For more than 14 years a group of South African nationals have been fighting it out in court with the US-based corporations IBM and Ford, using a once-obscure American law from the 18th century to file a lawsuit claiming the companies aided and abetted human rights abuses carried out by the government of South Africa during apartheid rule.
In a class action filing known as In re South African Apartheid, dozens of plaintiffs accuse IBM of knowingly creating a plan for, and providing technology to, the South African government — as early as the 1950s — that was used in the apartheid regime's campaign to denationalize black citizens.
For its part of the lawsuit, Ford is accused of "directly participating" in the South African government's enforcement of apartheid from 1973 to 1994. The lawsuit accuses the American car manufacturer of purposely selling vehicles — some with special modifications — to security forces in South Africa that were used to commit violent repression of black South Africans.
The plaintiffs say Ford's US headquarters maintained "rigid control" over its operations and subsidiaries in the country, with the lawsuit also claiming the company enabled abuses committed against Ford employees opposed to apartheid. Local Ford managers allegedly identified anti-apartheid activists employed by the automaker, information which reportedly led to their arrest and torture by security forces.
"IBM in the US basically formed and executed a plan for the South African government to denationalize black south Africans," Susan Farbstein, at Harvard Law School's Human Rights Clinic, which is currently a co-counsel on the case, told VICE News. Farbstein added that "Ford [in the US] was making key decisions" about operations in the country, which maintained apartheid from 1948 to 1994 and was placed under international sanctions in 1986.
According to the plaintiffs, IBM provided essential support to authorities by creating the technology that established a system of identity documents used to denationalize black citizens and administer the "homelands" that were created to house different ethnic groups.
"Defendants' specialized product development, sales of such tailored products, and provision of expertise and training aimed at facilitating or enabling the international law violations perpetrated against Plaintiffs," the filing claims.
The claim alleges that as early as 1965, when South Africa was dependent on computer technology from abroad, IBM's US headquarters bid on contracts to create the documents. Despite having spun off the South African office into an independent subsidiary after sanctions were imposed in the late 1980s, the suit accuses the US office of staying intimately involved in business done in the country.
"Even after sanctions prohibited sales of the restricted goods to identified South African authorities," the claim states, "defendants intentionally and repeatedly provided the means to carry out the violations by placing their specialized products in the hands of the very abusers who had already been identified for using such methods to violate human rights."
Sophia Cope, a staff attorney at the Electronic Frontier Foundation (EFF), which recently submitted an Amicus Brief on the plaintiffs' behalf, told VICE News that the complaints made by in the suit are very plausible. Cope, like others, drew parallels to IBM'S provision of a similar identification system to the Nazis during the Holocaust.
"IBM has a well documented history of doing something very similar," she said, in reference to the punchcard system IBM developed for the Nazis that was allegedly used to identify Jewish citizens in census data.
In the South African case, IBM itself admitted that its computers were used for the national identity system in a 1982 letter to the US State Department, but the level of involvement and awareness at US company headquarters still remains unclear.
'ATS contains no geographical limits and no person limitations, except the plaintiff has to be an alien.'
Details proving one way or the other how involved IBM was may never be made public as the lawsuit depends entirely upon a peculiar 226-year-old law known as the Alien Tort Statute (ATS). The one-sentence statute has allowed foreign plaintiffs to pursue human rights grievances in US courts, but it has proved to be complicated ground for the federal judiciary.
The case started as more than a dozen lawsuits in 2001 filed by multiple plaintiffs against a host of different multinationals, but through a series of appeals many of the complaints were thrown out and the rest consolidated.
In its current form, the suit has been kept alive by a moratorium on ATS cases after a 2013 Supreme Court ruling put the first major limitations on the statute. Now in limbo in the Second Circuit Court of Appeals in the Southern District of New York, the case may finally be entering its final phase, pending an appeal filed by the plaintiffs' lawyers at the end of January.
Understanding ATS has been a challenge for judges and scholars alike, as it requires interpreting what the founding fathers had in mind when they included the statute in the Judiciary Act of 1789 — a code that established the federal judiciary in the United States. There is very little evidence left that explains the purpose of ATS, and as Ken Anderson, a law professor at American University, explained to VICE News, "this thing just kind of sits there, it's only one sentence long."
