The Case Against Apartheid

1. Introduction

A few moths ago we saw and heard a lot about the Apartheid claims. Since
1998 Jubilee South Africa has worked on the Apartheid claims for reparations
because of the evils of Apartheid.

2. What is this claim about?

This claim is about people who were tortured, killed, imprisoned, sexually
assaulted and so on by the police, army and other government bodies at the
time of Apartheid.

3. What is the legal basis for this claim?

The legal basis for this claim is because Apartheid was a Crime Against
humanity. In 1973 the United Nations declared Apartheid to be a Crime
Against Humanity because it was a system that committed murder, torture and
cruel, inhuman and degrading treatment, sexual assault, enslavement, banning
and force removals against people solely because they were Black. As a
result, the United Nations stated that any person or organisation that
committed the Crime of Apartheid would be guilty of a crime and should tried
and sentenced wherever such a person or organisation is found.

4. What is a crime against humanity

A Crime Against Humanity caused injuries such as torture, murder, detention,
sexual violence, slave labour and inhuman, cruel and degrading treatment, it
was against international law.

5. Against whom is this claim?

This claim is against foreign banks and foreign companies that supported the
Apartheid government as follows:

Banks that gave money to the Apartheid government to pay for its debts;

Companies that provided the Apartheid government with military ammunition
and support; and

Companies that conducted business in South Africa and made use of cheap
black labour.

6. Why against foreign banks and companies?

Local and International law state that any person who gives support to
another person to commit a crime is equally guilty of committing that crime.
Foreign banks and companies supported the Apartheid government by giving
money, arms and ammunition and used the Apartheid laws to exploit Black
people. These banks and companies knew that Apartheid was a Crime and yet
they continued to support and financed the Apartheid government.

7. Can companies and banks be held legally liable?

Yes, they can. In 1952 for example, the Nuremberg Tribunal convicted Emil
Puhl, a leading banker of the Reichsbank for helping the Nazi government of
Hitler with looted property. The Tribunal held that knowingly partook in the
looting of property, which, at times, caused the death Nazi victims.

8. Are there recent cases?Yes. A United States court recently held that the
oil company, Unocal, knew that the government of Myanmar (Burma) used slave
labour to help the company build its oil pipeline and held that Unocal was
liable for employing slave labour.

9. Where and under which law are the Apartheid claim instituted?

The Apartheid claims are instituted in the United States of America because
the country has a law that provides for such claims to be instituted there.

That law is known as the Alien Tort Claims Act (ATCA). The law states that
any person who is not a citizen of the United States may bring a case there
if any other person or company caused injuries to that person and those
injuries are against international law.

Since Apartheid, as a Crime Against Humanity caused injuries such as
torture, murder, detention, sexual violence, slave labour and inhuman, cruel
and degrading treatment, it was against international law.

10. Reparations

Reparation is due both for broad social reconstruction and development
programmes in affected communities and for individual compensation to
victims of apartheid human rights abuses. The first step towards reparations
must be an acknowledgement of the wrongs of the past and the ongoing social
damage that has occurred as a result. This damage needs to be repaired.11.
Reparations How?

To ensure that the collective portion of any compensation award from the
courts is used to maximise social benefit, the Apartheid Debt and
Reparations (ADR) campaign is promoting the formation of a Reparations Fund.
This Fund would be administered by organs of civil society, business, banks
and government.

How is Reparations linked to Debt cancellation?

Jubilee South Africa launched the Apartheid Debt and Reparations campaign in
November 1998. The Apartheid Debt and Reparations (ADR) campaign has for
close to 4 years campaigned in various ways for the cancellation of
illegitimate apartheid debt and reparations from businesses and banks that
profited from Apartheid. In November 2001 3 years after the launch and after
the campaign consistently raised the issue through media campaigns, popular
education and mobilization, direct meetings with Swiss and German government
officials and several international conferences the campaign took a decision
to facilitate the filing of legal suits as a strategy to ensure the issues
of Apartheid Debt and reparations were addressed. Debt cancellation can
therefore be viewed as one form of Reparations12. How to get involved?

