Activists and survivors of the 1984 Bhopal gas disaster demonstrate. (STRDEL/AFP/Getty Images)

Since we last told you about Dow Chemical’s controversial Olympic sponsorship, things seem to have only gotten worse for Dow Chemical – from a public relations perspective anyway. Along with Dow Chemical’s horribly insensitive comments, the increased media attention has only revealed additional ethically troubling business practices.

The International Olympic Committee and games’ organizers continue (for now) solidly and uncritically back Dow as a sponsor, despite harsh criticism from Amnesty and others. But if Dow Chemical was hoping that it might benefit from the benevolent glow of the Olympic spirit of international goodwill, the past few weeks have not been kind.

For those needing some background, here it is. In 2001, Dow Chemical acquired Union Carbide (UCC), a chemical company that ran the pesticide plant that leaked over 40 tons of methyl isocyanate gas into the city of Bhopal, India in 1984. Over 20,000 people have been killed by the disaster and today over 100,000 suffer debilitating health problems.

Dow Chemical and Union Carbide have failed to adequately compensate victims’ families or affected survivors, to clean up the toxic site, or to appear in Indian courts. Dow Chemical’s CEO Andrew Liveris maintains that any claim that it might have any responsibilities to Bhopal’s survivors is “beyond belief”. Understandably, many Indians and activists are not happy with Dow Chemical.

In recent weeks new revelations have come to light. In mid-February, it was discovered that Dow Chemical knowingly violated a ban on the sale of Union Carbide products in India by selling millions of dollars of products through a web of intermediaries. Not only does this demonstrate Dow Chemical’s willingness to violate Indian law, it also undermines the company’s legal claim that it is a separate entity from Union Carbide and therefore not responsible in any way for remedying the situation in Bhopal.

By the end of February, Wikileaks had released emails between Dow Chemical and Texas-based private intelligence firm Stratfor. These revealed that Dow Chemical had paid to have Bhopal activists closely monitored for years, demonstrating an ongoing awareness and concern about the damage Bhopal continued to do to Dow Chemical’s reputation. Makes you wonder why Dow Chemical spent its money spying on activists instead of actually addressing the issues they have been raising for decades.

And then there was news that India will be partially boycotting the London Games, refusing to send an official delegation to the opening or closing ceremonies. Symbolic yes, but an embarrassment nonetheless for the London organizers and for Dow Chemical.

More athletes have become involved in the campaign against Dow Chemical and it remains important to make your voice heard. Please take action and let the US Olympic Committee know that this is not just an Indian issue, but a human rights issue, and that Dow Chemical’s sponsorship be more critically considered.

To learn more and help raise awareness about Bhopal, consider attending or hosting a screening of Bhopali, a new documentary about the disaster.

James Mutti, India Country Specialist for Amnesty International USA, contributed to this post

Members of the Ogoni community outside of the Supreme Court, February 28, 2012. Esther Kiobel, center.

Esther Kiobel is a person.

The bright sunlight that washed the steps of the US Supreme Court on Tuesday did not compete with her radiance, the resolve of a widow, a survivor. Outside the court, her eyes searched unquestionably and steadfastly for justice.

In January 1995, when she visited her husband Barinem in a Nigerian prison to bring him some food, she was stripped, beaten and thrown into a cell herself. In November that year, Barinem was executed alongside eight other activists from the Ogoni region of Nigeria, provoking widespread international condemnation of the country’s military rulers.

To the scores of scholars, students, activists, business groups and journalists who have been monitoring, reporting, opining on the legal technicalities of the case Esther Kiobel v. Royal Dutch Shell Petroleum, “Kiobel” has become shorthand for the question of whether corporations may be held civilly liable for international human rights violations under the US Alien Tort Statute (ATS). More generally, Kiobel has become shorthand for the notion of corporate accountability.

The case has become the stuff of which law students camp out overnight on the courthouse plaza to catch a glimpse. And Tuesday morning, by 9 am, the line to get a chance for a seat to hear noted lawyers in a battle between Ms. Kiobel and the 11 other Nigerian plaintiffs and one of the world’s largest oil companies spilled out onto the Washington, DC sidewalk.

