Ashcroft's Justice, Burma's Crimes, and Bork's Revenge

By JOANNE MARINER

Monday, May. 26, 2003

Given the chance to protect corporate interests, the Bush administration is predictably happy to take it. Ditto for the prospect of undermining international justice.

But it's not every day that the opportunity arises to accomplish both objectives at once. It takes a case like John Doe I v. Unocal Corp., a civil damages action currently pending in U.S. federal court.

In a brief recently filed in the Unocal case, the administration - in the person of Attorney General John Ashcroft - sets out to defend an oil company, reaffirm the president's untrammeled power over foreign policy, and eviscerate a law that has provided a modicum of justice to victims of rights abuses from around the world.

All that, and more. In an added plus, the brief also gives the administration a vehicle for highlighting the wit and wisdom of Robert Bork. Bork, the right wing's original judicial martyr, is very much in the thoughts of an administration that is currently fighting bruising confirmation battles in Congress.

Forced Labor, Murder, Rape and Torture

The plaintiffs in the Unocal case are Burmese villagers who claim that they were subjected to forced labor, murder, rape, and torture during the construction of a gas pipeline through their country. Soldiers allegedly committed these abuses while providing security and other services for the pipeline project.

Jane Doe I, one of the plaintiffs in the case, testified that when her husband tried to escape the forced labor program, he was shot at by soldiers, and that, in retaliation for his attempted escape, she and her baby were thrown into a fire. Her child died and she was badly injured.

Other villagers described the summary execution of people who refused to work, or who became too weak to work effectively.

There is little doubt that such crimes occurred. They have been exhaustively documented by Human Rights Watch, Amnesty International, and a host of other groups. In 1995, when pipeline construction was beginning, the U.N. General Assembly passed a resolution urging Burma (also known as Myanmar) to put a stop to its practices of torture, forced labor and summary executions. Even the Justice Department, whose "friend of the court" brief was filed this past May 8, was willing to acknowledge the "blatant human rights abuses" committed by Burma's military government.

The only serious factual issue in the case is the extent of Unocal's responsibility for the crimes. The plaintiffs claim that Unocal aided and abetted the Burmese military in its campaign of abuse, an assertion that Unocal vigorously denies.

"Practical Assistance"

The Unocal case is now pending before the U.S. Court of Appeals for the Ninth Circuit. The lower court that first heard the case dismissed it, finding insufficient proof of Unocal's involvement in the abuses.

The appeal was heard by a panel of Ninth Circuit judges that ruled unanimously to reverse the dismissal. The court found that the evidence presented by the villagers supported the conclusion "that Unocal gave practical assistance to the Myanmar Military in subjecting Plaintiffs to forced labor."

As the court described it, this practical assistance "took the form of hiring the Myanmar Military to provide security and build infrastructure along the pipeline route in exchange for money or food." The assistance "also took the form of using photos, surveys, and maps in daily meetings to show the Myanmar Military where to provide security and build infrastructure."

Moreover, the court found, the evidence supported the conclusion "that Unocal gave 'encouragement' to the Myanmar Military in subjecting Plaintiffs to forced labor."

Besides ruling for the plaintiffs on the forced labor issue, the court also reversed the district court's dismissal of the murder and rape claims, finding sufficient evidence of Unocal's complicity in those abuses. But the panel decision, issued in September 2002, was vacated in February, when the Ninth Circuit decided to rehear the case en banc (in other words, sitting as a panel of eleven, rather than three, judges).

The Alien Tort Claims Act

Except for a token acknowledgment of the Burmese government's human rights abuses, the Justice Department's brief ignores the facts of the case. Rather than attempting to defend Burma and Unocal on the factual record, it instead aims to destroy the legal basis of the villagers' suit.

In its brief, the Justice Department embarks on a wholesale attack on the Alien Tort Claims Act (ATCA), the law underlying the villagers' claims. For over twenty years, since the landmark 1980 case of Filartiga v. Pena-Irala, courts have ruled that the ATCA permits victims of serious violations of international law abroad to seek civil damages in U.S. courts against perpetrators found in the United States.

The Justice Department's proposed interpretation of the law would radically narrow its scope. The law would be changed so dramatically, in fact, that as the Department itself acknowledges, it would be rendered "superfluous."

If the Ninth Circuit adopts this approach, victims of human rights abuses abroad will no longer be able to rely on the U.S. courts for any hope of justice. And no more will multinational corporations, enticed by other countries' lower wages, laxer worker protections - and, possibly, ineffective and corrupt judicial systems - have to worry that abuses they commit in foreign countries may come back to U.S. courts to haunt them.

The Justice Department's current view of the ATCA represents a radical break from past practice. No previous administration has ever challenged the legitimacy of ATCA suits against gross human rights abusers.

There is, however, some precedent for the Department's restrictive view of the law. And its source - then-judge Robert Bork - is telling. In 1984, back when he was a member of the U.S. Court of Appeals for the D.C. Circuit, Bork wrote a concurring opinion in the case of Tel-Oren v. Libyan Arab Republic that vigorously challenged the use of the ATCA in human rights suits.

The Justice Department's brief is littered with approving references and quotes from Bork's Tel-Oren concurrence. The Department clearly hopes, with this case, to establish Bork's views as the authoritative position of the Ninth Circuit.

To do so would, of course, be an important step toward convincing the Supreme Court, which has yet to rule on the ATCA's use in human rights cases, to follow suit.

From the ATCA to the ICC

The Justice Department's offensive against the ATCA may be a testament to the law's growing relevance. It was only in 1993 that plaintiffs began suing multinational companies under the ATCA for alleged complicity in human rights violations abroad.

Since that time, there have been at least twenty-five such cases. Although the courts have dismissed most of them, and have not rendered any judgments against companies, the ATCA has clear potential as a tool for policing corporate perpetrators of human rights abuse. Indeed, the ongoing cases have already set alarm bells ringing in the corporate world.

Yet there is another obvious basis for the Justice Department's effort to sabotage the law. Equal to this administration's solicitude for corporate welfare is its loathing of international justice.

It may seem like quite a leap from the ATCA to the International Criminal Court (ICC). Yet the underlying concepts - that one country's gross human rights abuses might be of legitimate concern to an outside forum, and that international human rights standards might be legally enforceable, rather than merely hortatory - are the same.

With the ATCA and the ICC, the Bush administration is attempting to protect human rights abusers at the expense of their victims. Only if justice and accountability are ignored does this effort make sense.


Joanne Mariner is deputy director of the Americas division of Human Rights Watch. The views expressed in her columns are her own, and do not necessarily reflect those of Human Rights Watch.

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