A bad September for suits against corporations under the Alien Tort Statute

First there was Citizens United (2010), in which the U.S. Supreme Court gave corporations more ability to influence our politics. Now, one of the few avenues for holding bad corporate actors responsible for overseas violations of basic human rights has been seriously undermined. In a pair of cases from two highly influential federal courts, plaintiffs have lost appeals in cases involving corporate defendants under the Alien Tort Statute (prior posts).
Issuing the 1st decision was the U.S. Court of Appeals for the 9th Circuit.
In a mid-September decision, the 9th Circuit denied plaintiffs’ appeal from an adverse jury verdict in Bowoto v. Chevron (prior posts here and here). A jury in December 2008 had found Chevron not liable for the death of one protester and injuries to others when security forces, at Chevron’s request, attacked a group of protesters on an oil rig in the Niger Delta. Plaintiffs appealed on a number of grounds, including faulty jury instructions and the judge’s failure to allow a number of claims. (credit for photo above right)
The appeals court decision in Bowoto, from a panel consisting of 9th Circuit Judges Mary M. Schroeder, Jay Bybee (yes, that Bybee, the one who signed off on the torture memos) and District Court Judge Owen Panner, threw out all of plaintiffs’ claims. The opinion for the panel, written by Judge Schroeder (right):
► Held that the summary execution claim is not allowable under the ATS because it is preempted by the Death on the High Seas Act – a somewhat ironic result given that piracy on the high seas was one of the first, and most enduring, types of ATS claims. The court recognized the possibility of piracy claims but nonetheless held that all plaintiffs’ claims for wrongful death and survival had been preempted.
► Also dismissed all the allegations of improper jury instructions.
These rulings are disappointing, but case-specific enough to have limited application elsewhere.
► Not so the court’s ruling that corporations cannot be sued under the Torture Victims Protection Act. The TVPA applies to cases of torture or summary execution committed under color of foreign law. In Bowoto the 9th Circuit undertook to construe the statute's extension of liability to “an individual who…subjects an individual to torture.” The court held that use of the word “individual” rather than “person” to characterize both potential plaintiffs and defendants made clear that Congress meant to exempt corporations from the ambit of the law. Future TVPA cases therefore may sue individual defendants only.
(This ruling is now definitive for cases in the 9th Circuit (comprising Alaska, Arizona, California, Guam, Hawai'i, Idaho, Montana, Nevada, Northern Marianas Island, Oregon, and Washington); it is in conflict with the only other appeals court to consider the issue, the 11th Circuit.)
Issuing the 2d decision was the U.S. Court of Appeals for the 2d Circuit.
The 2d Circuit's late-September decision in Kiobel v. Royal Dutch Petroleum Co. (prior post) compounded the blow dealt by the 9th Circuit in Bowoto.
Kiobel is a companion case to Wiwa v. Shell, both brought by family of Nigerian activists killed for their protest activities against oil drilling in the Niger Delta, allegedly with the complicity and connivance of Shell officials. (photo credit) Wiwa settled in 2009 for $15.5 million, but the panel in Kiobel, led by Judge José Cabranes, decided to request supplemental briefing on the issue of whether corporations could be sued at all under the ATS. In the Kiobel decision, the panel decided that they cannot.
Thus, in the 2d Circuit, which includes New York, corporations have a liability-free zone for depredations abroad.
How could this happen, after a decade of litigation against corporations under the ATS and a number of settlements and jury trials, without the issue ever arising before?
Here’s one chronology:
Back in 2002, there was the Unocal case, involving allegations of forced labor, slavery and other rights violations as part of a pipeline project in Burma. (photo credit) As part of the years of legal skirmishing in that case, a 9th Circuit panel split on the question of whether it was international law or domestic legal doctrines that governed ancillary issues arising under the ATS. (Prior posts here and here.) That is, everyone agreed that the core definition of the “violation of the law of nations” came from international law.
But what about the innumerable other issues, like who can be sued and under what definitions of liability?
► Judge Harry Pregerson held that those questions were governed by international law, and looked to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia to answer the question of how to define “aiding and abetting” for purposes of ATS liability.
► Judge Stephen Reinhardt thought that domestic doctrines of agency, unjust enrichment and tort were more than sufficient and should be used to fill in all the necessary gaps in international law.
At the time, it was not clear to litigators what the implications of this choice could be, since both international and domestic law pointed in the same direction.
Because the panel decision was eventually withdrawn for unrelated reasons, the Unocal case created no precedent. It was up to the 2d Circuit to define the issue.
At first, the 2nd Circuit had as much trouble as the 9th. In Khulumani v. Barclay Int'l Bank Ltd., 504 F.3d 254 (2007), involving allegations of corporate complicity in shoring up the apartheid regime in South Africa, the judges split again. (prior post) (image credit) Judge Robert Katzmann, on the question of aiding and abetting, found that ancillary issues were governed by international law. Rather than look to the ICTY, however, he looked at the Rome Statute of the International Criminal Court, and concluded that aiding and abetting had a “purpose” requirement in international law, one not found in domestic law. Thus, turning to international law had the effect of raising the bar for what plaintiffs needed to prove.
A 2d Circuit panel that included Judge Cabranes agreed with this analysis in a subsequent decision in Presbyterian Church of Sudan v. Talisman Energy, Inc. (October 2009). It dismissed the case on grounds that the plaintiffs could not show that Talisman Energy had the purpose of aiding and abetting the crimes of the Sudanese security forces, even though the oil company knew about the violations and acted despite that knowledge. Plaintiffs’ certiorari petition was set for review by the U.S. Supreme Court at the end of September, but the Court seems not yet to have decided whether to weigh in.
Judge Cabranes’ decision in Kiobel took the reasoning in these earlier cases one step further: if we look for the definition of “aiding and abetting” in international law, then logically we should look for the answer to whether corporations are entities capable of committing actionable violations in international law as well.
Judge Cabranes, predictably, could find few cases in which corporations as such (as opposed to their officers and owners) were held criminally liable for international crimes. He too used the ICC Statute against plaintiffs, using the decision of the Rome Statute drafters not to allow prosecutions of legal persons as evidence of a customary norm excluding corporate liability. (This even though the Rome Statute makes clear that it does not necessarily follow customary law.)
Unfortunately, because of the very nature of international law, it is unlikely to provide answers to lots of questions – including this one – which have always been considered to be issues of domestic law.
As Judge Pierre Leval, concurring in the judgment in Kiobel, put it:

