ICC May Probe Multinationals

Friday, 29 April, 2005

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Rachel S

Luis Moreno-Ocampo, chief prosecutor for the International Criminal Court, ICC, recently suggested that foreign companies and individuals that bought "blood diamonds" from the Democratic Republic of Congo could be charged with complicity in war crimes and genocide.

While a revolutionary concept in international law, Ocampo's strategy has some parallels with an increasingly popular legal strategy used by human rights groups in the United States.

The strategy employs the Alien Tort Claims Act, a law passed by the first US Congress in 1789 to bring suits against individuals and companies for complicity in war crimes and genocide.

Ocampo has not yet spelled out his plan in great detail, saying only that people and firms who bought diamonds from those they knew were responsible for war crimes could be prosecuted along with the perpetrators.

"If they received diamonds and knew that the people delivering them were getting them because of genocide then they could well be part of the crime," he said in late September.

Human rights groups are currently making similar arguments in US courts.

In one case, Doe v Unocal, for example, peasants in Burma have alleged that Burmese military agents hired to secure a natural gas pipeline forced villagers to work, relocated entire communities, and raped, tortured, and murdered people in the process.

The plaintiffs have sued the US-based oil company Unocal, charging it with complicity in the Burmese military's acts because it had employed the military to provide security for the company's pipeline.

Human rights groups representing the plaintiffs claim that because Unocal hired the Burmese military, a group it knew was responsible for human rights violations, the company could be held responsible for the soldiers' crimes.

This is the same basic idea as that of Ocampo.

In 2000, a federal district court in Los Angeles found that "Unocal knew or should have known that the military did commit, was committing and would continue to commit these [human rights abuses]", and hired it anyway.

The case was later dismissed in another court, which decided that Unocal could only be liable if there was evidence that they wanted the Burmese military to commit these acts.

The plaintiff's appealed, however, and the United States Court of Appeals for the Ninth Circuit then reversed the court's decision and allowed the case against Unocal to proceed, holding that the plaintiffs could establish the company's liability by showing that it knowingly assisted the Burmese military in perpetrating the crimes.

This meant that the plaintiffs were no longer required to prove that Unocal wanted the abuses to take place.

This decision is now under review and may one day reach the United States Supreme Court.

The Alien Tort Claims Act history is an unusual one. It was originally designed to allow victims of pirates on the high seas to bring their cases into US courts.

In 1984, innovative lawyers successfully used it to prosecute human rights violations, bringing a suit in a US court against a Paraguayan police officer for torturing and killing a man in Paraguay.

Since that time, foreign citizens have also used the law to bring suits in US courts for violations of the law of nations - including torture, killings, forced labour and genocide.

US feminist lawyer and anti-pornography crusader Catherine MacKinnon used the Alient Tort Claims Act as the legal justification to file a suit against Bosnian Serb war time leader Radovan Karadzic on behalf of 13 Muslim and Croat rape victims in a New York court.

The Unocal case was the first to use the Alien Tort Claims Act against a corporation, but more have followed and this has infuriated business groups.

The companies being sued protest that this law dissuades investors from going to needy countries because of the fear of prosecution and that the law unfairly holds them guilty by association. The Bush administration has come down on the side of business, claiming that the law interferes with US foreign policy.

These cases provide an interesting preview of issues Ocampo might now face as he seeks to make companies responsible for the actions of the agents they hire.

"Business, and multinational companies, in particular, must understand that it is in their own enlightened self-interest to improve, respect and defend human rights," he said in his swearing-in ceremony at the ICC. "In the long run, there can be no successful companies in failing societies."

Rachel S Taylor is a lawyer and journalist based in The Hague. She conducted research for Plaintiffs in Doe v Unocal in the summer of 2000.