In that snakelike cue that wrapped around the imposing, pristine courthouse, four Ogoni men stood at the end, behind hundreds of overwhelmingly white young professional types. The Ogoni men had no chance of getting in. The Court must do better than to leave them behind also in its deliberations.

But it was easy to get lost in those deliberations, even for the ones fortunate enough to make it inside the packed chambers.

The ATS is a statute almost short enough to fit in a tweet. It reads, simply:

The district courts shall have original jurisdiction of 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.

Those 180 characters, though, have stirred up quite a ruckus.

The judicial throw-down Tuesday centered, for the most part, on one question: is corporate liability for violations of international law a matter of substantive international law itself, or a matter of how the US decides to provide remedies, domestically, for violations of international norms?

There is good cause for the court to conclude that the ATS is a remedial enforcement vehicle, providing jurisdiction over actions, and not dictating specific forms or classes of actors – a position supported by the US government, which weighed in in favor of the Nigerian petitioners.

The ATS is unique in its provision of a specific domestic channel for legal remedy for internationally established harms. But being unique does not make it wrong. The acts the ATS covers are the most egregious conduct known to us — torture, cruel, inhuman, or degrading treatment, genocide, war crimes, crimes against humanity and summary execution among them. They deserve special treatment. And, in fact, many states find ways to provide remedy for these wrongs. It’s what they’re supposed to do.

The statute was established in the late 1700s when assaults on ambassadors and piracy were amongst the pressing international law violations for a young new member of the community of nations to contend with. Today, the conducting, supporting, aiding, abetting, providing substantial assistance to or benefiting from extrajudicial killings, torture, and other grave acts as those alleged in Kiobel and other ATS suits at a minimum rises to the level of yesterday’s ambassadorial assault.

In an open letter to Shell published Tuesday, Nigerian, UK and US groups and individuals reminded us of the slew of attacks on the people and environment in the Niger Delta region, which they asserted that Shell has exacerbated, in part via routine payments to armed militants. The atrocities committed included the destruction of the Rumuekpe town between 2005 and 2008 and the deaths of 60 people.

During oral arguments on Tuesday, Justice Samuel Alito painted Shell and its activities in the Niger Delta as too remote for a US court to adjudicate. But, Shell is not quite so removed from the US.

Though legally anchored in the United Kingdom and the Netherlands, Shell’s US subsidiary is one of its largest, with approximately 22,000 Shell employees in the US. Including its consolidated holdings and share in equity companies, Shell is one of America’s largest oil and natural gas producers and marketers, gasoline marketers and petrochemical manufacturers. It has approximately 25,000 gas stations in the US, Shell’s most visible public presence. And it has a large base of US shareholders.

To exclude such a defendant from responsibility under the ATS would foreclose one of the few paths for redress for corporate involvement in gross violations of human rights in order to protect one of the richest corporate persons in the world.

It denies the collective power, impact and influence that a corporate entity as a whole commands by suggesting, as Shell did, that merely taking legal action against officers and directors is sufficient.

It would leave us with the absurd result Justice Breyer posed to the Shell lawyer Tuesday: Pirates, Incorporated.

“Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, ‘Oh, it isn’t me; it’s the corporation’….do you think that they would have then said: ‘Oh, I see, it’s a corporation. Good-bye. Go home.’?”

Esther Kiobel should not be told “Good-bye, go home”.

Take action and tell Shell to “Own Up and Pay Up to Clean Up the Niger Delta.”

Erica Razook is a member of the Business and Human Rights Group of Amnesty International USA. She is a lawyer working at the Open Society Justice Initiative.

Workers dig at a gold mine in north eastern Congo. (Photo LIONEL HEALING/AFP/Getty Images)

From jewelry to cell phones, global consumers are inadvertently supporting a trade in minerals that perpetuates horrific human rights abuses in the Democratic Republic of Congo (DRC) and surrounding areas.  But we have a chance to break this link – by using transparency as a tool to promote and protect human rights.

Last year, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Within this landmark law is a provision that addresses an ongoing activity at the intersection of business and human rights: the trade and mining of minerals from Africa.

Section 1502, or the Conflict Minerals provision, essentially requires publicly traded companies to disclose to the Securities and Exchange Commission (SEC) whether their products contain minerals from Congo or adjacent countries. If so, these companies must explain the actions taken to trace the origin of the minerals and whether they come from mines or trading routes that help fund armed conflict.