So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot's political opponents, or engage in piracy – all without civil liability to victims.

Let’s hope this new month of October brings better news on the ATS litigation front.

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.

Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.

In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.

The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria

has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.

Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)

Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)

Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,

the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.

This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.

Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.

The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

On 9/11, Remembering the Other’s Others: International Law & Muslim Fundamentalism

The ninth anniversary of September 11, 2001, finds the international community still grappling with the consequences of that terrible day.
Armed conflicts which began in the wake of 9/11 continue in Afghanistan and Iraq, spilling over now into Pakistan and Yemen with often devastating consequences for civilians. Human rights abuses in the “war on terror” remain largely unpunished, but will never be forgotten around the world. Xenophobia directed against Muslims serves as a useful tool for right-wing politicians in the West. And you may have heard that an idiot in Florida has been trying to decide whether or not he will burn hundreds of Qur’ans today.
At the same time, Muslim fundamentalist armed movements akin to those that perpetrated 9/11, like the various permutations of Al Qaeda and the Taliban, or Al Shabab in Somalia or Boko Haram in Nigeria, just to name a few, continue to pose major challenges to human rights in Muslim majority societies and around the world. For a terrifying insight into the worldview of defenders of such movements, see here.
Muslim fundamentalist armed movements often kill civilians indiscriminately, as they did on 9/11, a day to which Al Qaeda chillingly refers as “Holy Tuesday.” They also target artists, writers and freethinkers for assassination, and purvey systematic discrimination against women and religious minorities and LGBT individuals. They seek to impose their version of the Sharia on all Muslims everywhere – this often means advocating practices like stoning women for adultery. (credit for logo at right of the Global Campaign to Stop Stoning) Hence, such movements pose particular threats to international law in the areas of human rights, humanitarian law and conflict prevention, inter alia.
My article “Remembering the Other’s Others: Theorizing the Approach of International Law to Muslim Fundamentalism,” published this summer in the Columbia Human Rights Law Review, challenges international lawyers to develop a critical analysis of Muslim fundamentalist movements and to support the many Muslim human rights defenders battling fundamentalism.
Faced with the current polarized environment, this enterprise is unquestionably a daunting task, and I see the already constricted space for my argument narrowing further. Muslim fundamentalists – and those confused with them – have also themselves been the targets of a range of grave violations of international law by states in recent years, like torture. Racialized discourses and policies directed against people of Muslim heritage have proliferated since September 11, 2001, and are currently experiencing a particularly disturbing revival – what might be called hatredofmuslims version 20.10.
All of this fuels more fundamentalism.
Despite these real difficulties, offering a critical perspective on the contemporary problem of Muslim fundamentalism remains an essential project for international lawyers. As a discipline we in international law have mostly engaged critically with the (admittedly problematic) responses to Muslim fundamentalism, rather than with the phenomenon itself.
► Can we offer an accurate or useful commentary on the responses to Muslim fundamentalist movements if we overlook their existence and impact in the first place?
► Of what use is our critique of the “war on terror” if we are largely silent about one side of that “war”?
In fact, the failure of learned discourse in the United States – including in the field of international law – to name and thoughtfully explain the problem of Muslim fundamentalism actually risks facilitating discrimination against Muslims in general. This omission obscures the fact that contemporary terrorism and the “war on terror” actually revolve around a very specific set of politics and political actors, not around broader religious denominations or religious claims.
Ordinary Muslims or the Muslim religion as a whole must not be confused with specific fundamentalist movements and their adherents, just as most American Christians would not want to be identified with Christian fundamentalist Terry Jones. Yet, the mere critique of Muslim fundamentalist movements themselves is not per se an expression of anti-Muslim bias, just as criticism of the pyromaniacally inclined Pastor Jones is not an attack on Christianity. This, I fear, is a fact that is likely to get lost in the current cacophony.
Actually, Muslim fundamentalist armed groups’ primary victims, as the 2006 U.S. National Strategy for Combating Terrorism acknowledged, are often other people of Muslim heritage. Hence, defending the human rights of Muslims means successfully defeating fundamentalism (and vice versa).
