Unfinished Business: Reconciling the Apartheid Reparation Litigation with South Africa's Truth and Reconciliation Commission

Article excerpt

  I. INTRODUCTION
 II. PART I: THE STRUCTURE AND INTENT OF SOUTH AFRICA'S TRC
     A. Historical Context
     B. Structure--An African Conception of Justice?
     C. The Nature of Reparations Recommended by the TRC
     D. The TRC's Approach to Amnesty
III. PART II: CORPORATE PARTICIPATION IN THE TRC
     A. The TRC's Approach to Corporations
     B. A Performance with "Glaring Absences"
     C. An Unfulfilled Promise
 IV. PART III: THE ALIEN TORT STATUTE (ATS) AND THE APARTHEID
     REPARATION LITIGATION
     A. The Evolution of the ATS
     B. Actionable Claims under the ATS and the Apartheid Reparation
        Litigation
     C. Remedial Characteristics
     D. The Limit of Corporate Complicity Under the ATS
  V. CONCLUSION

I. INTRODUCTION

In 1993, having spent the entirety of their adult lives fighting South Africa's apartheid regime, Nelson Mandela and the leadership of the African National Congress (ANC) were presented with an uneasy proposition. In exchange for conditional grants of amnesty for many of the most ruthless perpetrators of apartheid aggression, the white ruling National Party (NP) would agree to a power sharing arrangement with the ANC--the first step towards fully democratic elections in a country with more than seventy percent black voters. The ANC's decision, and the course that South Africa has charted since, is now well known. Rather than attempt to satiate any desires for retribution, South Africa would pursue a course of reconciliation. Whites, as well as blacks, would be welcome to remain, and to participate in the founding of a fully inclusive new democracy--a "rainbow nation." (1)

One method the South African leadership chose to facilitate this peaceful transition was the Truth and Reconciliation Commission (TRC). Broadly speaking, the Commission was intended to provide a pathway by which to achieve forgiveness while also ensuring that victims were provided a degree of truth and the opportunity for reparations. As is common in many historical circumstances of state-sponsored violence, enabling victims to share their stories and uncover the truth facilitates a process of healing, and restores a level of dignity to those who suffered. The result, as advocates of the TRC assert, is that a degree of forgiveness can then take place, and the urge for retribution or violence dissipates.

Although the TRC facilitated a degree of common understanding, almost two decades later, South Africa remains a nation of extreme inequality. The unofficial unemployment rate is approximately forty-two percent, (2) and in 2009, South Africa overtook Brazil as the world's "most unequal country" in economic terms. (3) Fueled in part by the lack of economic progress, and also by leftover frustrations regarding the methodologies of the TRC, some South Africans have pursued alternative methods of repairing the economic gap and accessing justice. In 2002, a large group of South African plaintiffs brought suit against twenty corporate defendants that were conducting business in South Africa during Apartheid. (4) The plaintiffs allege that these corporations were complicit in a range of human rights abuses, including "killings, torture and rape." (5) The legal vehicle that the plaintiffs used was the Alien Tort Statute (ATS), a strategy that that has become somewhat controversial in the domestic and international legal arenas. The ATS expressly enables aliens that have been victims of an international human rights abuse in violation of the law of nations to bring civil actions in U.S. federal courts. (6) The range of violations which fall under the Statute's purview are narrow, but it has become a potent tool for human rights litigators. (7)

The case against these corporations (herein, the "Apartheid Reparation Litigation"), has received a wide array of criticisms. (8) A common subtext, however, runs through many of the attacks. The issue of Apartheid, critics assert, has already been resolved by South Africa domestically--the TRC has run its course, and it achieved the peaceful transition to democracy that it was intended to achieve. …