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When acclaimed Nigerian writer Ken Saro-Wiwa and eight other environmental and human rights activists were hanged in 1995 after what was widely seen as a sham trial, world leaders protested. Five years later, a suit is making its way through the New York courts that points the finger not at the dictatorship that ordered the executions, but at the Royal Dutch Petroleum Co., the parent company of Shell Nigeria. Wiwa v. Royal Dutch Petroleum Co.,No. 99-7223. The suit is being brought under an old law, the Alien Tort Claims Act, which is increasingly being used to redress, in U.S. courts, the international human rights violations committed by individuals, organizations, governments and multinational corporations. The family members pursuing Wiwa hope that it joins other cases under the act that have resulted in big verdicts. Among the most recent: verdicts against former Bosnian Serb leader Radovan Karadzic, for $745 million on Aug. 10 and for $4.5 billion on Sept. 25, both for alleged genocide and torture. The cases stem from a renewed interest in the law over the past 20 years, during which time lawyers have expanded their targets from discredited, bankrupt individuals to multinational corporations. The result has been to establish a new way to hold human rights violators responsible. More recently, the cases are raising the stakes both for financial recovery and for conflict with U.S. foreign policy. The act, 28 U.S.C. 1350, dates to 1789 and has murky origins. It permits aliens to sue in U.S. court for a tort committed in violation of the “law of nations” or a treaty of the United States. There is no congressional definition of the law of nations, and its interpretation is debated. Case law referring to Blackstone’s Commentaries says that the law was perhaps instituted to target piracy or meant to permit ambassadors to sue in this country. In the Wiwa case, the family of Saro-Wiwa and others allege that Shell had recruited the Nigerian police and military to attack villages and suppress the organized opposition to its development activity. On Sept. 14, the 2nd U.S. Circuit Court of Appeals reversed a district court’s dismissal of the suit. Shell’s lawyer did not return phone calls, but an attorney for the plaintiffs said that the oil company has filed a request for an en banc hearing. Jennifer Green, an attorney at the Center for Constitutional Rights, was involved in both the Wiwa and Karadzic cases. She has been involved in nine of the 13 cases brought by the center under the Alien Tort Claims Act. Green says that the expansion of the application of the act can be seen as building blocks. “They’re key developments to building an international system where human rights violators can be held accountable,” she says. Others are critical of the new application by the courts. They say that regardless of whether the victims experienced horrible atrocities, the suits are inappropriate because of their reliance on the law of nations rather than on international law ratified by the U.S. government. “The real problem with the cases is not the jurisdictional issues, but the source of the law being applied,” says Jack Goldsmith, a professor of international law at the University of Chicago, “because basically this law is being made by U.S. federal courts, and they’re making it on the basis of treaties, resolutions and the writings of academics, to which the U.S. has not consented. And even if it has consented, it hasn’t been made part of domestic law.” A CHAIN OF CASES The Alien Tort Claims Act, long moribund, was resuscitated in 1980 when a court awarded more than $10 million (never collected) in Filartiga v. Pena-Irala, 630 F.2d 876. The suit, brought by the Center for Constitutional Rights, was on behalf of the family of a human rights activist who had been tortured by America Pena-Irala, an ex-inspector of police in Asuncion, Paraguay. In 1995, a ruling in Kadic v. Karadzic, brought against Karadzic, the Bosnian Serb leader, by alleged victims of rape, torture and genocidal sexual atrocities, set the stage for the most recent suits against corporations. A 2nd Circuit ruling in cases against Karadzic said that he didn’t have to be a government actor to be sued under the alien claims act. The decision opened the door for a 1997 suit over alleged abuses in Myanmar, formerly Burma. It was brought against Unocal and Total, oil companies accused of complicity with the government in abuses that included slavery and rape during the construction of a pipeline. John Doe v. Unocal, 963 F. Supp. 880. At about the same time, suits were developed against German corporations and Swiss banks on behalf of victims of the Nazi Holocaust. Though ultimately dismissed on statute-of-limitations grounds, they forced high-profile settlements and fees for the plaintiffs’ lawyers. The Myanmar suit against Unocal survived a motion to dismiss on subject-matter jurisdiction in 1997, making it the first suit against a corporation to go forward. In August, it was dismissed on summary judgment by the district court in Los Angeles. The judge said that there was no evidence Unocal had participated directly in the abuses. “I