|Villagers vs oil giant: Ashcroft to the
By Jim Lobe
- In a move that has provoked outrage from human-rights
groups here, US Attorney General John Ashcroft has asked
a federal appeals court in effect to nullify a
214-year-old law that has provided foreign victims of
serious abuses access to US courts for
Ashcroft's Justice Department has filed
a "friend of the court" (amicus curiae) on behalf
of California-based oil giant Unocal in a civil case
brought by Myanmese villagers who claimed that the
company was responsible for serious abuses committed by
army troops who provided security for a company project.
But the department's brief was not limited to
defending the company against the plaintiffs. Instead,
the document, which was submitted last week to the Ninth
Circuit Court of Appeals in California, asked the court
to reinterpret the 1789 Alien Tort Claims Act (ATCA) in
a way that would deny victims the right to sue in US
courts for abuses committed overseas.
"This is a
craven attempt to protect human-rights abusers at the
expense of victims," said Kenneth Roth, executive
director of New York-based Human Rights Watch (HRW).
"The Bush administration is trying to overturn a
long-standing judicial precedent that has been very
important in the protection of human rights."
Other rights activists agreed. "The brief is a
broadside attack designed to wipe the law off the
books," said Elisa Massimino, director of the Washington
office of the Lawyers Committee for Human Rights (LCHR),
while Terry Collingsworth, director of the International
Labor Rights Fund (ILRF) and one of the lead lawyers in
the Myanmar case, called the move "shocking".
"They're not just saying a bunch of Burmese
peasants can't sue a US oil company," said Tom
Malinowski, director of HRW's Washington office.
"They're saying Holocaust survivors were wrong to have
sued German companies for enslavement during World War
II, and that victims of genocide in Bosnia were wrong to
try [Serb leader Radavan] Karadzic in US courts. I don't
think this administration wants to be seen as denying
victims rights in these cases."
ATCA, which was
enacted by the first US Congress as a tool for piracy on
the high seas, permits non-citizens to sue foreign and
domestic individuals or companies in the United States
for abuses "committed in violation of the law of nations
or a treaty of the United States".
the act has been used successfully by victims of abuses
committed by foreign governments and militaries overseas
against individual defendants who were served with
notice while living or visiting in the United States.
The first case was brought by the father and
sister of Joel Filartiga, a 17-year-old Paraguayan who
was kidnapped and tortured to death by a Paraguayan
police officer who subsequently came to the United
States. In that case, another appeals court ruled that
ATCA permitted victims to pursue claims based on
violations of international human-rights law.
Subsequent cases have been brought against
national leaders, such as former Philippine president
Ferdinand Marcos, and senior army officers from
Guatemala, Indonesia, Argentina, Ethiopia and El
Salvador, among other countries. While damages have been
awarded in almost all those cases, they have rarely been
collected, primarily because defendants fled the United
States once they received legal notice.
began bringing cases against US and foreign corporations
- usually involving, as in the Unocal case, alleged
abuses committed by foreign armies or police that
provided security for the companies - under ATCA in
1993. About 25 such cases have since been filed,
although most of them have been dismissed by the
The most successful have been brought by
survivors of the Nazi Holocaust against foreign
companies and banks, which rejected their efforts at
recovering their money or insurance claims after World
War II. While the case was never fully tried, it helped
induce Swiss banks to negotiate settlements worth more
than US$1 billion.
The Unocal case was originally
filed in 1996. Last September, the Ninth Circuit Court
overturned the dismissal of a trial-court judge and
ruled that the company could be sued for such abuses as
forced labor, rape and murder committed by Myanmese
soldiers guarding the Yadana gas pipeline, if plaintiffs
produced evidence showing that the company knew about
and benefited directly from the troops' conduct.
In its brief, the Justice Department was far
less concerned about the specific case than about all
litigation under ATCA, which, it said, "has been
commandeered and transformed into a font of causes of
action permitting aliens to bring human rights claims in
United States courts, even when the disputes are wholly
between foreign nationals and when the alleged injuries
occurred in a foreign country, often with no connection
whatsoever with the United States".
said that ATCA could not be used as a basis to file
civil cases and that victims should sue under other
laws; that the "law of nations" covered by the act did
not include international human-rights treaties; and
that abuses committed outside the United States should
not be covered by the law.
"Although [ATCA] is
somewhat of a historical relic today, that is no basis
for transforming it into an untethered grant of
authority to the courts to establish and enforce
(through money damage actions) precepts of international
law regarding disputes arising in foreign countries,"
the brief said.
Moreover, it warned, the use of
the act "bears serious implications for our current war
against terrorism, and permits [ATCA] claims to be
easily asserted against our allies in that war". In that
respect, it "raises significant potential for serious
interference with important foreign-policy interests".
But human-rights activists pointed out that if
US foreign-policy interests were at risk, the State
Department always has the option of intervening in an
ATCA case - as it did last summer when it asked a judge
to dismiss a case brought by plaintiffs from the
Indonesian province of Aceh against oil giant
Indeed, the State Department was
explicitly asked to comment on the foreign-policy
implications of the Myanmar case and reportedly prepared
a letter that said it had no problems with the action
proceeding. But the Justice Department, which represents
the rest of the government, failed to deliver the letter
and instead filed its own brief, which makes no
reference to a State Department position.
don't think this has anything to do with the war on
terror," said Malinowski. "I think this is motivated by
a very hardcore ideological resistance within the
Justice Department to the whole concept of international
law being enforced. The notion that international norms
are enforceable by anyone is repugnant to some in the
Collingsworth agreed that
the move contradicted the avowed aim of the
administration of President George W Bush to end
terrorism. "Particularly today, with all this talk of
the war on terror, to remove one of the few tools we
have to address human-rights violations is the epitome
of hypocrisy," he said, adding that he thought the Ninth
Circuit Court would reject Ashcroft's arguments. "The
Department of Justice filed the almost identical brief
in the Marcos case in the late 1980s, and it was
(Inter Press Service)