Profits that fund armed groups from the conflict minerals trade contributes to a dire humanitarian situation in the east of Congo.  Human rights abuses, including gender-based violence such as rape and sexual slavery, have reached catastrophic proportions.

The SEC was initially expected to release a final rule giving life to the provision in April 2011, but to date, the SEC has failed to issue a final rule.  Failure to release a strong final rule soon harms companies, taxpayers, investors, and the Congolese people by threatening to undermine progress on the ground in preventing minerals from fueling conflict.

Delays create uncertainty and remove incentives for companies to develop due diligence processes and systems that can enable them to source minerals from the DRC responsibly. Moreover, US taxpayers continue to pay US $500-600 million per year in aid and peacekeeping costs aimed at making Congo a more stable place. For investors, the right to know what activities their investments or purchases may be directly or indirectly supporting is compromised.

But most critically, for the Congolese people, further delays mean armed groups can continue to prey upon and draw financing from the minerals sector, while fueling instability and committing human rights abuses against civilian populations.

This is not what Congress intended by enacting Section 1502, and the SEC and the Chairman and Commissioners risk undermining the intent behind the law by delaying the issuance of the final rule and by weakening its scope.

Take action to urge the SEC to issue strong and final rules on conflict minerals.  It’s time we start asking companies who we invest in or purchase from to do more to ensure that the minerals in our products are not contributing to human rights abuses.  Tell the SEC Commissioners and the Chairman to not cave to industry pressure, and to issue rules that give life to the intent behind the statute.

© Scott Olson/Getty Images

This week marks the four year anniversary of the Nisour Square massacre, where on September 16, 2007, 17 Iraqi civilians were allegedly shot and killed and dozens more injured by Blackwater (now known as Xe) security contractors employed by the Department of State.

Five eyewitnesses insisted that the company guards fired without provocation, forcing civilians and Iraqi Police to run for cover.

The incident gained worldwide attention and highlighted the consequences of the U.S. government’s increased privatization of military and security functions. Today it is a reminder that after four years, Congress has still failed to clarify and strengthen jurisdiction of U.S. courts over its security contractors operating overseas by passing the Civilian Extraterritorial Jurisdiction Act.

The U.S. government obtained indictments of the contractors involved in the shooting and brought suit in U.S. court—the outcome of the case is yet to be determined. Initially, the case was dismissed because it was not clear whether the indictments were based on immunized statements or other evidence. On appeal, the DC Circuit court remanded the case directing the government to show that it obtained sufficient evidence implicating the contractors prior to obtaining the immunized statements.

An Iraqi woman whose husband was killed sits with her children listening during a meeting with US Federal Prosecutors to discuss the case against the security firm Blackwater at the central police station close to Nussur Square in central Baghdad on December 13, 2008. (Ahmad Al-Rubaye/AFP/Getty Images)

One of the thorny issues raised in recent years has been whether criminal jurisdiction extends to non-Defense Department contractors, such as those involved in Nisour Square. Current law in the form of the Military Extraterritorial Jurisdiction Act (“MEJA”) gives U.S. courts jurisdiction over contractors employed by the Department of Defense and some other agencies so long as their employment is related to “supporting the mission of the Department of Defense.”

While this law is an important piece of legislation, it leaves a significant jurisdictional gap in that it does not clearly apply to contractors supporting non-Defense related government operations, including those contracted by the State Department or the U.S. Agency for International Development.

As a response to these concerns, Senator Patrick Leahy (D-VT) and Congressman David Price (D-NC) have introduced bills to clarify and extend criminal jurisdiction to contractors and government employees overseas in a clearly articulated way: the Civilian Extraterritorial Jurisdiction Act (“CEJA”).

Outside of human rights advocates encouraged by such legislation, witnesses at a Senate Judiciary Committee hearing on CEJA were equally welcoming. Even members of the contracting community welcomed the legislation. Ignacio “Iggy” Balderas, Director and CEO of Triple Canopy, a private security company, recently wrote in a Huffington Post piece:

“We now have a chance to firmly lay down the rules, punish violators and allow the professional PSCs who make me proud every day do the jobs they’re trained to do. This is why I support The Civilian Extraterritorial Jurisdiction Act (CEJA), which will be reintroduced soon by Sen. Patrick Leahy, D-VT.”

