For over a decade landowners and villagers from countries including Papua New Guinea, Indonesia and Nigeria have been attempting to seek redress using the US Alien Tort Statute for atrocities committed by mining companies. Last year after a number of unfavourable decisions it appeared that the courts in the US were going to employ a restrictive reading of the statute. However, the below decision from the D.C. Court of Appeal gives renewed hoped to litigants.
Currently, Bougainvilleans litigants are seeking redress in the US under this statute for Rio Tinto’s direct involvement in the war crimes committed by the government during the Bougainville war. Exxon Mobil stand accused of aiding and abetting the Indonesian government in a similar vein.
If the Alien Tort Statute is held to extend to cases such as these by the Supreme Court (which is the lilekly next venue), this will be an important victory for mining communities globally for four principle reasons:
1) It will allow them to seek redress for corporate crimes committed against them.
2) It will allow them to utilise the sophisticated legal machinery in the United States to promote their claim.
3) Using this legal machinery, litigants can meticulously expose the illegal practices being used by mining companies.
4) Companies like ExxonMobil will have to be that little more careful when operating abroad.
Indonesia torture case vs Exxon Mobil revived
Fri, Jul 8 2011
By Jonathan Stempel
NEW YORK (Reuters) - Indonesian villagers who accused Exxon Mobil Corp's security forces of murder, torture and other atrocities have regained their right to sue the giant oil company in the United States.
A federal appeals court said on Friday that companies are not immune from liability under a 1789 U.S. law known as the Alien Tort Statute for "heinous conduct" allegedly committed by its agents in violation of human rights norms.
The 15 villagers contended in their lawsuit that family members were killed and that others were "beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty" amounting to torture in Indonesia's Aceh province between 1999 and 2001, a period of civil unrest.
A divided panel of the D.C. Circuit Court of Appeals said Exxon Mobil should be forced to defend against such charges.
Given that laws in civilized nations hold corporations responsible for lesser wrongs, "it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for shockingly egregious violations of universally recognized principles of international law," Judge Judith Rogers wrote for a 2-1 majority.
Friday's decision reversed part of a ruling by the federal district court in Washington, D.C.
It is also at odds with a landmark ruling last September by the federal appeals court in New York, raising the prospect that the U.S. Supreme Court could try to resolve the dispute.
"The ruling basically says that corporations are not above the law," said Jennifer Green, a University of Minnesota law professor and director of that school's human rights litigation clinic, who submitted a brief on the plaintiffs' behalf. "When corporations have knowledge that they are aiding and abetting human rights abuses, they can be held liable in a U.S. court."
Exxon Mobil, based in Irving, Texas, said it is reviewing Friday's decision, calling the plaintiffs' claims "baseless." Indonesia's government has also opposed the lawsuit.
"Not above the Law"
The villagers sought to hold Exxon Mobil responsible for having retained soldiers from Indonesia's military as guards for a natural gas facility in Aceh, despite knowing of past human rights abuses by Indonesia's army and that the contract would lead to human rights violations against Aceh villagers.
In its ruling, the D.C. Circuit also upheld the district court dismissal of claims under a different law, the Torture Victim Protection Act.
It returned the case to that court, where a jury could decide liability and any compensatory or punitive damages.
"We have fought these baseless claims for many years," Exxon Mobil spokesman Patrick McGinn said in a statement.
"While conducting its business in Indonesia, ExxonMobil has worked for generations to improve the quality of life in Aceh through employment of local workers, provision of health services and extensive community investment. The company strongly condemns human rights violations in any form."
Agnieszka Fryszman, a lawyer for the plaintiffs, said the decision makes clear that corporations would be "as liable as anyone else" for violating international human rights norms.
Friday's decision puts the D.C. Circuit in agreement with the 11th U.S. Circuit Court of Appeals, which has jurisdiction in Alabama, Florida and Georgia.
It also put both courts at odds with the 2nd U.S. Circuit Court of Appeals, which said companies are not liable in U.S. courts for violating international human rights law.
That case was brought against Royal Dutch Shell Plc by the families of seven Nigerians executed by a former military government. They accused Shell of helping Nigerian authorities violently suppress protests against its oil exploration and development in the 1990s. [ID:nN04244684]
The 2nd Circuit decision applies in New York, Connecticut and Vermont.
Judge Brett Kavanaugh dissented from Friday's decision, saying it would be "quite odd" for a U.S. court to allow Alien Tort Statute claims against a corporation based on customary international law, when no international tribunals would.
He also said the ruling could harm U.S.-Indonesian relations, and perhaps damage the war on terrorism.
Kavanaugh was appointed to the bench by President George W. Bush. Rogers and Judge David Tatel, who comprised the majority, were appointed by President Bill Clinton.
Exxon shares closed up 6 cents at $82.42 on the New York Stock Exchange.
The case is John Doe VIII et al v. Exxon Mobil Corp et al, D.C. Circuit Court of Appeals, No. 09-7125.
(Reporting by Jonathan Stempel; additional reporting by Anna Driver in Houston and James Vicini in Washington, D.C.; editing by Tim Dobbyn, Andre Grenon and Matthew Lewis)