03 | 07
2012

Mohamad v. Palestinian Authority, the concept of corporate accountability

Categories: Accountability, Corporate profit, Corporate responsibility, Corruption, Culture, Equality, Globalisation, Human Rights, International Law, Rule of Law, Shared humanity

by: Bakchos
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This case arises from the petitioners’ claim that Azzam Rahim was detained, tortured, and killed by “the security forces of the Palestinian Authority” in late 1995, around the time the Palestinian Authority assumed responsibility for certain territories pursuant to internationally brokered peace agreements.

The Palestinian Authority had its genesis in the 1993 Oslo Accords, in which Israel and the Palestine Liberation Organization (“PLO”) agreed that it was:

time to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement. Declaration of Principles on Interim Self-Government Arrangements

Further the parties agreed “to establish a Palestinian Interim Self-Government Authority for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period” until a permanent resolution could be reached.

Under the first of those agreements, signed in 1994, the Israeli Civil Administration transferred most of its authority over civil affairs in the Jericho Area of the West Bank and the Gaza Strip to the Palestinian Authority. Israel remained responsible for the security of Israelis and Israeli settlements, but responsibility for public order and the internal security of Palestinians in those areas was transferred to the Palestinian Directorate of Police Force, operating under the auspices of the Palestinian Authority.

According to the complaint, Azzam Rahim was kidnapped, tortured, and killed by “the security forces of the Palestinian Authority.” Specifically, the complaint alleges that on September 27, 1995, Rahim was abducted from a West Bank village by “plain clothes men who identified themselves as security police” and took him “to a prison in Jericho” where he was “tortured.” Two days later, an ambulance delivered Rahim’s body to the village.

The complaint named the Palestinian Authority and PLO as defendants, as well as Jabril Rajoub, identified as “head of the Palestinian Preventive Security Force in the West Bank,” and two other individuals identified as senior Palestinian security officials.

The complaint’s case is premised on the assertion that the aforementioned acts of torture and extrajudicial killing were:

carried out pursuant to a general policy of the Palestinian Authority and the PLO’s leadership that is designed to terrorize the Palestinian population and to ensure that an elite Palestinian leadership circle is able to maintain power at all costs.

Ten years after Rahim’s death, the petitioners (Rahim’s widow and sons) brought an action in the United States District Court for the Southern District of New York seeking damages under the Torture Victim Protection Act, 28 U.S.C. § 1350 (“TVPA”).

The U.S. District Court for the District of Columbia dismiss, the petitioner’s case ruling that the TVPA, by providing a cause of action only against “individual[s],” restricted liability to natural persons. In its reasons for decision the District Court held that:

A plain reading of the statute and the applicable case law…leads this Court to overwhelmingly conclude that the term ‘individual’ includes only human beings…Simply stated, Congress’s plain intent as reflected in the text (which specifies only individuals) and the legislative history (which could not be clearer) was to confine liability for acts of torture and extrajudicial killing to private individuals.

The United States court of appeals (Ginsburg, Tatel & Garland, JJ.) affirmed the District Courts decision, ruling that because the TVPA does not define “individual,” the term must be “give[n] its ordinary meaning, which typically encompasses only natural persons and not corporations or other organizations.”

The issue before the United States Supreme Court (“USSC”) is whether the TVPA, which authorizes actions against an “individual” who commits acts of torture or extrajudicial killing, permits actions against defendants that are not natural persons.

The USSC will determine whether legal entities, including organizations and corporations, are liable for torture and extrajudicial killings under the TVPA. Petitioner, Asid Mohamad, argues that the TVPA applies to non-state organizations as well as individual human beings. Respondents, the Palestinian Organizations, argue that the word “individual” in the law means that victims can only sue natural persons.

