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U.S. high court allows apartheid claims against multinationals

The suit argues that by doing business with South Africa, the companies abetted the racist former regime.

By Staff writer of The Christian Science Monitor / May 13, 2008

The US Supreme Court has affirmed a lower court ruling that multinational companies can be sued in a US court for allegedly aiding and abetting the former apartheid government in South Africa.

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The high court announced Monday that it could not hear a case involving 11 consolidated lawsuits against more than 50 international corporations. Four justices recused themselves from consideration of the case apparently due to potential conflict, leaving only a five-justice court to consider whether to take up the suit.

In a brief order, the court said it lacked the necessary quorum. "Since a majority of the qualified justices are of the opinion that the case cannot be heard and determined in the next term of the court, the judgment [of the lower court] is affirmed," the unsigned order says.

The action returns the massive case to a federal district judge to hash out an array of additional legal issues. And it guarantees another round of extensive, high-stakes litigation over the use of American courts to enforce international human rights standards.

The plaintiffs are South African residents who suffered under the racist regime from 1948 to 1994. At one point in the litigation they reportedly sought $400 billion in damages, not from the South African government or its former officials but from companies that did business in South Africa during that time period.

The suit is being brought under the Alien Tort Statute, which permits individuals to sue in American courts for certain violations of international law.

The core allegation is that the corporations actively and willingly collaborated with the South African government to perpetuate the repressive, race-based system of apartheid.

The corporations deny the charge and are urging the courts to dismiss the case.

"None of the plaintiffs' many complaints and amended complaints alleges that [the companies] took specific steps for the purpose of furthering apartheid," wrote lawyer Francis Barron in his brief on behalf of the corporations.

He said the companies are being sued for merely doing business in South Africa at a time when the United States and other nations encouraged a policy of commercial engagement with South Africa.

The suit is opposed by the South African government as well as the governments of the United States, the United Kingdom, Germany, and Switzerland.

Apartheid was dismantled in a series of steps from 1990 to 1994 and replaced by an elected, democratic government.

The legal action runs counter to the approach adopted by South Africa's new government to deal with the country's violent and controversial past. The new government embraced a process of "reconciliation and reconstruction," rather than a version of victors' justice.

Mr. Barron's brief quotes South Africa's Minister of Education saying: "South Africa must settle this issue for itself and does not need the help of ambulance chasers."

Lawyers for the victims of apartheid had urged the Supreme Court not to take up the case. A New York-based appeals court declined in October to dismiss the lawsuit, upholding the plaintiff's aiding and abetting theory. The panel then sent the case back to trial court to rule on whether the apartheid victims could rely on other legal theories as well.

Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito declined to participate in the case because they own stock in some of the sued corporations. Justice Kennedy recused himself from the case because his son is an executive with one of the sued companies, according to the Associated Press.