US Court Allows Suit brought by Apartheid Victims

Last Thursday I spent almost an hour talking to my Introduction to Black Studies class about the nature of reconciliation envisioned by South Africa’s Truth and Reconciliation Commission (TRC).

I juxtaposed the discussion with the old reparations claim of “forty acres and a mule” that gained popular currency after the end of slavery in the US.

Two guiding question led the discussion in a class of about 50 or more students. The first question asked:"Is it necessary to confront the past in post-racist societies?” The second question had more to do with the purpose of confrontation and posed the following:"What is the nature of repair and rehabilitation in 'post-conflict' societies'?"

Students seemed to agree that the past cannot simply be swept into the pages of history.

But it was the issue of repair and rehabilitation that seemed to irk some. This was especially true for those who wanted strong punishments for perpetrators of racist crimes. One vocal student put the concern this way: ”Why should the perpetrators of abhorrent crimes simply walk away without going to jail or being punished for what they did?

I tried to explain that the notion of justice envisioned by the TRC was one that included extending amnesty to perpetrators. Amnesty was thought to be a good way to get perpetrators to confess and implicate others who were similarly complicit.

This attempt at establishing a larger truth about apartheid was seen as justice. A kind of justice that was non-retributive and perhaps even more holistic than what could of come out of a judicial process.

The students were not buying it.

They wanted to see a kind of justice that pointed fingers and sent perpetrators to jail. “How can it be justice if a victim has to live knowing that the killers get to live their lives as if nothing happened,” one student asked.

This is a good question that has no easy answer.

I said that “the killers don’t escape in this version of justice, they have to live with the knowledge that everyone they know, including their families, are aware of their role in what the TRC defined as “crimes against humanity.”

It was a hard sell. One lone student advanced the TRC assumption that “revenge was not healing.”

I did not tell the students that the TRC also left intact the pensions that the perpetrators of apartheid brutalities. I also did not point out that all of these perpetrators are now receiving benefits from the state.

I will tell them tomorrow and wait for the barrage of sentiment from some that the TRC “was a waste of time” and that a Nuremberg type of justice would have been more fitting.

I will also tell the students that a "US 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."

What this means is that plaintiffs such as the non-profit Khulumani Support Group, and 32 700 victims and survivors of apartheid, can now sue corporations that profited from apartheid.

You can read the court's decision here.

The Khulumani Support Group's website lists the defendants as:

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. (IBM); 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

I expect that most students will think the appellate court's decision is a good one. It may represent an attempt at a greater measure of justice for the victims.

I wonder what they are going to say when I tell them that the South African government, under the direction of President Thabo Mbeki, opposes the law suit because it deems it interference in the sovereign matters of post-apartheid South Africa.

Moreover, I wonder what they are going to say when I explain that the post-apartheid government opposes any measure that would hold white-owned and foreign corporations responsible for profiting off apartheid. The most salient reason being that this would be counter productive to the ideals of economic development the government wants to foster.

Whatever is said tomorrow, I expect that most will come to appreciate that confronting the past is a complex task that never ends. Issues that relate to confrontation, punishment, reconciliation, and forgiveness, are all subject to the pressure of interests and its ability to wield power.

Still, the past does not merely slip into irrelevance simply because those who have power say so.