Capitalism vs. Conscience

What’s a day in a fair and impartial court worth to an Indonesian man who was held captive and tortured for four months? Or a family from Papua New Guinea whose home was destroyed by a billion tons of waste from an open mine six miles wide?

Ask the Bush administration. It’s trying to take that right away. The administration has interceded repeatedly in diplomatically sensitive lawsuits on behalf of corporations accused of abusing human rights in developing nations.

The latest example is a Justice Department brief to a federal appellate court in California in a 7-year-old case against Unocal, an American-based oil and gas company.

The plaintiffs, villagers from Myanmar, formerly Burma, allege that Unocal colluded with the notorious military regime while building an oil pipeline to Thailand during the 1990s and tacitly approved soldiers’ use of forced labor, torture, rape and murder.

Although in September the U.S. 9th Circuit Court of Appeals delivered a landmark ruling for the plaintiffs -- the first of its kind against a corporation -- the case is now on appeal to a panel of that court.

The Justice Department’s brief argues for the dismissal of the case, saying that the Alien Tort Claims Act, under which the suit was brought, should no longer be interpreted to allow for redress of international human rights abuses in U.S. courts.

In August, the State Department had filed a brief in another oil company case, involving Exxon Mobil. Eleven Indonesians from embattled Aceh province sued Exxon for hiring Indonesian troops as its security guards; the troops allegedly tortured, raped and murdered.

The State Department argued that hearing the case could offend the Indonesian government and thus interfere with the making of U.S. foreign policy, traditionally the responsibility of the executive branch, not the courts, under the Constitution. The case is pending.

A third case involved a State Department brief in a suit against British mining firm Rio Tinto for recklessly operating a hugely profitable mine on the Papua New Guinea island of Bougainville, sparking a civil war in which 10,000 died. Relying on the State Department’s argument, the judge dismissed the charges, and Rio Tinto made a killing on its investment. Literally.

But it’s the Unocal brief that may have the most far-reaching effect. If the Justice Department has its way, the Alien Tort Claims Act -- which has long allowed foreigners to bring suit in U.S. courts for violations of international law and which has given hope to victims of human rights abuse around the world for decades -- will be no more.

By trumpeting the importance of human rights in public while quietly taking actions that shield the most egregious rights abusers from legal accountability, President Bush comes across as strong on human rights, without bearing the burden of sacrificing something for the cause.

If this administration truly cared about human rights values, it would praise the law for its ability to make abusers pay. It would abandon its line that human rights lawsuits ruffle too many diplomatic feathers, instead adopting a clear policy that U.S. courts must be tough on rights abusers and the governments that sponsor them. It would hold corporations to the ethical standards it has purported to support with rigor since a string of accounting scandals moved Bush to declare last July that “there is no capitalism without conscience.”

As it stands, however, the administration has made its position quite clear: Human rights are not the province of U.S. courts. It is now up to brave plaintiffs and their lawyers to convince the judges otherwise, so that justice can be done.

Michael O’Donnell is editor in chief of the Boston College Third World Law Journal.