., para. 1350) and other jurisdictional provisions. They sought equitable relief (including production of defendants’ documents and creation of an international historical commission), injunctive relief to prevent defendants from destroying documents and monetary relief.

In July 2003, a majority of defendants appealed to dismiss the actions for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Government of South Africa declared that the suit was interfering with matters in its sovereign interests, although they later decided to support the plaintiffs. The US also objected against the continuation of the case. The District Court granted the motion to dismiss on 29 November 2004.

Related developments

This judgment was affirmed by the Supreme Court on 12 May 2008, on the grounds that it lacked quorum, due to the recusal of four judges with financial interests in some of the defendant companies. On 9 April 2009, the US District Court for the Southern District of New York dismissed the claims against certain companies against whom the plaintiffs sought direct liability for the tort of apartheid, on the basis that international law has yet to definitively establish such liability for non-state actors. Claims against IBM, Daimler, Ford, General Motors and Rheinmetall Group were allowed to proceed. The case has been pending before the Second Circuit Court of Appeals since January 2010, awaiting the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.. The latter case was decided on by the Supreme Court on 17 April 2013. The Supreme Court ruled that the Nigerian plaintiffs who had claimed that the Royal Dutch Petroleum Company had been complicit in violating their human rights, may not continue their litigation in US Courts using the ATCA. The impact of this ruling on the Apartheid Litigation case is unclear. A settlement between General Motors and victims of Apartheid was finalised in May 2012.

Legally relevant facts

From 1990 to 1994, South Africa was ruled by the National Party Government. This party erected a system of Apartheid , under which the rights of the majority black inhabitants were curtailed and white supremacy was maintained. The black inhabitants were repressed, any demonstration or resistance movement was cracked down. The corporations sued in this case did business in South Africa during the Apartheid era. The plaintiffs held that the defendants actively and willingly collaborated with the government of South Africa in maintaining apartheid.

Core legal questions

The most important question presented here was whether the District Court had erred in concluding that there was no subject matter jurisdiction for claims that the defendants had aided and abetted human rights violations associated with apartheid.

Specific legal rules and provisions

Alien Tort Claims Act (ATCA).
Torture Victim Protection Act (TVPA).
Paragraph 1332(a)(3) of Title 28 of the US Code.

Court's holding and analysis

The panel affirmed the District Court’s dismissal of the Digwamaje Plaintiffs’ TVPA claim. A prerequisite of liability under the TVPA is that one “acts together with state officials or with significant state aid”. According to the Court, that had not been the case.

The majority opinion vacated the district Court’s dismissal of the plaintiffs’ claims under the ACTA, stating that the District Court had erred in holding that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction. In a concurring opinion, Judge Katzmann concluded that “individual responsibility of a defendant who aids and abets a violation of international law" falls within the scope of the ATCA. In order to substantiate this, Judge Katzmann refers to, among others, the statutes creating the Yugoslavia and Rwanda tribunals. Judge Hall, in his concurring opinion, also derives a standard of accessorial liability under the ACTA, but derives this from federal common law, not international law. Judge Korman filed a separate opinion, arguing that the case should be dismissed because of, for example, the fierce opposition against the proceeding of this case from South Africa and the United States.

Further analysis

Although not referring to this particular case, Martin wrote an article on corporate liability under the Torture Victim Protection Act. Cassel wrote an article on corporate aiding and abetting of human rights violations. Handl also discusses this matter and refers specifically to the apartheid litigation cases. Jenkins wrote on this case from a transitional justice perspective. Simcock also addressed the issue of transitional justice, and assessed whether litigation is consistent with the work of the Truth and Reconciliation Commission. The Court of Appeal’s ruling that indirect liability (such as aiding and abetting) falls within the scope of the ATCA, led to an article written by Knutson.

E. M. Martin, ‘Torture, Inc.: Corporate Liability under the Torture Victim Protection Act’, Northern Illinois University Law Review, 2010, vol. 31, pp. 175-209.

D. Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’, Northwestern University Journal of International Human Rights, 2008, vol. 6, pp. 304-326.

G. Handl, ‘In Re South African Apartheid Litigation and Beyond: Corporate Liability for Aiding and Abetting under the Alien Tort Statute’, German Yearbook of International Law, 2010, vol. 53, pp. 425-361.

C. Jenkins, ‘The Jurisprudence of Truth? Litigating Apartheid in U.S. Courts’, Journal of Comparative Law (United Kingdom), 2009, vol. 4, pp. 110-132.

J. Simcock, ‘Unfinished Business: Reconciling the Apartheid Reparation Litigation with South Africa’s Truth and Reconciliation Commission’, Stanford Journal of International Law, 2011, vol. 47, pp. 239-263.

L. Knutson, ‘Aliens, Apartheid and US Courts - Is the Right of Apartheid Victims to Claim Reparations from Multinational Corporations at Last Recognized?’, Sur-International Journal on Human Rights, 2010, vol. 7, pp. 172-189.

Instruments cited

US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.
US Torture Victim Protection Act (Public Law 102–256, H.R. 2092, 106 Stat. 73), 1991.