Oral argument before the USSC: February 28, 2012

Amici Juan Mendez, the U.N. Special Rapporteur on Torture, and former Senator Arlen Specter, argue that failure to hold legal entities liable for torture would result in victims having no legal recourse against their torturers in the U.S. Mohamad notes that many victims do not know the person who performed the actual act of torture, while organizations often take credit for these acts. Mohamad also asserts that individuals, unlike corporations, often will not have sufficient contacts with the U.S. to enable courts to have jurisdiction over them, and, further, even if sufficient contacts could be established, individuals will seldom have sufficient assets to pay damages. Mendez argues that suits against legal entities are necessary to eradicate torture, and that reading the TVPA to forbid such suits would undermine state obligations to achieve this goal. Mendez asserts that preventing suits against legal entities would result in amnesty for torture and extrajudicial killing, because of the ease with which torturers could structure their organizations to avoid liability.

The Palestinian Organizations argue that exempting groups from liability would not unduly limit the legal remedies of victims, because the TVPA is already limited in its application; the TVPA only encompasses actions committed under the color of law. The Palestinian Organizations assert that the TVPA already exempts actions carried out by private groups, such as terrorist organizations, and that refusing to apply the TVPA to groups like the Palestinian Organizations would not significantly curtail the scope of the TVPA. Moreover, the Palestinian Organizations contend that victims can often identify the officials who authorized acts of torture, and will be able to file suit against those persons.

The Palestinian Organizations argue that the Court should construe the TVPA narrowly to avoid creating foreign policy problems. The Palestinian Organizations argue that broad interpretations of the TVPA threaten important foreign policy interests: Mohamad’s interpretation would impose American law on extraterritorial acts. The American Petroleum Institute (“API”) additionally argues that allowing liability for corporations under the TVPA would discourage corporations from investing in less developed countries. API argues that, without such investments, such countries cannot grow their economies, and will find political stability more difficult to achieve. The API further believes that allowing such suits would prevent foreign investment in the U.S., as companies would avoid developing contacts that might subject them to suit.

However, Joseph E. Stiglitz, an economics professor and expert in economic theory and global economic development, denies that corporate liability under the TVPA would be bad for businesses. He asserts that, in a modern economy, tort law provides necessary incentives for corporations to monitor their employees’ behavior. Further, Stiglitz cites studies showing that corporate liability under the Alien Tort Statute has not reduced investment in less developed countries. Instead, he contends that studies show a correlation between respect for civil liberties and human rights and improved economic performance. He also notes that many “corporate good citizens,” corporations whose behavior already comports with the TVPA, will actually gain an advantage by no longer having to compete with corporations that lack their moral scruples.

The API argument: a matter of concern

The API argues among other things that allowing liability for corporations under the TVPA would discourage corporations from investing in less developed countries, which in turn would result in economic stagnation and political instability in those countries. API’s arguments are directly refuted by Professor Stiglitz who cites studies showing that corporate liability under the Alien Tort Statute has not reduced investment in less developed countries. Erudite as these competing arguments may be, the indisputable fact remains, at the center of all this debate, erudition and grandstanding are human beings, natural resources, greed and corruption.

If we accept the API and Palestinian Organizations arguments that the definition of natural persons under the TVPA cannot extend to corporations, where does this leave those who are or may become in the future, victims of corporate torture, whether in the Palestinian Territories or in other parts of the world? Specifically, I’m referring to resource rich indigenous people who are continuously and universally exploited by unscrupulous multi-nationals, aided and abetted by governments more concerned with self-interest and personal gain than human rights.

As Florian Wettstein discusses in the introduction her paper Silence as Complicity: Elements of a Corporate Duty to Speak Out against the Violation of Human Rights; in an increasingly interconnected world our actions affect the lives of others in ever more profound ways, thus, increasingly we may contribute to harm without being aware of it, or at least without intending to do so. It is in the very nature of complicity that it falls outside the paradigm of individual, intentional wrongdoing the problem deepens if we are not merely looking at the actions of individuals, but at those of organizations that operate globally and on a large scale, such as multinational corporations. Corporations may become complicit in human rights violations although they are not doing anything wrong in a conventional sense or engaging in any unlawful conduct they may simply be going about their business. This contributes to the pervasiveness of corporate complicity and renders it notoriously hard to grasp and, not least, to condemn. The very nature of wrongdoing is changing in the process of today’s globalization.