In the contemporary period, Western discourse, including in the field of international law, has sometimes seemed to offer only two choices: the openly discriminatory or flawed characterization (Islam is inherently fundamentalist, all Muslims are fundamentalists and so on), or the one that is too politically correct to even broach the topic of fundamentalism. Neither one is helpful or accurate. What we need is a principled, human rights based critique of Muslim fundamentalism, alongside a principled, human rights based critique of discrimination against Muslims. To paraphrase a brilliant Pakistani colleague, I reject the idea that my choices are limited to accepting either Glenn Beck or the Sharia, and I reserve my right to criticize both. I utterly reject both the would be suicide bombers and the would be Qur’an burners, and neither one can ever justify the actions of the other.
Returning to today’s sad anniversary, I honor the memory of all the 2,976 victims of September 11. They were women, men and children who came from more than 90 countries, from many religious, racial and ethnic backgrounds, and from all walks of life. All are mourned by family and friends. In the current moment, I think about Amenia Rasool (left), a Guyanan-American Muslim woman who worked on the 95th floor of the World Trade Center. (photo credit) I first read about her in The New York Times remembrance section.
I am humbled by the thought of such a terrible death at the hands of Muslim fundamentalists, and compelled by the beautiful complexity of Amenia Rasool’s existence, a life which challenged all simple narratives about what it means to be a Muslim woman in America. Though she had an arranged marriage, she and her husband reportedly shared domestic tasks. She worked as an accountant by day, but in the evening when her chores were done, she was said to enjoy watching taped soap operas and painting her fingernails. All of these things – women working outside the home, dramatic entertainment and use of cosmetics are often prohibited by fundamentalists – sometimes on penalty of death. Meanwhile, many American right-wing racists cannot conceive of a Muslim woman with such a life, nor do those who wave hateful signs in protest against the proposed Muslim community center in Lower Manhattan (“No Islamic Settlements in America”) remember her, even in death. She would have been “the other” to some of these Americans, but was also “the other” for Muslim fundamentalists. It is this complex, multidirectional dynamic that I am trying to name with the title of my article, “Remembering the Other’s Others.”
I am hoping that human rights advocates will remember Amenia Rasool when they conceive of what human rights means in relation to September 11th and its aftermath. This means taking violence by nonstate actors – as well as by states – seriously, as I underscored in my September 11, 2008, post,"Terror/Torture." This means being relentless in demanding accountability for those surviving persons involved in such terrorist atrocities and for the atrocities of response that have followed. This means that we must face up to the menace of Muslim fundamentalism, while (and as one means of) staunchly defending the human rights of Muslims in the United States and beyond. (credit for 2009 photo of protest against Sudanese prosecution of Lubna Hussein for wearing pants)
The task of human rights, it seems to me, must be to create an international community that recognizes the complexity of a life story like Rasool’s, and that protects the Amenia Rasools of the world from all of the kinds of discrimination and coercion and horror and violence they can face – as women, as Muslims, as immigrants, as Americans, as civilians, as people who live these categories as overlapping and intersecting rather than opposing. Rasool left behind four children when she was murdered by Al Qaeda. Let us hope we can make that better world in their lifetime.
A few nights ago, I walked along the Hudson River, transfixed by the beams of the Tribute in Light, streaming upward where the Twin Towers used to stand, in commemoration of the approaching anniversary. (credit for 2009 photo, top left) The powerful illumination filled the sky where the most extreme Muslim fundamentalists had blown a terrible empty hole nine years ago. Despite that grave international crime, and all that has followed, for me these beams of light still reflect the simple promise that we human beings can do better in how we treat one another.

Word(s) up

Those of us who've labored at international law learned long ago that the just about the last place to find the meaning of terms in our field was the standard domestic reference.
Not at any more: Black's Law Dictionary has gone global.
That's the takeaway from the Autumn 2009 edition of The Green Bag, now celebrating its 13th year as "an entertaining journal of law."* Adjudging the newest edition of Black's "a product of its time," an article entitled "Timely Definitions" cites 8 "new entries" as cases in point.
A definition in 1 of the 8 entries alludes to the globalized nature of contemporary practice, for it traces a term not obviously international -- "advance-fee fraud" -- to its "believed" origins in Nigeria.
Fully 4 of the remaining 7 terms deal specifically with matters of interest to specialists in international or foreign relations law. These indeed reflect our times, ranging from "conflict diamond" to "national-security letter" to "waterboarding."
The 4th term in this latter group?

complementarity principle. International law. The doctrine that a country with control of a person accused of violating international criminal law has the jurisdiction to charge and try a person. · Because the jurisdiction of the International Criminal Court is complementary to the criminal jurisdiction of countries, that tribunal can assert jurisdiction over the accused person only if the country is unable or unwilling to undertake a genuine investigation and prosecution. – Sometimes shortened to complementarity.

