The Jurisprudence of Truth? Litigating Apartheid in U.S. Courts

Abstract

The field of transitional justice has to date been centrally concerned with issues of individual criminal responsibility, with the establishment and assessment of new international institutions designed to promote retributive justice, and with the relative merits of criminal trials and ‘alternative’ or ‘complementary’ mechanisms such as truth commissions. Less attention has been paid to the potential of civil litigation to contribute to goals traditionally associated with transitional justice. Moreover, the main focus to date has been on the criminal responsibility of state actors and, more recently, on leaders of ‘rebel groups’, whilst the role and liability of other non-state actors, such as multinational corporations, remains under-examined. Through the lens of the South African apartheid litigation, this paper explores the potential of civil litigation in US courts to expand the reach of transitional justice, to contribute to truth-seeking in transitional societies and to promote the accountability of multinational corporations for complicity in past human rights abuses.

Keywords: South Africa, transitional justice, apartheid litigation, civil liability, multinational corporations, Alien Tort Claims Act, reparation