Klage gegen Apartheid-Profiteure zugelassen

Der erste Beitrag in diesem Blog ist zugleich ein überaus positives Signal für den Kampf um Gerechtigkeit und Entschädigung im heutigen Südafrika. Nach fast fünf Jahren hat ein New Yorker Gericht die Klage gegen mehrere internationale und führende deutsche Konzerne zugelassen, die von der Apartheid in Südafrika über Jahrzehnte profitiert haben.

Im Folgenden dokumentieren wir die Presseerklärung der deutschen Sektion der Internationalen Kampagne für Entschuldung und Entschädigung im südlichen Afrika und die Presseerklärung der Khulumani Support Group aus Südafrika, die die Klage u.a. eingereicht hat. Zusätzlich die Presseerklärung von Jubilee South Africa und ein Artikel aus der linksliberalen Wochenzeitung Mail & Guardian.

New Yorker Bezirksgericht lässt Klage gegen Apartheid-Profiteure zu

Die deutsche Sektion der Internationalen Kampagne für Entschuldung und Entschädigung im südlichen Afrika begrüßt die Entscheidung des New Yorker Bezirksgerichts, das Verfahren gegen 22 internationale Konzerne, darunter die Deutsche Bank, die Dresdner Bank, die Commerzbank, Daimlerchrysler sowie Rheinmetall zuzulassen.
Kläger sind 91 südafrikanische Opfer schwerer Menschenrechtsverletzungen der Apartheid, sowie Khulumani Support Group, eine Selbsthilfeorganisation, welche 32000 Apartheidopfer vertritt.
„Der Gerichtsentscheid ist ein wichtiger Schritt im Bemühen um eine gerechteres Südafrika. Hierfür ist die Zahlung von Entschädigung für die Überlebenden des Apartheidregimes eine wichtige Voraussetzung“ sagt Anne Jung von der Frankfurter Hilfsorganisation medico international, die Khulumani seit 10 Jahren unterstützt.

Bereits am 11. November 2002 reichte die amerikanische Anwaltskanzlei Cohen, Milstein, Hausfeld & Toll zusammen mit der südafrikanischen Kanzlei Abrahams Kiewitz in New York Entschädigungsklagen gegen 22 internationale Konzerne wegen ihrer Unterstützung der Apartheid ein.
Die rechtliche Basis der Klage ist das amerikanische Gesetz des Alien Tort Claims Act, der für die Mehrheit von Menschenrechtsklagen in den letzten 20 Jahren in Amerika die Grundlage bildete. Nach diesem Gesetz können nicht-amerikanische BürgerInnen amerikanische, oder internationale in den USA niedergelassene Konzerne verklagen, falls eine kausale Beziehung zwischen der Tätigkeit der Unternehmen und der erlittenen Schäden hergestellt werden kann. Dabei muss es um Verletzungen internationalen Völkerrechts oder von anerkannten Menschenrechten gehen.

Für weitere Nachfragen wenden Sie sich bitte an:

Anne Jung
medico international
Burgstr. 106
D-60389 Frankfurt
Tel. +49 (0)69 94 43 827
Mobil 0179 123 07 19
jung@medico.de
www.medico.de

oder:
Simone Knapp & Angela Mulenga
Kirchliche Arbeitsstelle Südliches Afrika (KASA)
c/o Werkstatt Ökonomie
Obere Seegasse 18
69124 Heidelberg

Telefon 0 62 21 / 4 33 36-12
Telefax 0 62 21 / 4 33 36-29

Khulumani International Lawsuit Appeal Victory Removes an Obstacle to Justice for Victims and to the Advance of Corporate Accountability
Press Statement Johannesburg October 13, 2007