Mass mobilisations both at home and abroad, supported by popularly organised
boycotts and

signature campaigns against selected international companies, went a long
way to defeating

apartheid. A claim for reparations is very much a continuation of the
popular campaign against

apartheid. Similar actions might well be required to do justice to the new
South Africa. Your

individual contribution is essential. Raise the issue at work, at play, at
prayer. Join the Apartheid Debt and Reparations campaign.

Reparations for the crimes of apartheid

Reparations have been much in the news of late. There has been talk - mostly
ill-considered - of vast sums of money. Reports have mentioned US lawyers
taking action before US courts on behalf of South African victims of
apartheid. What is all this about? What, indeed, are reparations?

Reparations are the repairing of a wrong, a making amends by way of
compensation which usually includes financial payments.

Apartheid was a crime against humanity. Such a crime is recognised in
international law and was used for the first time against the Nazi political
and business leaders at the end of the Second World War. The United Nations
declared apartheid to be crime in 1973.

However the United Nations failed to prosecute any of the apartheid
criminals. The support given to the apartheid regime by leading western
governments and business goes a long way to explaining why no legal action
was taken by the UN to uphold international law.

Jubilee South Africa is launching its own legal action to make good the
failure of the UN and other international bodies.

The US legal system allows people who are not citizens of the US to take
action against US companies that caused injuries to those people in defiance
of international law. International law states that any person who gives
support to another person to commit a crime is equally guilty of committing
that crime.

Jubilee is using this US opening even though it restricts the scope of the
reparations claim to US companies. Companies from other countries will find
it more difficult to escape all liability, if the US claim is successful. In
any event, there is inherent merit in holding some of the world's largest
corporations accountable and challenging their presumed right to make or
sell anything as long as it is profitable to their shareholders and
management.

US based or linked banks, the military industry and companies that assisted
the apartheid state in the administration or enforcement of apartheid are
prime targets. So, too, are those US companies that profited from the cheap
black labour provided in abundance by the inhumanity of the migrant labour
system, the pass laws, job reservation, and the virtual denial of basic
social, health and welfare services to black South Africans. These banks and
companies knew that Apartheid was a Crime. Yet, they continued to support
and finance the Apartheid government. Odious Apartheid laws were good for
business; and business was more than ready to profit from crime.

The crime of apartheid can never be fully costed. One cannot attach a price
to the pain, suffering and humiliation caused by apartheid. The dead cannot
be brought back to life. Many of the injustices can be quantified
individually. Taken together, however, presents a problem. For the total
amounts to a sum way beyond what can realistically be expected from
reparations. Reparations, in other words, can never be anything more than
symbolic.

What should the symbolic number be? It could be an arbitrary one.
Alternatively, it could be a number that borrows directly from Jubilee's
original campaign against the apartheid debt. There are many similarities
between the campaign for reparations and the one against apartheid debt.
Both are rooted in apartheid being a crime against humanity. Both campaigns
derive from international law. In both cases, neither national governments
nor international bodies have enforced international law. In both cases, the
same US banks are involved. It is therefore entirely appropriate that the
symbolic reparations paid should be equivalent to the total odious loans
made by US banks and companies to the apartheid state together with the
odious profits made by these US businesses in Apartheid South Africa.

The Truth & Reconciliation Commission (TRC) has recommended small financial
payments to some 20,000 individuals who came forward to prove that they had
been the victims of gross human rights abuses. It is an enduring scandal
that our government has not honoured this very modest TRC recommendation. It
is an outrage that the perpetrators of the abuses have been been given
amnesty while the victims still wait.

Jubilee's claims before the US courts go much further than the scope of the
TRC. As a crime against humanity, apartheid abused tens of millions of South
Africans not thousands of individuals. Jubilee's view is that the bulk of
any sum finally awarded as compensation for the crimes of apartheid ought to
be a collective award used, for instance, to finance the RDP, which is our
own Marshall Plan.

To ensure that the collective portion of any compensation award is used to
maximise social benefit, Jubilee is promoting the formation of a Reparations
Fund. This Fund which would be administered jointly by organs of civil
society and the government.

Mass mobilisations both at home and abroad, supported by popularly organised
boycotts against selected international companies, went a long way to
defeating apartheid. A claim for reparations is very much a continuation of
the popular campaign against apartheid. Similar actions might well be
required to do justice to the new South Africa. Your individual contribution
is essential. Raise the issue at work, at play, at prayer. Join Jubilee.