Individuals Struggle to


By Shravanti Reddy

Digital Freedom Network
August 8, 2002

How do 11 villagers from Indonesia have the power to file a suit against the oil and gas giant, ExxonMobil in a US District Court for human rights violations they committed in Indonesia?

Answer: The Alien Tort Claims Act (ATCA).

The Alien Tort Claims Act allows foreigners to bring a civil suit in a US District level court for a crime committed anywhere in the world by an individual, government, or corporation that violates the law of nations or a treaty of the United States. Such legislation is unique to the US and it has become one of the few avenues that are available to address the human rights abuses of transnational corporations (TNC). A transnational corporation is defined by the United Nations (UN) as an "enterprise with activities in two or more countries with an ability to influence others."

However, despite the villagers' efforts, the US government has recently made an attempt to block the ExxonMobil lawsuit claiming that it will hurt US relations with Jakarta, whom they consider an important ally in their war against terror.

In a letter to the judge presiding over the case, the US State Department has said that the lawsuit could have a "seriously adverse impact on significant interests of the United States, including interests related directly to the ongoing struggle against international terrorism."

Doe v. ExxonMobil Corporation

In June 2001, 11 plaintiffs from the Aceh province of Indonesia's Sumatra Island filed a suit using the ATCA against the ExxonMobil corporation with the help of the International Labor Rights Fund, an advocacy organization dedicated to achieving just and humane treatment for workers worldwide.

The suit alleges that ExxonMobil had been complicit in human rights violations committed by Indonesian military units who were hired to provide security for their natural gas field located in the Aceh province.

Since 1975, the Indonesian military has had a history of violence and repression towards the Aceh ethnic minority and their Islamic separatist movement. While under contract with ExxonMobil, these military units were responsible for widespread human rights abuses that include murder, torture, rape, and kidnapping of the Aceh local population. For example, barracks provided by ExxonMobil were used as a place to torture prisoners and equipment provided by them, such as tractors, were used to dig mass graves for those who had been summarily executed.

The Alien Tort Claims Act

Originally created for use against pirates, the ATCA lay dormant and forgotten until 1980 when it was rediscovered and put to use by lawyers at the Center for Constitutional Rights in the landmark case of Filartiga v. Pena-Irala. Using the ATCA, two Paraguayan family members brought suit against a former Paraguayan state official who had committed acts of torture against a member of their family. They won a guilty verdict and were rewarded a substantial monetary amount.

Since then, it has repeatedly been used against individuals and governments with some success. It has rarely been used against corporations—until recently.

Transnational corporations and ATCA

While the pirates originally envisioned by the creators of the ATCA have long since become extinct, the Act has great potential against a modern-day pirate, the TNC.

There has been an increasing concern in recent years over the role that TNCs play in carrying out and contributing to human rights abuses throughout the world. As in the ExxonMobil case in Indonesia, TNCs are most commonly located in a developed country, while their human rights abuses occur in the developing countries in which they operate. In an effort to attract and maintain foreign investment, developing country governments often look the other way when faced with the human rights abuses committed by TNCs. In many cases, a repressive and corrupt regime may personally gain from their business and they often use violent means to ensure their operations continue undisturbed.

As the role played by TNCs in human rights abuses has become more apparent, so have efforts to stem these abuses. However, it is very difficult to hold TNCs accountable for their actions because they often fall through loopholes in international law. Not a state or an individual, TNCs cannot be prosecuted in an international forum, including the newly created International Criminal Court. Thus far, the most successful tools against them have been public pressure in the form of boycotts and negative publicity, which can lead to a loss in their profit margin.

Thus, human rights advocates and corporate watchdogs have increasingly come to understand the opportunity that the ATCA affords until a proper multi-lateral treaty concerning TNCs is adopted. An uphill battle, US judges have also been slow to accept cases against corporations under the ATCA. In 1989, a case against Union Carbide for their responsibility in causing thousands of deaths and permanent health problems from a gas leak in their factory in Bhopal, India was rejected. It was not until 1997—when UNOCAL was sued for their human rights violations in Burma—that the first case against a corporation was accepted under the ATCA:

This opened the floodgates for many similar cases. The 11 Aceh villagers from Indonesia are now among a growing number of foreigners seeking justice against TNCs in US courts. These cases include a suit against Coca-Cola for their complicity in the murder and intimidation of union members from their Colombian factory and a suit filed by the family of late Ogoni activist Ken Saro-Wiwa against Royal Dutch Petroleum for their complicity in the execution of Wiwa by the Nigerian government. The rapid pace of change has even encouraged a renewed attempt to file a suit against Union Carbide for the Bhopal disaster.

Limitations of the Alien Tort Claims Act

As promising as the ATCA sounds, there are still a number of obstacles in using it against corporate actors.

To be tried under the ATCA, the corporations must have "sufficient contact" in the US for a US court to have jurisdiction to try them. "Sufficient contact" can be in the form of an investor relations office in one of the fifty states or a broad advertising and marketing campaign to US citizens.

In addition, the types of crimes that can be brought under the ATCA are limited even within the scope of international law. Only those of the most universally accepted and offensive in nature are usually permitted, such as genocide and torture.

At this time, cases against TNCs using the ATCA have not yet reached the trial stage. If and when they do reach trial, they face enormous obstacles in reaching a guilty verdict. A potential case against the diamond company DeBeers for their complicity in the ongoing conflicts in Angola and Sierra Leone in order to buy diamonds from armed rebel groups is restricted by the high amount of factual evidence required by the court. This is can be extremely difficult and almost impossible to obtain.

If these cases succeed in reaching trial and winning a guilty verdict, they could merit the victims' awards in the millions and provide a true deterrent against future abuse by corporations. Until that day, these cases are still important in bringing unwanted attention and publicity to corporate actions that may convince TNC heads to change their practices.

On the other hand, there is always the fear that such cases could also bring about reprisals against those filing suit. For example, in the suit filed by the United Steelworkers against Coca-Cola involving the murder of trade union members in Colombia, there are real fears that the lawsuit may lead to increased repression. However, the benefits of the publicity and the need to take action usually overwhelm these fears. As one trade unionist stated, "It's either we get killed doing nothing, or we get killed doing something. We'd rather do something."

Overall, the ATCA provides victims and their families with the opportunity to obtain some sense of justice and the feeling that something is being done to rectify the situation no matter how unlikely a trial or guilty verdict is at this time.

The recent statements by the US government in their efforts to block the ExxonMobil case may signal a significant step away from holding corporations accountable. The fact that ExxonMobil, a large contributor to the Republican party, requested the government to block the lawsuit serves to highlight the real power that corporations hold in today's world. They can easily undermine attempts to hold them accountable for their actions. It is perhaps only through a multi-lateral treaty or inclusion in the International Criminal Court that such rogue corporations can be captured under the jurisdiction of international law.

More General Analysis on Transnational Corporations

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