US court okays Unocal rights suit
By Jim Lobe

WASHINGTON - Oil giant Unocal can be sued for forced labor, rape, and murder committed by Myanmese soldiers guarding a major gas-pipeline project completed three years ago, a US federal appeals court has ruled.

The case could mean that US-based corporations will have to face the music for rights abuses committed overseas. Cases are pending, for example, against Royal Dutch Shell for alleged abuses committed by the Nigerian Army against the Ogoni people in the oil-rich Niger Delta, against Texaco by indigenous people in Ecuador whose lands have been largely destroyed by oil leaks and toxic waste, and against ExxonMobil by victims of abuses committed by Indonesian security forces in Aceh province.

The George W Bush administration is trying to get the ExxonMobil case dismissed.

Wednesday's decision by the Ninth Circuit Court of Appeals overturned a ruling by a federal judge two years ago that the victims of abuses committed by the military government in Myanmar could not sue the California-based company although they produced evidence showing that Unocal knew about and benefited directly from the troops' conduct.

District Court Judge Stanley Lew had issued a summary judgment against the plaintiffs, insisting that in order for the trial to proceed, they would have to provide evidence that Unocal either directly participated in the abuses or exerted control over the army when the abuses occurred. But the three-judge appeals court ruled that Lew had applied too strict a legal standard in the case. "Because Unocal knew the acts of violence would probably be committed, it became liable as an aider and abettor when such acts of violence - specifically, murder and rape - were in fact committed," said the court.

It then sent the case back to the district court with instructions to let the matter proceed to trial.

Human-rights lawyers who brought the case said the court's ruling marks a major milestone in making corporations accountable for human-rights abuses tied to their operations or activities abroad.

"In recognizing that corporations that aid and abet egregious human-rights abuses can be held accountable," said Richard Herz, a lawyer with EarthRights International and co-counsel in the suit, "the Ninth Circuit has affirmed that US corporations cannot violate international human rights with impunity."

The lawyers also pointed out that two of the judges explicitly cited recent rulings by the international war-crimes tribunals in Yugoslavia and Rwanda regarding the liability of individuals who may not directly participate in commission of the abuses. Aiding and abetting liability may be imposed for "knowing practical assistance or encouragement, which has a substantial effect on perpetration of the crime", the judges wrote.

Given the stature of the San Francisco-based Ninth Circuit, the ruling is certain to influence the views of other courts that currently are hearing similar cases against US corporations. The court, whose jurisdiction covers much of the western United States, can be overruled only by the US Supreme Court.

The Unocal case was originally filed by EarthRights and the Center for Constitutional Rights (CCR) in 1996 on behalf of 15 unnamed Myanmese plaintiffs, mostly members of the Karen and Mon ethnic minorities living in or near the route of the US$1.2 billion Yadana pipeline that carries gas from offshore fields in the Andaman Sea through Myanmar to Thailand.

Construction by a consortium consisting of Unocal, France's Total, and the Myanmese state oil company began in 1992 and was completed in 1999. Myanmar's military regime forcibly relocated villages, drafted villagers into forced labor, and committed a range of other abuses, including murder, torture and rape, during the construction phase of the project, according to international human-rights groups such as Amnesty International and Human Rights Watch.

The military junta achieved notoriety for a brutal crackdown on a pro-democracy movement in the late 1980s and then for ignoring the results of an election swept by the opposition in 1990.

The plaintiffs sued under a 213-year-old US law, the Alien Tort Claims Act (ATCA), that permits non-citizens to sue foreign and domestic individuals or companies in the United States for abuses committed abroad. The law, which was enacted primarily against pirates on the high seas, underwent a renaissance in the 1980s when it was used successfully by victims of abuses committed by foreign governments and militaries overseas against individual defendants served with notice while living or visiting in the United States.

Last month, two former senior military officials in the Salvadoran army, who had retired to the United States in the early 1990s, were successfully sued by three alleged victims for a total of more than $50 million.

The Unocal case was the first to use ATCA to go after a corporation for alleged abuses committed abroad. Lawyers argued that Unocal should be held liable for abuses committed by the army, which, according to their legal theory, acted as paid agents of the company. They contended that, because Unocal hired military units to provide security for the project and was generally aware of its abusive tactics, the company should be made to pay for the harm done.

In presenting their case, the lawyers offered internal Unocal memoranda and depositions as evidence to show that the company was aware of the abuses but never tried to sever its relationship with the army.

For its part, Unocal has strongly denied that it knew about or sanctioned abuses committed by the military in carrying out the project. When it did find out, it took remedial action, according to officials.

"We've never 'aided or abetted' anyone in the commission of human rights violations," Unocal spokesman Barry Lane said on Thursday. "If this case goes to trial, we will defend our reputation vigorously and expect to be fully vindicated," he added.

Lane stressed that the appeals court's 82-page opinion dealt only with the question of whether the plaintiffs had presented sufficient evidence to permit the case to go forward.

The court also rejected any possible claim by Unocal that the lawsuit should be barred because it would interfere with US foreign policy toward Myanmar.

The State Department last month asked a federal judge to dismiss the ExxonMobil case brought by the Acehnese plaintiffs on the grounds that trying the case could set back Washington's "war on terrorism" by risking the cooperation of the Indonesian military and discouraging US corporate investment in the country's battered economy.

The judge in that case has yet to rule on the State Department's request, which caused outrage among human-rights groups here.

(Inter Press Service)