De-Globalizing Justice: The Corporate Campaign to Strip Foreign Victims of Corporate-Induced Human Rights Violations of the Right to Sue in U.S. Courts. (the Corporate Drive for Legal Immunity)
Bruno, Kenny, Multinational Monitor
IN DECEMBER 1994, JANE DOE I, a young mother whose identity must remain secret for her own safety, was with her 2-month old baby in a small village in the Tenasserim region in southern Burma. While she was holding her baby near a cooking fire, Burmese soldiers came to her house. They were looking for her husband, who had been forced by the military to work on a gas pipeline project, and who had fled before his forced labor period was completed. The soldiers were also angry that Jane Doe I had not moved to the prescribed area after the forced relocation of her village.
During the visit, the soldiers kicked Jane Doe I so hard she fell into the fire with her baby in her arms. Her head hit some rocks ringing the fire, which knocked her unconscious. A bystander picked up the baby, whose head had been burned badly in the fire. When she came to, Jane Doe tried for days to get medical attention for her baby, but it was too late. The baby later died from her wounds.
Jane Doe I is now a refugee from the Burmese regime, and one of 15 plaintiffs in a landmark lawsuit against Unocal, the California-based oil company whose project allegedly brought the brutal Burmese military to Jane Doe I's village. The lawsuit claims that the soldiers who killed Jane Doe I's baby were working on behalf of Unocal's natural gas pipeline project. Unocal, the plaintiffs allege, utilized the military despite its well-known history of human rights violations, including use of forced labor. With no legitimate judicial system in Burma, the plaintiffs believe Unocal should be held liable in the United States for the predictable actions of its notorious partner.
But the law that gives Jane Doe I a chance for a modicum of justice is under attack.
A CHANCE FOR A MODICUM OF JUSTICE
The first U.S. Congress passed the Alien Tort Claims Act (ATCA) in 1789, in order to allow cases involving violations of the law of nations, or international law, to be heard in federal court.
In 1979, the first modern ATCA case, Filartiga v. Pena-Irala, was filed against a Paraguayan police inspector living in the United States. Pena-Irala was accused of torturing and killing the son of a Paraguayan dissident in Paraguay. Relatives of the victim won a $10 million judgment, which was never paid.
In 1992, Congress passed the Torture Victims Protection Act, which confirmed the legislative branch's support for using U.S. civil law, including ATCA, against perpetrators of torture and extra-judicial killing, even if those violations took place outside the United States.
Since then, ATCA has been used to bring claims of torture, murder and other internationally recognized human rights violations against government officials, including Ferdinand Marcos of the Philippines and Radovan Karadzic of Serbia.
More recently, victims have filed ATCA suits against corporations they allege have been complicit in egregious human rights abuses. The case that has proceeded the furthest is the lawsuit against Unocal, filed in 1996, with Jane Doe I as one of the plaintiffs.
In September 2002, a three-judge federal appeals court panel ruled that the case could proceed to trial, because the plaintiffs had presented evidence that Unocal knowingly provided substantial assistance to the military in its commission of forced labor, murder and rape. The court held that Unocal could be held liable under international aiding and abetting standards that date back to the Nuremberg Tribunals. The full appeals court of the Ninth Circuit recently decided to re-hear the case.
Approximately two dozen other ATCA cases alleging corporate complicity in human rights violations have been filed. None have gone to trial. Several have been thrown out of court for failure to adequately allege a violation of international law or because the courts believed that an adequate forum existed in the nation in which the abuses occurred. …