The bill was originally introduced last year and goes further than the current law in holding contractors accountable and plugs potential legal loopholes that bad actors may take advantage of.

As the United States increasingly relies on private contractors to perform a range of services around the world, accountability measures need to be created, tightened, and enforced. In Iraq and Afghanistan, private military and security contractors about equal the number of U.S. troops there, and at times, have outnumbered them. With CEJA, this new reality is addressed and a clearer path to accountability created.

Earlier this week, we reported on this blog that the possibility of a civil remedy for the detainees abused by Titan (L3) and CACI employees at Abu Ghraib was denied when the Supreme Court refused to allow the suit against the two companies to move forward.

The Center for Constitutional Rights had brought the lawsuit on behalf of 250 victims of abuse using the Alien Tort Statute, a key legal tool in ensuring civil remedy to victims of corporate human rights violations committed overseas.

Now, an opportunity for criminal justice for those abused by Titan (L3) and CACI employees has also been squandered. Today, the Washington Post reports that Special Prosecutor John Durham has closed his investigation of 101 cases of CIA interrogators and contractors alleged participation in detainee abuse.

Durham had been appointed by Attorney General Eric Holder in August 2009 to initially review nearly a dozen cases of alleged detainee mistreatment. Durham carried out his mandate in near total secrecy.

The Department of Justice will open up full criminal investigations in only two cases involving the death of detainees, one at a black site in Afghanistan dubbed the “Salt Pit” and the other at Abu Ghraib. From the limited information available, it appears neither involves Titan (L3) or CACI employees.

The news leaves many questions unanswered – in particular, why  the cases against the contractors were dismissed, particularly in light of the Army’s past critical reports of their involvement, and at times, direction, of abuse.

With the administration’s position in Saleh v Titan, and this news of the paucity of criminal investigation into abuse, Washington is closing doors to both civil and criminal accountability of private military contractors for their involvement in detainee abuse at Abu Ghraib, leaving at least the 250 victims named in the civil suit without access to justice or remedy for what they suffered, and sending a signal to companies that such gross conduct will be tolerated.

This infamous moment in the United States’ “global war on terror” will forever remain an ugly scar on our nation’s legacy as a people that (allegedly) value human rights and protect human dignity.

Amnesty International continues its call for full accountability for torture and abuse in the name of national security, to include a full commission of inquiry into U.S. detention and interrogation practices; prosecution of all those responsible for torture and other crimes; and remedy for all victims.

Justin Cannon and Christopher Drotleff were working for private security company Blackwater (now known as Xe) when they were accused of killing two civilians and injuring two others after opening fire on a vehicle in Afghanistan in May 2009. Romal Mohammad Naiem, who was a passenger in the car, which had approached the scene of a traffic accident involving two Xe vehicles and was leaving when it was repeatedly shot upon, was killed.

© Scott Olson/Getty Images

On Monday, Cannon was given a 30-month sentence for involuntary manslaughter in the shooting death of Naiem. Drotleff, his partner, received a 37-month sentence earlier this month.

According to the Virginian-Pilot, they are the first Xe contractors to be punished for killing a civilian in a conflict zone. (Four more Xe contractors still face manslaughter charges for the Nisour Square shootings that resulted in the death of 17 civilians.)

While these convictions go some way towards holding individual security providers to account for the deaths of innocent civilians,  the broader issue of responsibility of private military and security companies that systematically fail to ensure they respect human rights in their daily operations remains.

Blackwater (Xe) convictions eclipsed by Obama administration’s position against access to courts for torture victims

The Christian Science Monitor reported on Monday that the Supreme Court refused without comment to reconsider an appellate decision dismissing a case against contractors Titan (L3) and CACI.

After employees of the two companies were implicated by the US Army in two investigations in the infamous torture and abuse of detainees at Abu Ghraib in 2003 and 2004, the Center for Constitutional Rights brought a lawsuit against the companies on behalf of 250 victims of abuse using the Alien Tort Statute (ATS). The ATS allows non-US citizens to sue in US federal courts for a violation of international law.

The case was dismissed by an appeals court in a 2-1 ruling wherein the two judge majority first attacked the reach of the ATS, saying the former Iraqi detainees were not empowered to challenge a corporation since torture committed by a private contractor is not a violation of a settled international norm.

