The successful conclusion of the series of legal claims by individuals exploited by the Nazis through forced labour during World War Two and the resultant payment of billions of dollars in compensation was a breakthrough in international justice. The man leading the team of lawyers and scholars who championed that course is American civil rights lawyer, Edward Fagan. Today, Fagan is at the centre of another case for reparations, this time to compensate victims of apartheid. Fagan calls the apartheid reparations case, "the onward march for human justice."
Edward Fagan is his name but "most people know me by the name Ed", he says. Fagan calls his present involvement with the apartheid reparations case "a natural continuation" of the Nazi victim cases. He already made three working visits to South Africa as part of this collaborative effort with the country’s leading campaigner, Jubilee South Africa. Their case is against banks in Switzerland, Germany, France, England and the United States which profited from apartheid.
"This is a winning case" says Fagan confidently, explaining "the financial institutions involved will create a fund, which will be in the tens of billions of US dollars to assist victims of apartheid".
Ed Fagan makes three fundamental points which are in favour of his case. First, that the world had declared apartheid a crime against humanity and international sanctions had been imposed against the regime. Second, that, leered by the desire for profits, some companies had chosen to break or not to honour the sanctions and third, that those companies had provided the money to assist the apartheid regime to continue its horrendous policies. All these considerations put together amount to what he calls "a very simple straightforward case." "Let’s think of it as criminal," he begins his analogy. "If a criminal wants to perpetrate a tremendous crime and the crime is he’s going to steal from people and he’s going to enslave people, the criminal who wants to do that, has to have money to fund his or her operation. Without the money, the crime can’t be committed. The banks
gave the money so that the crimes could be committed. That’s the case. It is very
simple."
But observers don’t see it as simple and as straightforward as the renowned lawyer puts it. South African President Thabo Mbeki himself has publicly declared that he is not in favour of any legal action to claim reparations for apartheid. Ed Fagan realises that the president "is in a tight corner", but he thinks Mbeki should take a neutral position. He attributes the president’s position to fears that overt support for a reparations case may have a negative impact on the South African economy, if foreign investors believe that the government is going after people who provided financing for apartheid.
If the position of the political establishment is hurting the reparations campaign, Ed Fagan takes comfort in the mood among South African activists and NGOs that have spearheaded the reparations case for years. Instead of being discouraged by their president’s stand, they have been energised by the alliance with the US lawyer. In April 2002, four activists from South Africa, Mozambique and Namibia, carried out an extensive tour of Germany trying to explain the role played by some German companies in the crime of apartheid. Jubilee South Africa has already called upon the Swiss government and Swiss banks to make relevant documents available for an
independent commission to evaluate them, but there is no response so far. Ed Fagan is convinced that those documents will show the full extent of the profiteering that went on.
Two different types of claims are inherent in this case against the financial institutions. There are individual claims for people who suffered physical and financial losses as a result of apartheid policies, and there is the concept of apartheid debt, which Fagan admits "is a very sensitive issue." Apartheid debt refers to the huge amounts owed the world by the apartheid regime, which was taken over by the Mandela government when it came to power. "That debt is choking South Africa" Fagan argues, noting that if the South African government had that money at its disposal to fund for social and health programmes, the country would be better off.
After his experience with the big banks in the Nazi victim campaign, the human rights lawyer was hoping that this time they would be more forthcoming and cooperative. Instead, "what we are hearing from the Swiss, is exactly what we heard from them after the commencement of the holocaust cases and that is, we didn’t do it, we had nothing to do with it, we didn’t break any laws." Still he is convinced that they broke international law, contributed to an illegal regime, and assisted in inflicting enormous human suffering. "They will be brought to justice," Fagan is convinced.
If Ed Fagan’s reading of the eventual outcome of this reparations case comes true, apartheid victims will receive compensation. For Fagan the victims of apartheid could include all South Africans and even all frontline states, whose infrastructure and economy (roads, railway lines, bridges, factories, etc.) were severely damaged by the apartheid regime in extensive cross-border raids into countries where freedom fighters were given sanctuary. Confident about ultimate victory, Fagan is already thinking of how best the funds raised could be used. His main concern, "how to create a fund so that it actually benefits people and doesn’t just benefit institutions."