Is it moral and just to allow corporations to escape penalty for what an individual would be held accountable for? Is it fair to allow wrongdoers to hide behind the corporate veil? Kelly Lendsay from the Aboriginal Human Resource Council, as quoted on the CSR Blog reasons that it’s important to view inclusion as a shared value opportunity:

By building partnerships of respect, investing in ways that help Indigenous communities and people build supply channels and skilled workers, and learning best practices to recruit, retain and advance the indigenous workforce, corporations can create new business opportunities and increase their bottom line.

If best practice in resource development argues for inclusion as a shared value opportunity, what justification can there possibly be for exempting corporations from laws and penalties that apply to individuals? If a multi-national corporation operating in an unstable or contested country or region, such as Papua, adheres to the principle of inclusion as a shared value opportunity, what does it have to fear from accountability? However, if a corporation puts profits before people and engages in conduct that would amount to human rights violations under the TVPA if it were a natural person, why should it escape liability just because it is a corporation?

Indeed as Professor Stiglitz points out, corporations whose behavior already comports with the TVPA will actually gain an advantage by no longer having to compete with corporations that lack their moral scruples. Far from disadvantaging developing countries holding, a corporation liable to the same standards as a natural person under the TVPA has the potential to increase both accountability and performance by leveling the playing field.

After all according to The North South Institute, “the root of [most] conflict is the enormous power imbalance between communities on one hand, and companies and governments on the other”. Generally countries with this type of power imbalance lack legislation that protects the rights of indigenous people. Many developing countries have inconsistent policies that fail to balance human rights with mining rights. If a foreign multi-national can gain profit at the expense of another’s human rights, why then should it escape liability for those violations, just because it is not a natural person?

The API argument and the outsourcing of war

According to Amnesty International people working for private military and security companies (“PMSCs”) have been accused of engaging in a number of human rights violations including the abuse and torture of detainees, shootings and killings of innocent civilians, destruction of property, sexual harassment and rape, human trafficking in the recruitment of third-country nationals, weapons proliferation, and participation in renditions.

In fact in June 2011 the USSC declined without comment the case of 250 former Abu Ghraib detainees whose lawsuit against private contractors, for allegedly abusing and torturing Abu Ghraib inmates, had been thrown out of federal court.

After employees of two companies Titan (L3) and CACI were implicated by the US Army in two investigations in the infamous torture and abuse of detainees at Abu Ghraib in 2003 and 2004, the Center for Constitutional Rights brought a lawsuit against the companies on behalf of 250 victims of abuse using the Alien Tort Statute (“ATS”). The ATS allows non-US citizens to sue in US federal courts for a violation of international law.

The case was dismissed by an appeals court in a 2-1 ruling wherein the two judge majority first attacked the reach of the ATS, saying the former Iraqi detainees were not empowered to challenge a corporation since torture committed by a private contractor is not a violation of a settled international norm.

The judges then further precluded the claims by invoking a doctrine of “battlefield pre-emption,” whereby tort claims against a contractor cannot proceed if that contractor is integrated into combatant activities over which the military retains command authority. However, the U.S. Army has denied that it had this type of command and control authority and Titan and CACI at the time were operating under a Department of the Interior contract. The Supreme Court’s decision allows the Appeals Court decision to stand, offering a clear blow to human rights protections and corporate accountability for abuses.

It’s not just in territories administered by the Palestinian Authority that crimes such as torture and extrajudicial killings occur. In our privatised world, where everything from prisons to war is being outsourced to private contractors, corporate human rights violations are bound to become more common. If we accept ACI’s argument that the term “individual(s)” as used in the TVPA cannot extend to corporations, then current and future victims of corporate greed and non-accountability will find themselves with any form of legal redress, in the increasingly outsourced global environment in which we all find ourselves living.

In the words of former Australian Federal Police Commissioner Mick Keelty:

If the criminal justice system is corrupted, or otherwise interfered with, a community is left with few options, the least desirable of those options is for them to take the law into their own hand

If we look at the factual situation in the lawsuit against Titan (L3) and CACI objectively, it is not unreasonable to conclude that the legal system in which this matter was prosecuted had been corrupted, or otherwise interfered with, perhaps in this case not by politicians, but by community prejudice. Where does this leave the victims? With few options, the least desirable of those options is for them to take the law into their own hand. Not a good recipe for achieving investment and political stability in developing countries.

