Jewish World Review August 7, 2003 / 9 Menachem-Av, 5763

Thurgood Marshall Jr.

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Suing U.S. firms that helped South Africa free itself of apartheid makes no sense


http://www.jewishworldreview.com | The South Africa government is making a strong, but little noticed, statement in a New York federal court imploring to America's personal injury lawyers to stop interfering in its apartheid reconciliation process.

Following on the heels of President Bush's visit to the African continent last month, the government of South Africa and the U.S. State Department are joining forces to urge the dismissal of a misguided lawsuit seeking to extract cash from U.S. corporations under the guise that they actively promoted human rights abuses during South African apartheid.

The New York lawsuit and others like it around the country are sorely misguided. They interfere with the sovereignty of foreign governments and seek to redirect much needed rebuilding resources and investments from those who need it most to individuals bent on manipulating the American justice system to feather their own nests.

I was one of many lawyers joining sidewalk anti-apartheid protests at the South African embassy in Washington in the 1980s. In awe, I watched the coverage of Nelson Mandela's unbowed departure from decades of unjust imprisonment and was honored to be in South Africa as part of the official U.S. delegation for his historic presidential inauguration.

During the Clinton administration, I assisted the Vice President Al Gore's work on the Gore-Mbecki Commission, which fostered cooperation between the two countries on business development, education and other key issues.

A consistent thread throughout these experiences was the unmistakable sense of justice and fairness that became the hallmark of the new majority leadership in South Africa, first under President Mandela, and now under President Thabo Mbecki.

Dismantling the oppressive and immoral government system of apartheid and effecting a national reconciliation was achieved. What continues is the pressing need for adequate resources to rebuild that country and ensure the economic inequalities fostered by apartheid finally are overcome.

Having learned the importance and the power of the rule of law at an early age, I have long been sensitive to the ways the judicial system can be used to achieve justice; but also, sadly, how it can be abused.

Misuse and evil intent of existing laws were commonplace in South Africa during the apartheid regime. Unfortunately, an existing - although long dormant - law is being perverted by lawyers in our own country. They have seized on an obscure provision of U.S. law to misappropriate South Africa's long-overdue reform and progress.

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Enacted in 1789, the Alien Tort Claims Act (ATCA) allows foreign plaintiffs to litigate in U.S. courts - even when the alleged abuses took place in other countries. Virtually unused for nearly 200 years, attorneys claiming human rights violations now seek to expand ATCA's reach to multinational corporations that conducted business in South Africa.

Contending that such lawsuits often pose a threat to national security and foreign policy interests and could undermine the war against terrorism, the Bush administration recently filed a brief seeking to limit ATCA cases in U.S. courts. It acted with sound legal precedent.

In the case of South Africa, the lawsuits do not contain specific allegations of human rights violations committed by the more than 30 defendant corporations, including such blue-chippers as IBM, Ford, Citibank, Shell and Exxon Mobil. Those corporations, it should be noted, were early signers of the Sullivan Principles that effectively forced the apartheid regime to allow equality in the workplace - a development that hastened the end of a brutal system.

Instead, the trial lawyers claim any corporation that had any business interaction with South Africa during the period of apartheid rule helped to maintain the unjust process and, therefore, should be punished. The suits dubiously charge that those corporations must shoulder the blame for the horrific pain caused by apartheid, to the tune of billions of dollars.

In South Africa, the government there set up a Truth and Reconciliation Commission to examine apartheid abuses. The commission was given the authority to consider grant reparations to apartheid victims and to grant amnesty to those making full disclosure of the facts. It has done so, and continues to do so - by all accounts, in a fair, impartial and compassionate manner.

President Mbeki rejects the suggestion that U.S. courts - thousands of miles away - can do a better job at remedying the wrongs of apartheid than the Truth and Reconciliation Process. The 1993 South African Constitution calls for understanding, not vengeance, and says the pursuit of national unity requires the reconstruction of society and reconciliation among the peoples of that country.

Let that blueprint guide South Africans in their determined effort to end, once and forever, the horrors and economic injustices of apartheid. Arrogant outsiders should not be allowed to substitute their judgment of what is right for South Africa.



Thurgood Marshall Jr. is a partner at the Washington office of Swidler Berlin Shereff Friedman and is researching ATCA for the National Foreign Trade Council. Comment by clicking here.

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© 2003, Thurgood Marshall Jr.