The judges then further precluded the claims by invoking a doctrine of “battlefield preemption,” whereby tort claims against a contractor cannot proceed if that contractor is integrated into combatant activities over which the military retains command authority.  However, the U.S. Army has denied that it had this type of command and control authority and Titan and CACI at the time were operating under a Department of the Interior contract.

The Supreme Court’s decision allows the Appeals Court decision to stand, offering a clear blow to human rights protections and corporate accountability for abuses. Abu Ghraib was the earliest and most detrimental hit to America’s reputation as a nation that upholds human rights and marked the beginning of a slew of rights violations linked to the global “war on terror”.

The Obama administration came into office promising to address rights violations in the war on terror; as Senator before that, Obama even spearheaded legislation to improve the oversight and accountability of private military and security contractors.  However, the US Solicitor General, Neal Katayal, instead filed a brief on behalf of the administration advising the Supreme Court not to hear the case to reinstate the plaintiffs’ lawsuit against the companies.

One can hope that such egregious human rights violations by contractors supporting a Department of Defense (DOD) mission would not occur again, and if they did, that the vehicles available for criminal accountability, the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ), would be used to punish the perpetrators. (Though to date, the political will to prosecute contractors has been scarce.)

Use of private security contractors on the rise

However, the picture becomes drearier as, with the withdrawal of troops in Iraq and soon Afghanistan, the Department of State is expected to significantly increase its use of security contractors. And that’s where there’s even greater cause for concern: security contractors not supporting a DOD mission are subject neither to the MEJA nor the UCMJ.

To rectify this legal shortcoming, Senator Leahy and Representative Price recently re-introduced the Civilian Extraterritorial Jurisdiction Act. Care should be taken to ensure this bill once and for all addresses the loopholes that have allowed contractors – individuals and companies – to escape accountability. Of course, even a perfect law on the books still requires the political will of the administration to employ it to end impunity.

Gas is flaring in the Niger Delta. © Pius Utomi Ekpei/AFP/Getty Images

On May 25, 2011, I attended Chevron’s Annual Shareholder’s Meeting representing Amnesty International.  This is the 4^th meeting I’ve attended but much has changed since 2005.

With the recent 9 billion dollar class action verdict in Ecuador (and last year’s arrests in Houston), security was high and there were real questions as to whether or not the international delegation of NGOs would be allowed in. Fortunately, after an extensive security check, which makes TSA like a walk in the park, we were all allowed in to speak.

During the Q & A portion of the meeting, I addressed Chairman John Watson on the use of gas flaring in the Niger Delta; a technology that has led to serious health related issues and environmental contamination:

“My name is Tony Cruz and I am representing Amnesty International. Amnesty has documented extensively how oil companies operating in the Niger Delta have polluted the air, water, and land of that region of Nigeria. Our recent “Eyes on Nigeria” project has used satellite imagery to document the use of gas flaring by Chevron and other companies; a practice that has caused significant pollution to the air and water.

With the expensive litigation and recent judgment against Chevron in Ecuador for similar pollution, I think we can all agree that it makes sense for Chevron to seek to proactively reduce its pollution now, to avoid expensive clean up and litigation later. So, to what extent is Chevron continuing to use gas flaring in Nigeria and when will Chevron phase out that practice in the future?”

Mr. Watson responded:

We want this by tomorrow. We want what you want. But this is going to take several more years because of disruptions in Nigeria. But we have invested in gas to liquid projects.

Twenty minutes later, Laura Livoti from Justice in Nigeria Now pressed the Chairman further pushing for specifics stating:

“Chevron stated 10 years ago that you would phase out gas flaring in 5…. When was the 1^st date that you made this promise?… Do you personally think that gas flaring causes asthma and cancer?…. and Do you believe that gas flaring contributes to Greenhouse gases?”

Watson responded:

Thank you for your question. Again, we have invested billions of dollars into gas to liquid projects. We are working on it but it will take some time because of conflicts such as sabotage.

Watson’s response was insufficient at best and unfortunately a sign of things to come later in the meeting. Delegates’ questions were gobbled up and regurgitated in similar fashion followed with the foreseeable statement of “I hear what you’re saying but we don’t agree. Chevron is a responsible company and working with the local communities to build a better environment.”

