I find it interesting that the BBC, not the mainstream US press and media reported on a potentially historic case in the Federal Court of the United States at the beginning of the year. Several multi-national corporations (among the corporations named are IBM, Ford Motors, Daimler, General Motors, UBS, Fujitsu and Barclay’s Bank) are litigants in a $400 billion dollar lawsuit initiated by the victims of South African apartheid. The case was originally filed in 2002 and accuses the corporations of “knowing participation in and/or aiding and abetting of the crimes of apartheid; extrajudicial killing; torture; prolonged unlawful detention; and cruel, inhuman and degrading treatment.” This would be in direct violation of international human rights laws. The corporations (defendants) contend that “A corporation lacks the qualities of a moral agent, e.g . it has no moral conscience; corporate liability does not exist because moral condemnation can only be imposed on natural persons.” The corporations managed to get the case dismissed in 2004. That decision was successfully appealed in 2007 by the victims (plaintiffs). In 2008 the corporations petitioned the US Supreme Court to review (certiorari) the lower court (US Court of Appeals for the Second Circuit) decision to allow the plaintiffs case to go ahead. Interestingly, in May 2008 the US Supreme Court refrained from issuing a decision because four of the nine justices recused themselves due to conflicts of interest. In that action the US supreme Court had no other choice but to uphold the decision of the Second Circuit Court of Appeals allowing the case to move forward. In September 2009 the South African government after originally opposing the lawsuit reversed course and decided to publicly support the lawsuit.
What has allowed the lawsuit to even be initiated in United States courts is a series of antiquated laws dating back to 1789. Remember, the Revolutionary War had just ended in 1783. The Alien Tort Claims Act (28 U.S.C. 1350) allows people from outside the U.S. to bring a civil lawsuit against another entity or person for alleged crimes committed outside the U.S. The historical record about what caused the creation and thought behind the Act is lost to history.
The Khulumani case (Khulumani et al v. Barclays National Bank et al) is significant because it is an attempt after the fact to penalize and acknowledge the impact of a corporation’s investment in the illegality of governmental actions. This case places other corporations “on notice” and will serve as a deterrent to corporations being complicit in illegal, illegitimate and criminal governmental actions. This case also is about reparations to the South African people.
Many of us forget that Martin Luther King in his “I have a Dream” speech over 46 years ago briefly touched on Black America’s issue of reparations for the inhumanity of slavery and racial bias: “In a sense, we’ve come to the nation’s capital to cash a check. It is obvious that America has defaulted on this promissory note,
insofar as her citizens of color are concerned. Instead of honoring
this sacred obligation, America has given the Negro people a bad check.
A check which has come back marked ‘insufficient funds.'” The United States Senate in 2009 unanimously approved a resolution issuing an apology for slavery, however the resolution specifically states it cannot be used in reparation cases against the United States government.
Instead of attempting to litigate against the US government, is it possible using the South African model to litigate against corporations that profited from slavery? Companies like: Aetna, New York life Insurance, JP Morgan Chase Bank, RJ Reynolds Tobacco, Brown and Williamson, CSX Corporation, Union Pacific Railroad, Norfolk Southern Co., and Bank of America. These companies or their antecedents profited immensely from the American slave trade.
Despite the abolishment of slavery, Jim Crow, and other laws that was America’s apartheid, the companies mentioned did aid, abet, and profit from the killing, torture, detention, and inhuman treatment of generations of our people. Doesn’t that call for reparation on par with our South African brothers and sisters?
The United States desires to be the moral compass of the world. The Alien Tort Claims Act is a legal vehicle that is an example of our founders wish “for a more perfect Union.” Rev. Dr. Martin Luther King saw the potential greatness in America once it rid itself of the cancer of racism. Today, we must start to pay attention to this case and the eventual judgement that will be rendered. The execution of this case may become the template for our “40 acres and a mule.” The promissory note will be cashed!
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