think it’s definitely a significant case,” says Daniel Collins, a partner at Los Angeles’ Munger, Tolles & Olson who represented Unocal. “It’s the first time one of these cases of this sort was put to the test in terms of proof.” The case is on appeal, however, and Green of the Center for Constitutional Rights, who is on the plaintiffs’ side, says she views the loss as a win because the judge said that he believed Unocal officials knew of the abuses. The lawyers have filed a separate action on behalf of the same plaintiffs — alleged victims of the practices — in state court under a law against unfair business practices. Diane Orentlicher, a professor at American University’s law school and an expert on the act, says that the rulings in Wiwa and Unocal “evinced fundamentally different attitudes toward the litigation presented by the plaintiffs. The district court in California applied a rather high standard for holding Unocal responsible for abuses.” In Wiwa, Orentlicher says, the 2nd Circuit “made a ringing pronouncement of judicial policy. In clarion terms, the court made clear that the U.S. law favors providing a forum in U.S. courts for victims of torture, wherever perpetrated and whomever the perpetrator or victim. The 2nd Circuit’s message, in its words, is that ‘torture committed under color of law of a foreign nation in violation of international law is our business’ — that is, of U.S. courts.” The jury verdicts against Karadzic and the settlements on behalf of Holocaust victims have been big, but it’s the pending cases that are likely to be the real litmus test for corporations. If successful, they’ll also be more lucrative. Another suit that was brought under the act and has had a recent important ruling is Bowoto v. Chevron, No. 99-2506. It also accuses an oil company of human rights abuses against Nigerian citizens. In April, a judge in the Northern District of California ruled that it could proceed, rejecting the same jurisdictional argument, forum non conveniens, that was raised in Wiwa. UNCERTAIN OUTLOOK Those watching the cases say that it’s unclear which suit is likely to be resolved first and thus set a precedent. Although no jury award has been paid in any of the cases, critics of the Alien Tort Claims Act are worried. One of them, Donald Kochan, a lawyer at Crowell & Moring in Washington, D.C., says that the potential for success against corporations is high. “It’s inevitable that if there’s not an end to the expansion of the doctrine, that more cases will become successful or the threat will be so large that settlement is the only prudent decision,” he says. Cases making their way through the courts also include one that targets Nike for unfair labor practices, and a number of others against South and Central American former politicians. There has been a recent slew of cases filed against a variety of defendants: � While in New York for the U.N. Millennium Summit, Zimbabwe’s President Robert Mugabe was served papers alleging human rights abuses surrounding his country’s June parliamentary elections. � Li Peng, the former Chinese premier, was served papers on behalf of a group of Chinese students challenging the government’s actions during the Tiananmen Square protests in 1989. � On Sept. 6, a group of Papua New Guinea islanders filed a suit against Rio Tinto, an Anglo-Australian mining company based in London, alleging environmental and human rights violations. � On Sept. 18, a group of women filed a class action against the Japanese government alleging that they were sex slaves, or “comfort women,” during World War II and were repeatedly raped and abused by Japanese soldiers. The latter two actions were taken, not by the Center for Constitutional Rights or another nonprofit organization, but by familiar names in the class action plaintiffs’ bar. In the Rio Tinto suit, the attorney is Steven Berman of Seattle’s Hagens Berman, who represented 14 states in tobacco litigation. He’s joined by nationally known plaintiffs’ attorney Paul Luvera, of Seattle’s Luvera, Barnett, Brindley, Beninger & Cunningham. The attorneys on behalf of the “comfort women” include the class action firms Cohen, Milstein, Hausfeld & Toll, in Washington, D.C., and Lieff, Cabraser, Heimann & Bernstein, in San Francisco. A Harvard professor of international law, Anne-Marie Slaughter, says of the newest cases, “They are going to be real important because there is a real tension between human rights and diplomacy, especially when you have the sitting heads of state.” She says that the U.S. rejection of international courts, coupled with U.S. willingness to try foreigners at home, could lead to global tension. A possible outcome: The U.S. government, soldiers or corporations are taken to court in unfriendly countries. “I would definitely have to take very seriously the likelihood that we will see reciprocal action in foreign courts,” Slaughter says. The Center for Constitutional Rights’ Green says that would be all right. “We’re hoping not just the U.S. but other jurisdictions will hear civil and criminal cases,” she says, “so perpetrators can’t just flee their violations, wherever they are.”

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