Will you sign the petition calling for a Royal Commission into the Australian Federal Police?

26 Comments

  1. Hey Bro, do you think that there is a possibility of us being able to use the ATS or the TPVA to deal with the likes of Twiggy Forrest and Clive Palmer? Shit they are digging up our resources, destroying our sacred sites and culture all in the name of whitie progress. What do we get out of it? Income management under the Stronger Futures Bill, what a fuckin’ joke. As you have argues before this is nothing more or less than genocide by stealth~!!!!

  2. Oi Andy Mason fuck load of good winging is going to do us, while the do-gooders are proposing Income management for us, because were toooooooooo primitive to control our own destiny, the two over weight goons who control mining in this country (you know who I mean) are stealing everything out from under us. And it ain’t just us, there doing it to whitie as well, they’ll wake up soon enough, but by then it’ll all be way too late and Palmer would have sold Oz to the Chinese. Way to go bro!

  3. Mick Madden ya can crap on as much as ya like, without some sort of international intervention, as a group we are fucked. If not the Yanks, where? Do you have any solutions beyond ya bellyaching?

  4. Mick Madden don’t tell me I’m crapping on, every day we are losing more and more of our rights and culture to white fellas greed. Fuck, they even steal from themselves, look at what the ALP did to ACT Treasury, why do you think they’ll treat us any better. Its time for action, direct action, not this bullshit that whitie calls the law. Give us justice not ‘just-us’ or fuck off!

  5. Andy Mason, Mick Madden I can see that you are both ‘pissed’ about way whitie is doing to our land and environment, but the only way to deal with whitie is via his own systems, i.e. the law. I know our bro got fucked by the system in Treasury, but if we can focus international attention on our issues, by embracing like issues elsewhere in the world, we have a fighting chance. Without unity we’ll surely fail, with unity, we at least have a chance.

  6. Mahmud Ahsan via Facebook says:

    All’ah be praised for the small mercies he shows us. This is one of those rear occasions when Bakchos Sally Glass is perhaps correct. Without unity in a cause, the cause is doomed from the very start. What you all need to do is confront ‘whitie’ head-on, challenge him on his own turf, show the world what really happens in Australia, then you might get somewhere!

  7. Guys and Mahmud Ahsan what the post is about is corporate responsibility. I know that many Indigenous Australians believe, and probably correctly, that they have been robbed by the system. But as Mahmud has said, without unity any cause you embrace is doomed. Why not look at what options may present in the international arena. ATS is probably not one of those options, but there may be others.

  8. Andy Mason you’re right the issues confronting Aboriginal Australia MUST I say MUST be internationalised before any headway can be made. I’m not sure the US courts are the way to go, though some of the corporations impacting on Aborigines in a negative way would have a US connection. The better way is positive publicity for the Aboriginal cause in the international media.

  9. All I’m saying is that Aborigines have to stand up and speak with one voice about what is being done to our heritage and culture by the mining companies! It has to stop, NOW!!

  10. Every minute of every day more and more of our land, our culture and our Dreaming is being dug up and shipped to China to further fatten the already obese. How in any true meaning of the word can this be seen as justice? It isn’t. Then to add insult to the injuries of rape, theft and genocide want to impose compulsory income management on us. Get fucked is all I can say on this issue.

  11. Do I dare say a word on this one? I will! I agree with the others who have commented here and have said that the only way to achieve justice for Aboriginal Australia is through international pressure. The issues have to be internationalised. Easier said than done I know, but it has to be done. There is and there probably never will be justice in Australia for Aboriginal Australians, it’s going to need to be won at the hands of the international community.

  12. Bill Coe I personally feel for your plight and the plight of every Aboriginal person who daily has to witness the destruction of their culture and community at the hands on the miners. As Tamara Ann Wooden said, there is no justice in Australia for Aborigines, just ask the former Commissioner for ACT Revenue. The issues have to be internationalised and internationalised now, tomorrow may be too late. I must agree with Bill Wheatley on the point of using the US justice system. I don’t believe that to be an option, there are other ways – good, positive publicity in the international arena is the way to go.

