In 2011, South Africa’s Constitutional Court in an unprecedented step classified the gold mining industry’s historical and ongoing systemic exposure of mineworkers to occupational lung disease as acts of public and private violence. In this first blog, I provide the historical and current context in which to understand this classification and how it “implicates the right to freedom and security of a person.”
Every once in a while, a major case or event will have a dramatic impact on the field of business and human rights, such that it deserves careful consideration and analysis. In the US, cases like Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank changed the legal landscape for human rights litigation. In South Africa, the recent settlement agreement in the Nkala and Others v. Harmony Gold Mining Company and Others class action is one of the most complex multi-party class settlements in the world today.
Human rights and labor advocates often raise the possibility of using the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1962) (“RICO”) to sue companies who violate human rights overseas. At first glance, this seems like a great fit. The Act provides both civil and criminal liability for individuals and organizations, including corporations, engaging in a pattern of certain criminal acts (including murder, extortion, bribery and other crimes) that are often involved in human rights abuse cases. So why can’t foreign victims of torture, murder or crimes against humanity at the hands of U.S. companies operating abroad bring RICO suits for damages?