This new entry, in particular, underscores that lawyers need to know a lot about law's operation at inter- as well as -national levels.

* To which yours truly was pleased to have contributed "Under Deconstruction: International Criminal Law in a Postmodern World," 3 Green Bag 2d 369 (2000).

On December 25

On this day in ...

... 1985, an ongoing armed conflict in West Africa, sometimes called the Agacher War because it centered in a resource-rich Agacher Strip between Burkina Faso and Mali, intensified when the troops from the latter country attacked a number of border posts and police stations in the former soon after a dispute over the apparently accidental presence of Burkinabe census agents at refugee camps in Mali. Following failed negotiation efforts by Libya, Nigeria, and the Organization of African Unity, a ceasefire was achieved 5 days after the outbreak of what in Burkina Faso became known as the "Christmas War."

(Prior December 25 posts are here and here.)

Torts Against Humanity

We’ve blogged before on the Bowoto case, brought against California-based Chevron Corporation for the injury and deaths of individuals protesting the defendant’s extraction activities in the oil-rich Niger River Delta region in Nigeria (Chevron facility at left; photo credit; Delta below right). Although many accounts of the case focus on the fact that the jury ultimately ruled in favor of the defendant (a trial blog is available here), the case has generated some important doctrinal rulings on the Alien Tort Statute (see for example Chimène Keitner’s work on complicity liability and the ATS). One opinion worth reading for international criminal law aficionados is the district court’s ruling on the cognizability of crimes against humanity (CAH) under the ATS: Bowoto v. Chevron, 2007 U.S. Dist. LEXIS 59374 (N. Dist. Ca. August 14, 2007). All key rulings in the case are available here (Earthrights International).

Crimes against humanity are a constellation of acts made criminal under international law when they are committed in the context of a widespread and systematic attack against a civilian population. The enumerated acts include murder, deportation, torture, sexual violence, and arbitrary detention. Like many international crimes, crimes against humanity are characterized by a dual mens rea element. A prosecutor/plaintiff must not only prove the existence of the mens rea associated with the underlying constitutive offense (e.g., intent to kill), but also that the defendant knew that his/her actions were part of the attack against a civilian population. These so-called chapeau (“hat”) elements applicable to all CAH serving to distinguish international crimes from “ordinary” acts of murder, mayhem, and assault prosecutable under domestic law (or, for that matter, from “ordinary” torts).
CAH have been the subject of several ATS suits brought by the Center for Justice and Accountability, and other human rights groups, These include:
► Cabello v. Fernandez-Larios, 402 F.3d 1148, 1152 (11th Cir. 2005) (finding that the work of the "Caravan of Death," a Chilean military unit that "traveled to many cities in northern Chile where the military officers engaged in acts of extrajudicial killing, torture, and abuse of various individuals who were incarcerated due to their alleged opposition to the military junta," constituted crimes against humanity);
► Doe v. Saravia, 348 F. Supp. 2d 1112, 1156 (E.D. Cal. 2004) (so characterizing atrocities committed by military "death squads" including the assassination of Monsignor Óscar Romero);
► Chavez v. Carranza, 2006 U.S. Dist. LEXIS 63257, *2 (W.D. Tenn. 2006) (same with respect to Salvadoran security forces); and
► Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1344 (N.D. Ga. 2002) (finding CAH liability on default judgment for acts involved in "ethnic cleansing" in the former Yugoslavia).

The Bowoto district court joined these courts (and others) in finding CAH cognizable under the ATS--in theory. It dismissed the claims, however, on a motion for summary judgment brought under Federal Rule of Civil Procedure 56 on the ground that plaintiffs had submitted insufficient evidence to raise a genuine issue of material fact as to whether the Nigerian Security Forces had launched a “widespread or systematic attack” directed against “a civilian population.” Id. at *30. In so ruling, the district court cited extensively from opinions generated by the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY), exemplifying the increased penetration of ICL norms and reasoning into U.S. jurisprudence.



In particular, the court cited extensively from Prosecutor v. Limaj (defendant Fatmir Limaj at right), before the ICTY. Prosecutor v. Limaj, Case No. ICTY-03-66-T, Judgment, paras. 180-228 (Nov. 30, 2005). Limaj involved crimes committed by the Kosovo Liberation Army (KLA) against civilians within the war in Kosovo against Serbian forces. The Prosecution had argued that the violent acts alleged in the indictment followed a pattern and were committed over a wide geographical area such that they were sufficient to constitute “a widespread or systematic attack.”