The sentence states that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
According to Anderson, it's widely believed the original intent may have been to legislate cases of piracy, allowing aliens — foreigners or non-US citizens — to bring suits in the US. In its early history the statute was barely used or mentioned, save a citation by a former attorney general in pirate-related action. It was then seemingly forgotten by US officials and lawyers until a human rights case in 1980 brought it back to life.
Filartiga v. Pena-Irala involved a two Paraguayan citizens residing in the US who sued a Paraguayan police chief over human rights abuses against their family member. A second district court decision at the time ruled the statute gave the federal court jurisdiction over cases involving two alien parties.
"This took a lot of people by surprise," Anderson said. "ATS contains no geographical limits and no person limitations, except the plaintiff has to be an alien."
The Filartiga decision opened a judicial precedent that led to a series of cases brought by foreign nationals against government officials in other countries, regardless of whether they resided in the US or not. More often than not, as Anderson explained, these cases were brought with the defendant in absentia and were more symbolic than anything.
'That these plaintiffs are left without relief in an American court is regrettable […] But I am bound to follow [legal precedent], no matter what my personal view of the law may be.'
The 1990s ushered in a new wave of suits brought under ATS, this time against international companies accused of facilitating human rights abuses under oppressive governments or committing atrocities themselves. Many of these cases were delayed or put on hold as the courts figured out what to do with the unprecedented lawsuits using this obscure law. Ultimately, all of the pending cases were affected by the Supreme Court's landmark ruling in Kiobel vs. Royal Dutch Petroleum, a decision that offered the first limitation on the application of ATS.
In the Kiobel case, the judges determined that the Nigerian plaintiffs' accusations that Royal Dutch Petroleum had carried out deadly attacks on the Ogoni people did not meet ATS standards because it had occurred outside of the country. The decision ruled that in order to fall under ATS, the case in question must "touch and concern" the US. Since the ruling, judges have taken this to mean that the US branch or headquarters of a company in an ATS case must have a direct link to the event that occurred.
That's where the South African lawsuit comes back into the picture. After more than a decade of appeals, the plaintiffs were asked to resubmit material based on the new parameters established by the Supreme Court ruling. The legal team submitted their first attempt to prove that US-based actions from IBM and Ford aided and abetted the South African government, as deemed necessary by the high court, but their motion was denied in August.
"That these plaintiffs are left without relief in an American court is regrettable," US District Judge Shira Scheindlin wrote in the decision. "But I am bound to follow [legal precedent], no matter what my personal view of the law may be."
Disagreeing with the second district court ruling, the legal team has appealed. "We think the the district court got it wrong," Farbstein said, explaining that the court had misread Kiobel and had also gotten other ATS decisions wrong since.
While critical in general of the South African lawsuit and its use of ATS, Anderson said the plaintiffs likely have a case to at least enter the discovery phase of the case — the point at which evidence is gathered and presented.
"Is IBM's involvement sufficient enough to create jurisdiction over IBM in a court in the US? The answer would easily be yes," he said.
Cope agreed, explaining that the public evidence presented so far should be enough to move the case forward.
"As the plaintiffs' proposed amended complaints show, there is enough public evidence to suggest that IBM New York was involved in developing the national identification system for South Africa," she said. "So the lawsuits should be reinstated and the plaintiffs should be allowed to get to the evidence gathering phase of the case to try to prove their claims."
According to Cope, considering American and IBM dominance in software technology during the time in question, it's hard to believe that the US headquarters had nothing to do with what went on in South Africa. "IBM was a leader in technology and those advancements came out of R&D in New York," she said.
While IBM may have been the hardware of choice in the last century for oppressive regimes in Germany and South Africa, a new wave of companies have been accused of aiding human rights abuses in the internet era. A lawsuit against Cisco, for example, accuses the internet routing manufacturer for supplying technology to China that allowed the government to surveil members of a local spiritual group.
According to Cope, businesses choosing to provide technology to oppressive regimes in places like Bahrain and Syria is a growing concern. This, she said, is what keeps the South African lawsuit relevant. Even in a decades-old case involving actions that predated the personal computer era, Cope stressed the importance of holding companies accountable for actions abroad.
"This case is not just about an isolated situation that occurred decades ago. It is emblematic of a global problem of technology companies lacking moral scruples in the deployment of their technologies, from IBM's own well-documented relationship with the Nazis to modern companies like Cisco customizing surveillance tools to oppress disfavored groups," she said.
Follow Kayla Ruble on Twitter: @RubleKB