A New Spin on Fighting for Justice

By Kelly Hearn, AlterNet. Posted March 10, 2006.

Nigeria, 1999: Government soldiers, riding in helicopters owned by Chevron Corp., fire on villages opposed to oil operations. Colombia, 1998: The Colombian Air Force, acting in the interest of U.S.-based Occidental Oil, drops a cluster bomb on the village of Santa Domingo. In Burma, government soldiers use rape, murder and torture to silence opposition to a gas pipeline project of California-based Unocal.

High petroleum prices and rising populist anger are ratcheting up human rights pressures along the world's remote pipelines. And from Burmese villagers to Nigerian farmers, Colombian environmentalists to Ecuadorian jungle dwellers, indigenous peoples in poor, resource flush nations are reaching up from the cracks and saying no to globalized oil.

Can they swing at globalized Goliaths without resorting to dangerous and limited tools of the disenfranchised to protest kidnappings and sabotage?

Enter the Alien Tort Claims Act of 1789, a two-century-old U.S. law passed to deal with international piracy and diplomatic rights. A dose of modern lawyering has dusted off ATCA in recent years, buffing it into a powerful human rights tool that offers foreign aliens access to U.S. courts in cases where corporations violate international law. Activists pitch it as a big stick for little folks, one to redress extra-judicial killings, corporate-backed torture, and genocide.

Corporations call the ATCA a faulty vector for greedy lawyers, and their lobbying has set the Bush administration and Capital Hill cronies on a quiet path to kill it.

Old problem, new spin

The law's modern rebirth started in Paraguay, in 1976, with the paintings of Dr. Joel Filartiga, a medical philanthropist and artist whose paintings, according to court documents, "depict the oppression and suffering of the people of Paraguay." On March 29, his 17-year-old son, Joel, was kidnapped by a group of policemen, including an official named Americo Norberto Pena-Irala. According to official court complaint, Pena-Irala tortured Filartiga to death and approximately four hours later summoned Filartiga's sister Dolly out of bed to look at the body, suggesting he was murdered in reprisal for her family's political stances. Pena-Irala subsequently moved to the United States and was sued by the Filartiga family under ATCA. In 1980, the family won a $10 million (but uncollected) judgment. Then, years later, came Bosnia, and a little more evolution for ATCA's new self. In 1995, a U.S. court ruled that Bosnian Serb war criminal Radovan Karadzic did not have be a government official in order to be sued under the law.

Experts say that ruling helped set the legal basis for ATCA's contemporary corporate portfolio, which has come to include suits involving the alleged events in Nigeria (Bowoto v. ChevronTexaco), Colombia (Mujica v. Occidental Petroleum) and Burma (Doe, et al. v. Unocal Corp.). Legal experts say some two dozen corporate cases have been filed, with most being dismissed on procedural grounds. But there has been a win that could put corporations and their insurers on edge. The storm appeared last year when Unocal paid an undisclosed sum (estimated to be at least over $30 million) to settle its suit. Steve Donziger, an attorney involved in an Ecuador-based multimillion dollar environmental lawsuit against Chevron Corp., said the Unocal victory "is a significant precedent that could open the courts to more such suits." He noted that the fact Unocal settled does limit the value of the case as legal precedent.

No doubt other corporations with ATCA baggage, from Union Carbide to Coca Cola to PriceWaterhouse, are watching. Even Big Pharma, the planet's other Economic Goliath, might be nervous. Its ATCA problems are embedded in Abdullahi v. Pfizer, a case in which the company is accused of opening a treatment center at the Infectious Disease Hospital in Kano, Nigeria, after a 1996 outbreak of bacterial meningitis, measles and cholera. The pharmaceutical giant allegedly used the crisis to conduct biomedical research experiments involving Pfizer's antibiotic drug Trovan on Nigerian children. The ATCA has also been used by Holocaust-era slave laborers and victims of South African apartheid.

Once a legal nuisance, the beefing of ATCA as a human rights tool is a thorn for an administration that's naturally adverse to torts, cozy with corporations and sensitive to all things petroleum-related. Unlike the Clintonian take on ATCA, which in amicus, or "friend of the court", briefs in the Karadzic case, supported the law as a key human rights tool, the current administration has attacked. It has repeatedly intervened in ATCA cases (especially involving corporate allies of the administration) "to suggest that they should not go forward based on political and diplomatic considerations, in some cases invoking the war on terrorism as a justification," says Marco Simons, U.S. Legal Director for EarthRights International, a Washington-based group helping spearhead several ATCA cases.

Kelly Hearn is a former UPI staff writer who divides his time between the United States and South America. A correspondent to The Christian Science Monitor, his work has appeared in The Nation, The American Prospect and other publications. He is a regular contributor to AlterNet.

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