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The Khulumani Litigation: Complementing the Work of the South African Truth and Reconciliation Commission

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The Khulumani case, a case brought under the 1789 Alien Tort Claims Act (ATCA) by victims of Apartheid represents one of the most ambitious attempts by victims to obtain reparations. The victims in this case are charging a number of multinational companies with aiding and abetting the Apartheid government. This article will consider the nature of the Khulumani case and its prospects for success. The article focuses specifically on the 'aiding and abetting' aspect of the Khulumani case. The various approaches in the Khulumani litigation as to whether the defendants' conduct constitutes aiding and abetting in international law will be discussed. The relevance and influence of the 'political question' doctrine will also be discussed. It will be argued that it is fitting and correct for aiding and abetting in international law to be applied to corporations. It will further be argued that the Second Circuit case and the subsequent District Court Decision by Judge Scheindlin represent a development in the approach to the political question doctrine in the United States. Thereafter, the article will consider whether the Khulumani case its into the concept of a mass claims procedure. The author argues that the Khulumani litigation continues the work of the Truth and Reconciliation Commission and complements it. The payment of reparations has been described as the 'unfinished legacy' of the Truth and Reconciliation Commission. To the extent that ATCA can facilitate the payment of reparations, it can be considered a mechanism of transitional justice.


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