Khulumani Support Group welcomes the long-awaited decision of the New York circuit court of Appeal to reverse the finding of the district court on its Alien Tort Statute claim (Khulumani et al v. Barclays et al). The court held that liability of corporations for aiding and abetting the perpetration of gross human rights abuses does exist and that it can be pled under the statute. The Alien Tort Statute (ATCA) allows for people anywhere in the world to make claims against United States-based corporations that have caused damage to those people. It must be noted that the businesses listed in the lawsuit chose not to appear before the TRC.
The decision is a victory in a long struggle for justice for victims of corporate complicity with the illegitimate apartheid government. All the defendant companies listed in the Khulumani et al v. Barclays et al lawsuit can be shown, not only to have profited from apartheid, but also to have propped up the illegitimate regime long beyond the declaration of apartheid as a crime against humanity by the United Nations. The case is now being sent back to the district court where Judge Sprizzo who originally dismissed it as being, amongst other descriptions, „frivolous“, is now required to reconsider his decision. The success of this appeal comes in the light of a campaign that has been supported by an overwhelming majority of Truth and Reconciliation Commissioners as well as by numbers of South African and international civil society organisations and individuals.
The decision of the circuit court contrasts with the position of the South African government that requested the dismissal of the claims on the basis that they interfered with the sovereignty of the South African government to deal with the matter of reparations and that the claims might possibly deter foreign investment. (ex parte declaration submitted by former Minster of Justice Mr Penuell Maduna, dated July 11, 2003, in which former Minister Maduna refers to President Mbeki’s announcement of April 15, 2003 that final reparations would be „combined with community reparations and assistance through opportunities and services“. ) The opposition of the South African government to the Khulumani claim was unexpected given that it had initially declared that „(it) recognises the right of citizens to institute legal action“. However, government went even further when Khulumani tabled its appeal in January 2006, and submitted an amicus curiae brief to the Circuit Court in support of ‚big business‘ and against those victims who had sacrificed so much for freedom.
While we note that there is a dissenting opinion in the court decision, it seems to relate more to the two other cases than specifically to the Khulumani case and seems to be particularly influenced by the ‚unfortunate‘ Maduna affidavit, in which claims are made that government is in the process of implementing community reparations. This is untrue. What Minister Maduna was referring to were general measures for social reconstruction and development, rather than targeted reparations measures for affected communities.
At this stage, South Africa’s present government has to date not made public the community reparations programme referred to by Mr Maduna in his ex parte declaration, based on President’s Mbeki’s announcement of April 2003. Khulumani calls on the South African government to make their proposals on community reparations public without any further delay, noting that Khulumani submitted its suggested proposals for community reparations to the Office of the President on October 29, 2003, and that to date, government has still not responded to these. Khulumani notes, moreover, that more than R600 million remains in the President’s Fund and is not being used in a transparent manner, given that these funds are derived from the public fiscus and that organised victim groups continue to struggle to get access to resources to implement their plans for sustainable livelihoods. Khulumani also notes that the TRC Unit in the Department of Justice, established at the end of 2005, continues to function in an opaque fashion and has not yet involved Khulumani in discussions to plan how to comprehensively deal with the „unfinished business of the TRC“. The Ministry of Justice has, moreover, remained unresponsive to recent requests for urgent meetings to share information on the procedures available to victims for submitting applications to have their urgent needs addressed. The South African government, having failed to wholeheartedly embrace the full scope of reparations, is thereby promoting a model of transitional justice that incorporates „unfinished business“.
Khulumani believes that the circuit court decision in New York is an important step forward in a fight for reparations, not only for survivors of gross human rights abuses in South Africa, but for victims affected by unethical corporate behaviour everywhere in the world. Provided there is no challenge to this latest decision, the role of big business in aiding and abetting the apartheid government, and in profiting from apartheid, can at last begin to be interrogated.
Issued by Khulumani Support Group’s National Contact and Support Centre (www.khulumani.net )
For comment, please contact:
Khulumani’s Acting Director, Dr Marjorie Jobson +27 82 268 0223 or (046) 636 2715
Khulumani’s Advocacy Coordinator, Mr Tshepo Madlingozi-+27 82 496 9914
Khulumani’s Contact Centre Liaison Officer, Mr Zweli Mkhize +27 73 704 6414 or (011) 403 4098
Please note that the court decision can be accessed at
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTIxNDEtY3Zfb3BuLnBkZg==/05-2141-cv_opn.pdf
List of defendants:
Barclay National Bank Ltd., British Petroleum, PLC, Chevrontexaco Corporation, Chevrontexaco Global Energy, Inc., Citigroup, Inc., Commerzbank, Credit Suisse Group, Daimlerchrysler AG, Deutsche Bank AG, Dresdner Bank AG, Exxonmobil Corporation, Ford Motor Company, Fujitsu, Ltd., General Motors Corporations, International Business Machines Corp., J.P. Morgan Chase, Shell Oil Company, UBS AG, AEG Daimler-Benz Industrie, Fluor Corporation, Rheinmetall Group AG, Rio Tinto Group and Total-Fina-Elf

Jubilee South Africa
Media Statement
14 October 2007

The United States Second Circuit Court of Appeals’ finding in favour of the plaintiffs in the Apartheid lawsuits represents a significant victory for those who suffered at the hands of the Apartheid regime and for human rights internationally. It also puts into stark relief the shameful position of the South African Government in support of the big banks and corporations and against so many of its own citizens and other citizens of the world who have suffered human rights abuses.

The Second Circuit Court of Appeals overturned the New York Southern District Court’s decision to dismiss the Apartheid cases. It effectively upheld the right of the plaintiffs to pursue their claims under the Alien Tort Claims Act, deeming that the act provides jurisdiction for the claims that the banks and corporations were aiding and abetting the Apartheid regime in violation of customary international law. The Court of Appeals further found that the District Court failed to properly address the interventions of the South African and United States Governments in dismissing the cases.