It became so predictable, that if you removed the issue and the location from Watson’s statements, you would essentially have the same generic statement; a kind of Q&A Mad Libs extravaganza that lasted for over an hour.  As each person stood in front of the Chairman pouring out unimaginable stories of the horror and hardship each has had to endure in their community because of Chevron’s operations, Watson managed to minimize and disregard their stories beginning with his casual tone of “We don’t agree.”

However disparaging and discouraging Watson’s antics had become, the feeling of unity amongst the delegation was undeniable. Passions ran high. Voices ran higher. Occasionally, there was the threat of terminating the meeting. But in the end, each person approached the microphone remaining steadfast in their conviction that injustice had been done and Chevron needed to hear it and that they needed to pay.

We heard from a woman who spoke on Chevron’s Pandacan oil deposit in Philippines; a site with a history of operational problems and by many experts said to be a ticking time bomb situated in a high densely populated area which is not equipped to handle a catastrophic environmental disaster.

We heard from Elias Mateus Isaac who grilled Watson on Chevron’s operations in Angola and the devastating impact it has left on the local fishing industries and communities.

We heard from the persistent Ecuadorian delegation who have been attending the shareholder meetings for the last decade and who pleaded with Watson to reconsider his decision to fight the recent verdict against Chevron, and work with them to find a resolution.

In the end, justice prevailed in a cold gray conference room on 6001 Bollinger Canyon Road in San Ramon, CA that morning. The lies and spin doctoring could not eclipse the powerful truth spoken by the brave men and women who traveled thousands of miles to face the corporate Goliath who had irrevocably decimated their lives.

As an avid Chevron shareholder attendee, I have seen the momentum growing the last few years. I’ve listened to the change in Chevron’s rhetoric to placate to the recent climate and movement towards sustainability. I have seen the negative press rapidly building around the company as news over loss of innocent lives overrides that of personal profit.

So in the spirit of Chevron’s ad -“We Agree”: your time is coming.

Section 1502, or the Conflict Minerals provision, essentially requires publicly traded companies to submit annual reports to the Securities and Exchange Commission disclosing whether their products contain minerals from Congo or adjacent countries. If so, these companies must explain the actions taken to trace the origin of the minerals and whether they come from mines that help fund armed conflict.  While the Commission is still working out the rules pertaining to how exactly this gets done, the provision itself has received strong support.

Here’s why such disclosure and due diligence are necessary: armed groups perpetrating the violence finance themselves through trade in four main minerals – tin, tantalum, tungsten and gold.  These minerals are turned into metals that are then sold on to be used in the very mobile phones and laptops you are using now.  If we as consumers knew which products contained the minerals from these mines, we could use our purchasing power as a force for change.

Consider what is happening on the ground in the DRC, where the illegal profits made from these minerals are just some of the consequences of the unregulated and unrelenting mining in the eastern region.  Gender based violence is rampant, with sexual slavery, forced recruitment, forced prostitution and rape, having reached catastrophic proportions.  Local health clinics in South Kivu report that, on average, 40 women are raped daily.

That sexual violence is an active weapon of war used by armed groups in the region is clear.  As recently as August 2010, the UN Joint Human Rights Office in the DRC investigated and reported on the mass rape of over 300 civilians, emphasizing the link between competition over mineral resources and the violence. According to another study, conflict and the humanitarian crisis in the DRC have resulted in the death of an estimated 5,400,000 people since 1998 and continue to cause as many as 45,000 deaths each month.

Congress should rightly be commended for taking the lead in addressing this horrific violence through tailored and targeted legislation in the form of Section 1502.  Once the rules are finalized, businesses may be required to disclose their own involvement with these armed groups, upstream all the way through their supply chains.

But a larger movement is beginning.

Legislation in California, introduced by State Senator Ellen Corbett, would push California to be the first state to go “Conflict-Free”. This landmark piece of legislation, SB 861, would stop California contracts from going to companies that fail to comply with Federal reporting requirements to combat the trade of minerals fueling conflict in the eastern Democratic Republic of the Congo.  Linking lucrative procurement contracts with Section 1502 is a good way to incentivize  meeting the federal rules.  Further, this added piece of legislation works to ensure that businesses are held accountable in financial terms for the human rights abuses that their activities either cause directly or contribute to causing.

