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(Source picture: Rahul D'Lucca/Wikipedia)

(Source picture: Rahul D'Lucca/Wikipedia)

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

Court United States District Court Southern District of New York, United States
Case number 02 MDL 1499 (SAS)
Decision title Opinion and Order
Decision date 8 April 2009
Parties
  • Khulumani, and others
  • Barclay National Bank Ltd., and others
  • Lungisile Ntsebeza, and others
  • Daimler AG, 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
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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. After the Supreme Court remitted the case, the District Court established a framework to determine when corporations can be held liable for human rights violations. Simply doing business with a state which violates the law of nations is not sufficient to establish liability, but if a corporation provides means by which human rights violations can be carried out and if the corporation knows that its action will substantially contribute the perpetrator in committing human rights violations, liability can be established. After applying this framework to several allegations made against several corporations, the Court establishes that part of these claims are plausible, thus allowing these claims to proceed. 

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Procedural history

Three groups of plaintiffs filed actions against several multinational corporations. It was 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, the Court had jurisdiction under the Alien Tort Claims Act (ATCA), which allows aliens access to courts for alleged violations of the law of nations.

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 District Court granted the motion to dismiss on 29 November 2004. On 12 October 2007, the Second Circuit Court of Appeals ruled by majority that the District Court “erred in holding that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction”. This was affirmed the Supreme Court on 12 May 2008. The case was remitted to the District Court for reconsideration. The plaintiffs filed an amended and consolidated class action complaint. All defendants but Rheinmetall filed a motion to dismiss. 

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Related developments

In reaction to the District Court’s opinion, the suit has been amended. 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. In May 2012, a settlement between General Motors and victims of Apartheid was finalised. 

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Legally relevant facts

Between 1948 and 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 (pp. 1-2) 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 (pp. 3-4). 

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Core legal questions

The District Court had to assess the defendants’ motion to dismiss. In reviewing this motion, the Court has to assess whether the plaintiffs’ complaint “amplifies a claim with some factual allegations, rendering the claim plausible”. Once again, the plaintiffs claimed jurisdiction under the ATCA, based on torts committed in violations of customary international law. These alleged torts, committed under both direct and secondary liability (aiding and abetting and conspiracy) are apartheid, denial of the right to a nationality, extrajudicial killing, torture and cruel, inhuman or degrading treatment (CIDT), prolonged unlawful detention. The defendants disputed, most importantly, that the Court had jurisdiction under ATCA, as the law of nations does not recognise corporate liability for any of these torts. Additionally, the relied on ‘prudential doctrines’ to argue that jurisdiction was lacking. More specifically, they referred to the political question doctrine, which prohibits the Court to examine questions which belong in the exclusive domain of other branches of government, and to international comity, which basically means that a Court will decline to exercise jurisdiction in a case properly adjudicated in a foreign state. 

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Specific legal rules and provisions

  • Alien Tort Claims Act (ATCA).
  • International Convention on the suppression and punishment of the crime of Apartheid.
  • Articles 25(c) and 55 of the Rome Statute of the International Criminal Court.
  • Article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination.
  • Article 16(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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Court's holding and analysis

In the context of commercial services, the Court established that ‘provision of the means by which a violation of the law is carried out’ can amount to aiding and abetting liability under customary law (pp. 44-45), provided that the aider and abettor knows that its actions will substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations (p. 54). Based on this framework, the Court concludes that the following claims are plausible:

- Daimler, Ford and GM aided and abetted apartheid, torture, extrajudicial killing and CIDT (p. 59).

- IBM aided and abetted apartheid and arbitrary denationalisation (p. 61).

- Rheinmetall aided and abetted extrajudicial killing and apartheid (p. 73).

The Court held that the political question doctrine did not apply in this case, most importantly because resolution of this case neither requires this Court to pass judgment on US policy. Neither did international comity apply, most importantly because this law suit does not interfere with the Truth and Reconciliation Committee in South Africa (pp. 108-111). 

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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.

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Instruments cited

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Additional materials

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