In dismissing the crimes against humanity counts, the ICTY Trial Chamber explained that “[i]t is established that the targeting of a select group of civilians—for example, the targeted killing of a number of political opponents—cannot” constitute crimes against humanity. Rather, the attack must be “directed against a civilian ‘population,’ rather than against a limited and randomly selected number of individuals.” Limaj, supra, at para. 187. Likewise, although the “relevant conduct need not amount to a military assault or forceful takeover,” there must be a ‘course of conduct’ directed against the civilian population that indicates a widespread or systematic reach.” Id. at para. 194. The Trial Chamber concluded that the attacks in question were more in the nature of acts of guerrilla warfare against a superior, conventional military force. Id. at para. 195. To the extent civilians were detained, injured, or killed, it was because they

• were deemed to be collaborating with Serbian forces or officials, id. at paras. 196, 206-8;
• were the victims of opportunistic kidnappings, id. at para. 200; or
• were collateral damage to fighting between armed combatants, id. at para. 202.
  

Taking the evidence as a whole, the ICTY Trial Chamber observed that the KLA engaged in the abduction of a limited number of ethnic Serbs (100-140), which led it to conclude that

in the context of the population of Kosovo as a whole the abductions were relatively few in number and could not be said to amount to a “widespread” occurrence for the purposes of [CAH]. * * * The evidence discloses that there was at most a systematic” attempt by the KLA to target Kosovo Albanian individuals believed to be, or suspected of, collaborating with the Serbian authorities, but no attempt to target a civilian population as such.

Id. at paras. 210-211. Targeting only those with links to the Serbian regime in diverse geographic locations did not constitute an attack against the civilian population writ large. Id. at para. 217. Thus,

it is not possible to discern from [these abductions] that the civilian population itself was the subject of an attack, or that Kosovo Albanian collaborators and perceived or suspected collaborators and other abductees were of a class or category so numerous and widespread that they themselves constituted a ‘population’ in the relevant sense.

Id. at para. 226. Indeed, although the Trial Chamber had earlier ruled (id. at paras. 212-213) that proof of a policy to attack civilians is not a formal element of crimes against humanity, it did put some stock in the fact that there was no evidence in the record—as confirmed by expert witnesses—of a KLA policy to target civilians per se. Id. at paras. 215-216, 225. One of three defendants was convicted of war crimes; the Prosecution did not appeal the CAH acquittals.

The Bowoto district court cited Limaj for the proposition that plaintiffs had to adduce evidence that established that the particular acts of abuse in question were part of a widespread or systematic attack against a civilian population. To do this, the district court looked to

1. the raw number of victims in proportion to the overall civilian population of the region and
2. the level of precision with which the attackers selected their targets.

On both fronts, the court ruled that plaintiffs’ evidence fell short. In particular, the court noted that although plaintiffs presented evidence of attacks “resulting in hundreds of deaths and thousands of injuries, over a roughly ten-year period, in a region containing roughly 14 million inhabitants,” the victims were targeted because they were oil protesters, or associated with oil protesters, and not because they were civilians per se. Id. at *30-32. The court concluded that the violence in Nigeria did not rise to the level of other conflicts in which crime against humanity have been committed, such as in Rwanda or the former Yugoslavia. Id. at *32.

Following the disappointing jury verdict, plaintiffs moved for judgment notwithstanding the verdict and for a new trial pursuant to Federal Rules of Civil Procedure 50 and 59; both were denied. See Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 21944 (N. Dist. Ca. March 4, 2009). Plaintiffs have indicated an intention to appeal these rulings to the Ninth Circuit Court of Appeals. (It is not yet clear if they will appeal the MSJ ruling). See Earthright’s press release here. Chevron’s efforts to repair relations with community are described by the company here.


The Bowoto & Limaj discussion above reveals a tension in the law over expanding the reach of the prohibition on crimes against humanity beyond situations of large-scale violence or repression. The Bowoto district court implies that not all systematized violence, even if geographically dispersed, constitutes an "attack on a civilian population" within the meaning of the definition of crimes against humanity under international law. Some level of gravity must be first reached before actions will be considered crimes against humanity. In this analysis, the gravity notion appears to reside partially in the civilian “population” element rather than in the modifiers “widespread or systematic,” which seems to undercut the importance of these concepts in defining crimes against humanity. For more on gravity as an organizing principle for international criminal law, see here and here.