California is leading the way in going “Conflict-Free”.  You can help by indicating your support for this legislation.  Spread the word, sign the petition and attend the hearing on Tuesday, April 12th in Sacramento.

After an eighteen-year, multinational court battle, Chevron was found guilty today in an Ecuadorian court and fined $8 billion for pollution that amounted to an ecological disaster and seriously harmed the human rights of the indigenous inhabitants in a small and sensitive part of the rainforest.

Before human rights, environmental, and corporate accountability advocates celebrate too quickly, however, they should be aware that the litigation – already so reminiscent of Dickens’ Bleak House – is likely to go on for some time yet.

Background to the Case

The heart of the claim – about which you can read much more at the website of the Business and Human Rights Resource Centre — is that the oil company Texaco contaminated the land in question over three decades, dumping oil-drilling waste in unlined pits, contaminating the forest and causing illness and death among the local inhabitants. When Chevron acquired Texaco in 2001, the Ecuadorian plaintiffs say, Chevron acceded to responsibility for the harm done.  Chevron, in turn, argues that a 1998 agreement Texaco signed with Ecuador limits its liability at the $40 million allegedly spent on cleanup, and that any remaining pollution resulted from subsequent operations by state oil company Petroecuador.

The Ecuadorians originally filed a class action in New York federal court way back in 1993, on both toxic tort and Alien Tort Claims Act grounds. The Alien Tort Claims Act is the venerable 1789 statute, passed by the first US Congress, which allows aliens to sue in US federal courts for torts in violation of the law of nations or a treaty. This statute has been used to achieve some measure of corporate accountability in a number of successful settlements and pending actions against businesses involved in egregious human rights violations.

The corporate defendant sought and won a dismissal of the lawsuit on grounds that the US was an “inconvenient forum” – a decision that Chevron may regret at this point – and the litigation was recommenced in Ecuador, ultimately resulting in this $8 billion judgment by the Ecuadorian court in Lago Agrio against Chevron.

Not Exactly a “Civil” Action

The story doesn’t stop there, however.  This lengthy and high-stakes litigation has been characterized, sadly, by ethically dubious action on all sides. There have been strong accusations of dirty tricks and corruption by both the plaintiffs’ counsel, and by Chevron and its counsel. Most recently, the former lead counsel for the plaintiffs, Steven Donzinger, was accused of having authored parts of the report of Ecuadorian court-appointed expert Richard Cabrera that pegged environmental damages at more than $27 billion. New York Southern District Judge Lewis Kaplan last year ordered the disclosure to Chevron and its counsel, Gibson Dunn, of outtakes from the documentary “Crude” pertaining to Donzinger’s conduct. Donzinger ended up reducing his role in the case in favor of the respected D.C.-based law firm Patton Boggs.

Chevron and its counsel have similarly been accused of various improprieties and fraudulent actions, also including ex parte (i.e. involving only one as opposed to both parties) communications with judicial officials, allegedly asking a contractor to switch contaminated soil samples with clean ones to present to the court, and reportedly hiring a journalist to undermine the victims’ claims.

Although ex parte communications are not usually allowed in the US, however, Ecuador allows more scope for them. And in any event Chevron succeeded in getting a new judge appointed in the Ecuadorian case.

More Forum Shopping

Not content with the transfer of the case to the Ecuadorian forum, or the new judge, and seeing that things weren’t going as well as planned in Ecuador, Chevron has sought still further forums in which to wage this battle.

Shortly over a year ago, Chevron invoked a more business-friendly arbitration in The Hague under the US-Ecuador investment treaty. And on February 1, Chevron and its counsel Gibson Dunn filed another suit in New York, this time alleging fraud and racketeering by Donzinger and plaintiffs’ counsel, despite Donzinger’s reduced role. Remarkably, Chevron even accused the new law firm for the Ecuadorians, Patton Boggs, a non-party to the New York action, of being a “non-party co-conspirator” to such actions.

Patton Boggs predictably responded with its own lawsuit in Washington D.C. last week accusing Chevron and Gibson Dunn of engaging in a “smear campaign” that amounted to tortious interference with Patton Boggs’ representation of its clients in Ecuador.

