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.
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