Redefining Complementarity with the International Criminal Court
41
and not representative of the R&R Committee representations of the reparations policy for South Africa, the views of victims, victims’ groups or civil society consulted in the process. The flawed reparations process in South Africa thus represents the ‘unfinished business’ and a ‘missed opportunity’ for true reconciliation in South Arica. This unfinished business has invited litigation in South African courts and for the majority of South Africans who were previously disadvantaged during the apartheid era, a deep sense of betrayal by the government. The victims of apartheid have generally remained true to this bargain – they have, by and large, traded in vengeance and retaliation but where are the reparations for these concessions? The dissatisfaction with this process of dealing with reparations by government has also invited litigation courts outside of South Africa, notably in the United States. Discussions on the findings of these courts are hopefully instructive for our purpose here, at the very least for their comparative value. Under the Alien Tort Claims Act of the United States, victims and relatives of victims of the apartheid regime sued several corporations for their involvement in South Africa in the period between 1948 and 1994. The plaintiff reasoned that they were liable because the police shot demonstrators “from cars driven by Daimler-Benz engines”, “the regime tracked the whereabouts of African individuals on IBM computers”, “the military kept its machines in working order with oil supplied by Shell” etc. The South African Government’s response to the lawsuit was emblematic of their handling of reparations issue more generally. Penuel Maduna, the former Minister of Justice filed an affidavit with the court requesting that the case be dismissed on grounds that it interfered with South Africa’s own reconciliation process and state sovereignty. The action only served to confirm the perception that South Africa’s reparations policy and the rhetoric accompanying it have been more concerned with reassuring the business community and past beneficiaries than it was with securing justice for victims of the past. Ultimately the case in the Supreme Court was not in favour of the victims, but the lower courts made some findings which are key: Daimler, Ford and General Motors aided and abetted apartheid, torture and extrajudicial killing; IBM aided and abetted apartheid and arbitrary denationalization etc. General Motors entered a settlement with the victims of $1.5million before the decision of the Supreme Court was issued.
Conclusion Suffice it to say, as others before me and others after me will posit – there is no cookie-cutter or prescriptive model for reparations. States and international institutions continue to grapple with adequately and effectively repairing the lives of victims and survivors of human rights violations and international crime. It is my firm belief that each state dealing with the past must approach the question of reparations in a way that is most relevant for those that by right must obtain reparations. I refrain from the use of the word “beneficiaries” because this word connotes, at least in my mind, the idea that victims are benefiting from reparations awards. Nothing could be further from the truth. There remains a critical role for the courts in Uganda to stymie executive reneging on the promise of reparations for victims, perhaps to shape the parameters for reparations schemes in conjunction with other stakeholders.
A
Avocats Sans F rontièr es