Luke Cole and Environmental Justice

Luke Cole (left), a pioneer of the environmental justice movement, died in a car accident on June 6, 2009, while on sabbatical in Uganda. He was only 46, but had already accomplished so much in his career and inspired a generation of up-and-coming lawyers to bring together environmental and social justice concerns. He has long been one of my heroes, someone who had the passion, empathy, and vision to push both the environmental and civil rights/human rights movements to come together and address the disproportionate distribution of environmental goods and bads. He and the organization he founded, the San Francisco-based Center on Race, Poverty, and the Environment, have played a critical role in so many major environmental cases, including most recently a suit brought against major oil and power companies for their contribution to climate change by the village of Kivalina. (credit for photo of Center reports, below right)
Many who knew Luke Cole much better than I did have commented on the wonderful, rich human being he was. When I had the opportunity to interact with him, I was struck by his unusual warmth and modesty. Although he had accomplished so much already, he was extremely collaborative, exchanging syllabi and materials for teaching climate change. I am so saddened by the loss of this tremendous person, and so inspired by his life and contributions.
The efforts of Luke Cole and other pioneering environmental justice lawyers were the reason I went to law school; with their example as a model, I wanted to work on the confluence of environment, human rights, corporate responsibility, and development.
As I reflected on Luke Cole and the environmental justice movement this week, I was struck by the confluence between his death and the settlement in the Alien Tort Claims Act case over Ken Saro-Wiwa's execution and other human rights violations in Nigeria blogged about by Rebecca Bratspies earlier this week. Ken Saro-Wiwa was executed in December of my first year of law school, and I had the privilege of helping on the case in its early stages. Shell's press release about the settlement (over 13 years later), acknowledging the harm suffered and continuing to deny any responsibility for the human rights violations, reinforces the difference that litigation can make and the long road ahead for environmental justice. Even as this lawsuit settles, Shell and other oil companies in Nigeria continue to flare huge amounts of gas despite domestic litigation brought to stop the wasteful practice with its human consequences.
Luke Cole contributed tremendously to the understanding of environmental injustice and the development of legal mechanisms to address it. For those wishing to honor his memory and work, his family has suggested donations be made to the Center on Race, Poverty, and the Environment.

On May 30

On this day ...
... 1967, Nigerian leader Yakubu Gowon, a military officer who'd taken control following a coup, decreed for the country as whole a new, federal administration. The announcement led 3 days later to the declaration of the independent state of Biafra (flag at right) in the southeast portion of Nigeria. Civil war raged for 30 months. At the end Biafra remained part of Nigeria, but at the cost of between 1 and 3 million lives.
... 1982, Spain became the 16th member of NATO, the North Atlantic Treaty Organization. The accession of post-Franco Spain (flag below left) marked the 1st addition to the NATO treaty regime since 1955, when the Federal Republic of Germany joined. Division within Spain continued even after accession, so that the question was put to a referendum in 1986. "With almost 60 percent of the electorate participating, 52.6 percent of the voters supported Spain's continued membership in NATO, while 39.8 percent opposed it"; thus Spain to this day remains a member of the alliance.

(Prior May 30 posts are here and here.)

On May 29

On this day in ...
... 1990, Canada's House of Commons (right) passed Bill C-43, new abortion legislation, by a vote of 140 to 131. (photo credit) The bill, which continued the criminal proscription of abortion but allowed exceptions from that prohibition " as long as a doctor believes the physical or mental health of the woman is endangered," was sent to Canada's Senate for debate. There it would fail by a tie vote in 1991.
... 1999 (10 years ago today), Olusegun Obasanjo (left) was sworn in as President of Nigeria following his election, bringing an end to 15 "years of adventurism and brigandage under military rule," as The Nation put it. (photo credit) The 8-year tenure of Obasanjo, who himself had been a military ruler of Nigeria from 1976 to 1979, was marred by charges of corruption and repression. Last December Obasanjo was appointed the U.N. Special Envoy on the Great Lakes Region, tasked to aid "dialogue between the leaders of Democratic Republic of Congo and Rwanda," by Secretary-General Ban Ki-moon.

(Prior May 29 posts are here and here.)

On March 22

On this day in ...
... 2009 (today), is celebrated Mothering Sunday by many in in Britain, Ireland, and Nigeria. The day was founded as a religious holiday. "Traditionally, it was a day when children, mainly daughters, who had gone to work as domestic servants were given a day off to visit their mother and family," according to the BBC. "Today it is a day when children give presents, flowers, and home-made cards to their mothers."
... 1882, Congress outlawed polygamy by passing the Edmunds Act. Just 1 day after the 3-year anniversary of this date, rejecting a challenge "brought by certain Mormon citizens of Utah," the Supreme Court held that the ban on plural marriage was constitutional.

(Prior March 22 posts are here and here.)

Chevron wins 1st jury trial in case invoking Alien Tort Statute against an oil company