The Circuit Judges reached their findings despite the South African Government deliberately acting to prevent those who suffered human rights violations from having recourse to one of the few legal options available to them. Jubilee South Africa reiterates its call that the Government should abandon this course of going out on a limb against its own citizens, a course which also has negative repercussions for those who suffer violations in other countries. It should use the opportunity of the Circuit Judges’ findings to withdraw its intervention in the United States’ courts and stand with the citizens of the country and the world who are acting in pursuit of their legitimate rights.

Background

In 1999, Jubilee South Africa approached various banks that had financed the Apartheid regime to engage in discussion as to their role in making reparations to those that had suffered at the hands of the regime. This approach having been flatly rejected, Jubilee then pursued legal options and was advised that making a claim under the United States’ Alien Tort Claims Act, a piece of legislation dating back to 1789, during a more broad-minded period in United States’ history, offered the best chance of success.

A legal team, headed by Michael Hausfeld in the United States and Charles Abrahams in South Africa filed the Khulumani et al case, including, as plaintiffs, the Khulumani Support Group and some 90 individuals who suffered gross human rights violations, amongst whose number Dennis Brutus, a patron of Jubilee South Africa. It named 23 corporations, including banks and oil, motor and information and technology corporations, as having aided and abetted the Apartheid regime and thus liable to make reparations to those affected.

This lawsuit was consolidated with other Apartheid lawsuits, including Ntsebeza et al and Digwamaje et al. The matter of whether the cases could proceed to trial was heard collectively by Judge Sprizzo of the New York Southern District Court. He was aproached directly by the then South African Minister of Justice, Penuell Maduna, under persuasion from then United States Secretary of State, Colin Powell, to dismiss the cases on the grounds that they undermined South African sovereignty. This he duly did.

Maduna’s intervention has already been referred to in other cases before the United States’ courts, with negative consequences for people who have suffered human rights violations in other parts of the world. The current Minister of Finance, Bridgette Mabandla, has reiterated the South African Government’s position as presented by Maduna.

The plaintiffs in the Apartheid case appealed the District Court’s finding to the Second Circuit Court of Appeals and the matter was heard by Judges Katzmann, Hall and Korman, overtunring the dismissal of the cases.

For further information, please contact:
MP Giyose, Jubilee South Africa Chairperson, 082 350 0361
George Dor, Jubilee South Africa General Secretary, 011 648 7000, george@mail.ngo.za
Charles Abrahams, South African lawyer for Khulumani et al, 082 560 7152

US court gives nod to apartheid claims
Paritosh Bansal | New York, United States
Mail and Guardian, 13 October 2007

A United States appellate court on Friday allowed claims brought by victims of apartheid against dozens of major companies to go forward, saying a lower court erred in ruling it did not have jurisdiction over the matter.

The corporations named in the suits include oil companies such as BP and Exxon Mobil, banks such as Citigroup, Deutsche Bank and UBS, as well as other multinationals such as IBM, General Motors and Ford.

The plaintiffs include the Khulumani Support Group, a South African non-profit organisation that works with victims of apartheid and says it has 32 700 members who are survivors of apartheid violence.

The US Court of Appeals for the Second Circuit ruling vacated an order by US District Judge John Sprizzo in Manhattan that had dismissed claims brought under the Alien Tort Claims Act (Atca) by the plaintiffs, who had argued that the companies collaborated with the government of South Africa in maintaining apartheid.

„The district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for Atca jurisdiction,“ the court ruled. „We hold that in this circuit, a plaintiff may plead a theory of aiding and abetting liability under the Atca.“

Two of the three judges in the appellate panel — Robert Katzmann and Peter Hall — filed separate concurring opinions. The third, Edward Korman, concurred in part but disagreed with the judgement reversing the dismissal.

Three groups of plaintiffs had filed 10 separate actions in multiple federal courts asserting apartheid-related claims against the companies, according to the 147-page ruling. The cases were all transferred to the federal court in Manhattan in December 2002.

Torture claims
The appeals court did uphold the dismissal of claims made under the Torture Victim Protection Act. A group of plaintiffs had alleged the defendants aided and abetted the apartheid regime’s use of torture and extrajudicial killing against the plaintiffs.

The South African government had asked the district court judge to dismiss the cases, saying it regarded the proceedings as interfering „with a foreign sovereign’s efforts to address matters in which it has the predominant interest“, according to the ruling.

In his dissenting opinion, Korman wrote that the majority allowed the case to go forward „over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims“.

The US State Department had told the district judge that allowing the cases to proceed „risks potentially serious adverse consequences for significant interests of the United States“, according to the ruling.

The lawyer for two of the plaintiff groups, Paul Hoffman, called the ruling significant. „We have been waiting a long time for it,“ Hoffman said. „It is really a cause for rejoicing.“

The lawyer for the third group, Michael Hausfeld, called the ruling „a breakthrough and watershed in terms of international human rights“.

A lawyer for the companies could not be reached immediately for comment.

The appeals court also set aside the U.S. District Court’s order denying a motion by two of the plaintiff groups for leave to amend their complaint. — Reuters