In other words, this litigation remains pretty ugly.

Preemptive Strikes and Countermeasures

Apparently anticipating today’s decision, i.e. even before today’s Ecuadorian decision was announced, Chevron requested and succeeded in obtaining from New York Judge Kaplan last Tuesday February 8th a highly unusual temporary restraining order (TRO) stopping the plaintiffs from attempting to enforce any judgment outside of the United States.

Then, for good measure, Chevron persuaded the arbitral tribunal in The Hague to order Ecuador on the next day, Wednesday February 9th, to “take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment.”

Stating that attempts to enforce the judgment could unreasonably disrupt the worldwide operations of Chevron, a company he considered “of considerable importance to our economy,” Judge Kaplan rejected arguments that his court had no jurisdiction to issue the TRO or to enforce US racketeering laws abroad. He also called the independence of the Ecuadorian judiciary into question, stating that “Ecuadorean courts do not, in general, and have not, in this case, afforded an impartial tribunal.” Ecuador’s Attorney General disagreed with the TRO but will respect it for now.

The TRO is important, since Chevron apparently has no assets in Ecuador now, and in order to begin to get compensation for the victims (and/or pressure Chevron to settle the case), attempts to seize some of Chevron’s extensive assets in other countries would be very helpful to the victims.

Chevron will seek an extension of that TRO at a hearing later this week, on February 17th.

Meanwhile, the Victims’ Right to Remedy?

Chevron’s continued fight against justice in this case is, to say the least, unfortunate – if not tragic. The scientific evidence and record in the case taken as a whole quite compellingly show that the victims have fallen by the wayside in this titanic battle.

Rather than continue these harsh tactics while ongoing environmental damage and disease continue to take their toll on those affected, it certainly would have been preferable for Chevron to have adopted a more accountable and stakeholder-oriented approach consistent with the international legal requirement that victims of gross human rights (including environmental) disasters deserve a remedy. The UN General Assembly, the UN Tripartite “Protect, Respect, Remedy” Framework, fundamental international treaties and human rights and environmental jurisprudence all emphasize the dire need for effective remedies, in the interests of business as well as victims.

But sadly, Chevron plans to appeal this decision, showing no signs yet of adopting a more conciliatory posture toward the victims. Chevron officials, after all, have famously said that the company will litigate this case until “hell freezes over,” and then “fight it out on the ice.”

The participants reflect a multi-stakeholder group representing governments, companies and their trade associations, civil society groups, and experts and academics, many of whom were involved in the 14 month process to develop the Code facilitated by the Geneva Centre for the Democratic Control of Armed Forces. This Code initiative is distinguishable from other voluntary efforts to date to create standards for companies in that its goal is to have the clients of private security providers – both governments and non-state clients like humanitarian aid organizations and other companies – include requirements to adhere to the Code in their contract vehicles.

The British government has already committed to making this a requirement for its contracted security, and the U.S. government is currently contemplating doing the same according to U.S. Department of State legal advisor Harold Koh. This would lend these voluntary standards some real teeth, as the human rights commitments made by the signatory firms could be upheld in courts of law. Furthermore, it represents an important advancement in the recognition by a global industry of the obligations of firms to uphold human rights wherever they operate.

However, the credibility of this initiative will hinge on the nature of the external independent mechanisms for effective governance and oversight. OMB Watch and some non-governmental organizations have warned of the shortcomings of any mechanism of reporting the incidents of the use of force that relies on self-reporting. Humans rights groups, such as Human Rights Advocates, Right Respect, and other human rights groups have endorsed the Code, but warn that the Code not be viewed as a substitute for the development of binding legal instruments to ensure that private security firms are held accountable for their actions.

In particular, Jose Gomez del Prado, of the United Nations Working Group on Mercenaries, recently at a parallel meeting to the United States’ Universal Periodic Review before the United Nations Human Rights Council reiterated the poor human rights track record of security providers and called for support of the intergovernmental working group established to create a binding international legal instrument regulating and monitoring their activities at the national and international level.

Amnesty International has continued to call for an end to the impunity for private military and security companieskeep the pressure on President Obama and Congress to respect human rights complicit in human rights violations. Help us ensure accountability for the industry, and counter terror with justice.