It took jurors only a couple of days to decide that Chevron Corporation was not liable for the deaths of two protesters and injuries as well as mistreatment of others in the second jury trial involving a U.S. corporation brought under the Alien Tort Statute, the U.S. law about which IntLawGrrls frequently have posted.
As described further on the website of EarthRights International and in a prior post here, the case, Bowoto v. Chevron, involved claims for summary execution, torture, cruel, inhuman and degrading treatment, and arbitrary detention. Plaintiffs charged Chevron with complicity in brutal attacks against demonstrators in Nigeria who protested the oil company's environmental destruction and economic disruption in their communities. According to the plaintiffs, in May 1998, members of the Ilaje community staged a peaceful protest at Chevron's Parabe oil platform off the Nigerian coast. Chevron called in the Nigerian military and "kill and go" police, flew them to the platform on Chevron-contracted helicopters, and supervised their attack against the protesters.
Chevron told the jury a far different story. In its version, the demonstrators were holding workers on the platform hostage, and workers were afraid for their lives. After negotiations broke down over the sums needed to pay for the demonstrators’ expenses, Chevron maintained, it had no choice but to protect its workers by calling in local law enforcement. The loss of lives was unfortunate, Chevron allowed, but added that it was a consequence of the protesters themselves choosing to confront the security forces who showed up. In other words, they ran into the bullets, not the other way around.
Why did the jury apparently buy Chevron’s story rather than the plaintiffs’?
Hard to tell. It’s not clear whether jurors thought Chevron acted reasonably in the face of a threat, or whether they thought whatever happened was not the fault of the U.S.-based parent company.
Assuming the former, one possible explanation is that the contextual and cultural gulfs between the plaintiffs, most of whom testified through an interpreter, and the mostly white, mostly male jury were just too great. How do you get a U.S. jury to understand that under Nigeria’s Abacha dictatorship, in the conflict-ridden Niger delta, calling in the “kill and go” is not the equivalent of calling 911? Chevron very successfully managed to make the plaintiffs seem very “other” – and therefore dangerous – while encouraging the jury to identify with the (white, male) oil workers.
So what does this mean for future corporate ATS cases? Despite the disappointing outcome, there are couple of bright spots:
► The case turned on specific facts and issues of tort law, but the court accepted that if proven, the allegations would constitute violations of international law for which Chevron could be held liable. As the issues of international law become more settled, the ten years of pre-trial motions in this case might be whittled down somewhat in future cases.
► Just hauling the oil giant into court is already something of a victory: the publicity may force the company to change the way it deals with security forces, as it promised to do by signing onto the Voluntary Principles on Security and Human Rights way back in 2000.
► And in any case, the suits go on: Chevron will be in California state court next year on these same charges. It also faces a lawsuit in Ecuador over environmental contamination. Shell goes to trial in February in New York over its activities in the Niger delta.
So in the longer run, with respect to how effective these cases are in changing corporate behavior, the jury’s still out.

(credit for October 2008 photo of San Francisco demonstration against Chevron)

Sex and Death

On Friday, Amnesty International reported the stoning death of a 13 year-old-girl in Somalia (map credit here). According to Amnesty, a group of approximately 50 men stoned Aisha Ibrahim Duhulow to death in a stadium with about 1000 spectators. Duhulow had apparently been raped by three men and reported the rape to the armed opposition group in Kismayo. Rather than investigate the rape, members of the al-Shabab militia accused Duhulow of adultery, detained her, and executed her.
In 2003, the international women’s human rights community mobilized to stop the stoning death of a Nigerian woman, Amina Lawal, who was accused of adultery under Islamic law. Lawal was convicted of adultery in March 2002, but the Katsina State Shariah Court of Appeals overturned the conviction on September 26, 2003.
Although the details vary, these stories represent modern, violent community-based efforts to control women’s sexuality. And the stories are replicated all over the world. From the domestic violence victim in the United States whose partner beats her whenever she speaks to another man to the rape victim accused of adultery in Somalia, the narrative is similar. Women’s sexuality is seen as a threat not only to morality but, more importantly, to male power as well.
The international movement to combat violence against women offers some hope. In only a decade and a half, the international movement to end gender-based violence has gained momentum and enjoyed some limited success. But to have widespread impact, the movement will need to confront deeply held beliefs – all around the world – that men may, indeed should, control women’s sexuality. Despite the early successes of the anti-violence movement, the pace of real cultural reform is painstakingly slow, and Duhulow’s story serves as a heart wrenching reminder of the task ahead.

