Requiem for a Dream? The Impact of Kiobel on Apartheid Reparations in South Africa
Journal of International Criminal Justice
University of Johannesburg, South Africa
The Khulumani case, in which victims of Apartheid sued multinationals alleged to have profited from investments in pre-1994 South Africa, reflected and advanced international law developments with regard to corporate liability for human rights violations committed worldwide. It will be argued that corporations should be held accountable for human rights abuses and that pre-Kiobel, the Alien Tort Statute (ATS) provided a useful mechanism to ensure such accountability. Preserving the ATS as a means to achieving corporate liability is particularly important because ATS potentially provided a unique forum for the hearing of charges against corporations. This article will use the Khulumani suit as a template to assess the territorial reach of the ATS post-Kiobel and to assess whether, in future, the ATS is likely to be interpreted so as to permit corporate liability. The effects of the Kiobel decision on the Khulumani litigation will be considered, as well as the extent to which Kiobel forecloses ATS suits involving corporate liability for human rights violations. The article will also consider the alternative mechanisms that victims can resort to if the ATS route is no longer available to them.