  13. I lived in Israel for a long time, leaving aside prejudice, what I learned is that if you want your rights badly enough, you’re going to end up fighting for them, or you will be denied them. I’m not suggesting that Aborigines take up arms, what I am suggesting is that they stand united, speak with one voice and tell the world what is happening, really happening in Australia. It will take courage and perseverance, and the rewards may be greater than many believe possible.

  14. GiDay Sharon Coc you seem to be the only one here who really understands what it’s ging to take to get some justice instead of ‘just-us’ for Aboriginal Australians. We’re going to have to take our justice at the point of a spear. Now that spear might be the international media, or it might be the US justice system, whatever form it takes, justice is not going to be given to us freely by a racist and corrupt Australian Government and people. Will we have to fight? I hope not, but I’m ready.

  15. Uncle Mick Glass give me a bit of pipe or a bat and I’ll be by your side. For Bismark it was blood and iron, for me it’s pipes and bats. Aborigines have had it rough for too long, this is the season for action. Preferably non-violent action, but pipes and bats if it has to be.

  16. Estelle Dunlop wy to go sister!

  17. Estelle Dunlop and you look so sweet in your picture! There has to be a better way than pipes and bates. I’m talking peaceful and lawful here. Interesting to see what happens when the ALP totally stuffs the economy though, maybe then???

  18. Something has to be done about the way we are being treated in our own country. First it was genocide in the name of land, now it’s genocide in the name of what is beneath the land, soon it will be us, all of us beneath the land unless we get some justice and meaningful justice at that.

  19. Estelle Dunlop did we meet at the Freedom Fighters Ball? If not, I’m sure there is a ticket for you this year. Though I think pipes and bats are a bit drastic at this stage. What we should be doing is exploring the options to get the issues confronting Aboriginal Australia into the public areana ASAP. The US justice system is not a viable option. However holding corporate miners accountable to the international community might be. We have to concentrate of fighting where we have a trategic advantage. International public opinion is where that strategic advantage is.

  20. Paulo Flores can I come to the Freedom Fighters Ball? What I would like to know is what the federal government intends to do about the miners here. Really they are destroying the economy. Hell they are even planning on mining the Great Barrier Reef. Have you seen the GetUp petition on this? This is the URL http://www.getup.org.au/campaigns/coal-seam-gas/unesco-great-barrier-reef/sign-the-petition?t=dXNlcmlkPTY2ODA5NSxlbWFpbGlkPTYwNw==

  21. Hi Felicity Keen hopefully UNESCO can bring some sense to the miners in this country, nobody else appears able to! Thanks for the link. Now is the time for some corporate accountability. As you said what is the Oz Govt. going to do about the miners. Lets all sign a petition and ask Swan!

  22. Anne Shiny via Facebook says:

    Given that Wayne Swan has pointed the finger specifically at Andrew Forrest, Among other mining magnates, I’ve been asking what he intends to do about the Yindjibarndi-FMG stoush.

  23. Anne that is a very good question and one that I would like to know the answer to. My guess that he is a lick-spittle like his boss! What this country really needs is true leadership, not the bullshit were being fed at the moment. Why don’t we all make a stand and demand leadership and accountability!!!!!!

  24. Guys what everybody has missed or at least not commented about regarding this post is the Titan CACA case which is under the heading The API argument and the outsourcing of war. Really when you think about it, if combat duties are outsourced and as the USCA found that torture committed by a private contractor is not a violation of a settled international norm, what protections are there for those who have their human rights violated by a private corporation involved in combat operations?

  25. Paulo Flores very good point, what protections are there and how far has the outsourcing of war gone? Have we in the West become so morally bankrupt that we are now going to rely on mercenaries to keep the oppressed of the developing word oppressed. Remember ROME my friends, remember Rome!

  26. Paulo Flores I also believe that the Titan CACA case in the real issue in this post.

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