Complicity & the Alien Tort Statute

Many thanks to IntLawGrrls for inviting me to say a few words about my forthcoming article, Conceptualizing Complicity in Alien Tort Cases, in this guest post.
As many of you know, corporate liability for violations of international law under the Alien Tort Statute (ATS) remains hotly contested as a matter of domestic law and policy. (Prior IntLawGrrls posts, on the statute and on many of the cases I discuss, may be found here here.)
U.S. State Department Legal Adviser John B. Bellinger III recently lamented the failure of the U.S. Supreme Court to muster a quorum to consider the cert petition in Khulumani v. Barclay National Bank, an ATS case alleging corporate wrongdoing in conjunction with South African apartheid. Other pending corporate ATS cases include Presbyterian Church of Sudan v. Talisman Energy, which is awaiting oral argument before the Second Circuit, and Bowoto v. Chevron, which is about to be tried to a jury in federal court in San Francisco (voir dire is scheduled for today). Although legal issues in Bowoto may resurface on appeal, the factual dispute revolves around whether Chevron assisted the Nigerian government in using lethal force to remove peaceful protesters from one of Chevron’s offshore platforms, or whether Chevron legitimately sought help from Nigerian forces to displace a violent band of hostage-takers from the platform. (credit for photo of Chevron facility in Nigeria)
In the absence of Supreme Court guidance, lower courts have failed to agree on a consistent doctrinal approach to liability in corporate ATS cases. My article clarifies an important, and disputed, puzzle in these cases: whether U.S. law or international law governs the standard for aiding and abetting liability under the ATS. I conclude that international law governs aiding and abetting liability, and that the prevailing international law standard holds accomplices liable for knowingly providing assistance that has a substantial effect on the principal’s commission of a violation. I respectfully disagree with Bellinger, who suggested in his remarks that the Supreme Court’s 2004 decision in Sosa vs. Alvarez-Machain, which did not involve corporate liability, should be interpreted to bar virtually all of these cases. Courts may certainly invoke Sosa to support a finding of lack of subject matter jurisdiction in cases where plaintiffs have not alleged a sufficiently well established violation of international law, just as they may invoke a range of abstention doctrines to decline to exercise jurisdiction in appropriate circumstances. As it stands, however, courts have failed sufficiently to differentiate these aspects of their analyses, resulting in confusion over the proper application of the ATS and the scope of liability for aiding and abetting international law violations.
On a more reflective note:
We as academics may justifiably wonder if courts actually read what we have to say about doctrinal questions. (I must confess that, when I clerked for the Canadian Supreme Court, I relied almost entirely on case law and rarely, if ever, took a detour into scholarly literature to inform my legal analyses.) On the question of accomplice liability, however, I would respectfully suggest that no court opinion has yet articulated what I believe to be the most accurate and compelling analysis. My article presents this analysis, which I hope other scholars and, ultimately, judges, will find helpful and persuasive.

Corruption, Conflict and Oil

The United States has apparently agreed to assist Nigeria in criminalizing a practice known as “oil bunkering.” This assistance could create opportunities to interrupt the flow of funds that fuel rampant violence in the Niger Delta, where large amounts of oil are siphoned-off and sold illegally each day through well-established and corrupt channels. As part of this effort, Nigeria was recently charged with developing a chemical “tagging” mechanism which would identify oil sold by way of legitimate channels, such that all illicit oil – bunkered oil – would be readily identifiable (by the absence of the chemical tag) as having entered the commerce stream through illicit means. (credit for photo of Nigerian oil pipes; map credit)

While the prospects for such a tagging mechanism may seem extremely expensive and perhaps even far flung, the high costs resulting from current oil bunkering, corruption and violence funded by blood-oil, make even the high cost of developing such a chemical tag potentially very attractive. More to the point, oil companies already have tagging mechanisms that they use for other purposes. Also, the relative success of a similar tagging mechanism for blood diamonds, which formed part of the Kimberley Process Certification Scheme, provides ample optimism for the possibility of stemming the flow of blood oil.

Nigeria may thus serve as a test case for addressing the close ties between oil, corruption and conflict prevalent in other areas as well.

(Cross-posted at The Conglomerate, the business/law/economics/society site where I am currently guest blogging. And see IntLawGrrls' look back at oil history below.)

Not so pacific settlement of dispute

In keeping with the judgment of the International Court of Justice in Land and Maritime Boundary between Cameroon and Nigeria (2002), which enforced a Germany-Britain treaty dating to the colonial era, Nigeria has given back to Cameroon "a zone rich in fish and offshore oil," as Le Monde describes it.
One U.N. official predicted that Thursday's retrocession would "serve as a model elsewhere in Africa where borders are contested," and U.N. Secretary-General Ban Ki-moon applauded it as "a victory for respect for the law."
But not all in the aforementioned zone -- the Bakassi peninsula -- consider this pacific settlement of a dispute a victory. As many as 40,000 inhabitants now face the choice of moving to Nigeria or adopting Cameroonian nationality. Nigerian rebel groups continue militant opposition to the move, and as many as 50 persons on both sides of the dispute have been killed since late last year. Le Monde's report concludes:

On July 31, a judge of the Nigerian federal high court at Abuja, having received a petition from inhabitants of the peninsula, ruled in favor of freezing the transfer of sovereignty. But the authorities did not implement this judgment. According to certain sources, the tension in Bakassi is tied to rivalries not only over oil, but also over arms traffic.

Cession may not have closed the case after all.

On June 30

On this day in ...
... 1864, President Abraham Lincoln signed the Yosemite Land Grant, which "provided California with 39,000 acres of the Yosemite Valley and the nearby Mariposa Big Tree Grove 'upon the express conditions that the premises shall be held for public use, resort, and recreation.'" The area (above) would become a national park 1890. (photo credit)
... 1969, Nigeria halted flights of food to Biafra, a southern, breakaway state at war with the federal government. The International Committee of the Red Cross was forbidden from continuing to coordinate aid. International pressure would persuade Nigeria to let airlifts resume, albeit under the country's rules. A half-year later rebels were defeated. The BBC reports that "it is estimated at least 500,000 -- possibly millions -- of people died of starvation and disease as a result of the war in Biafra."
(map credit)