By Ka Hsaw Wa
Among the thousands of interviews I've conducted as a human rights investigator over the last 24 years, one of the most difficult was in 1996, outside a refugee camp along the Thai-Burma border. I was no stranger to suffering in my country. I had fled from Burma (also known as Myanmar) just a few years before, escaping the brutal military regime after being arrested and tortured. I had gone to the camp to investigate reports that villages were being uprooted and brutalized to make way for a natural gas pipeline built by U.S. oil giant Unocal and other multinational corporations. There, I met a young mother from my Karen ethnic group whose baby had recently been killed by Burmese troops providing security for the pipeline.
That was Jane Doe, as she would later be known. She would go on to help establish the legal principle that U.S. corporations can be held liable for complicity in severe human rights abuses abroad. Now, a case being argued before the U.S. Supreme Court on Tuesday may mean that future Jane Does will have no such recourse against corporations.
Jane Doe 1 was a poor farmer whose great misfortune was that she was living in the path of the project when Unocal -- now owned by Chevron -- and its French and Thai corporate partners began building the pipeline. Their other partner was the Burmese military regime, and the corporations contracted with its army, despite its abhorrent human rights record, to provide security for the project.
The soldiers forced thousands of villagers to provide slave labor for the project. One of those villagers was Jane Doe's husband. As Jane Doe told me in the camp, the military forced her husband at gunpoint to clear the jungle and carry heavy loads. When he escaped, the soldiers came looking for him. They found Jane Doe instead, nursing her baby near a cooking fire. She told them she didn't know where her husband was. The soldiers beat her into unconsciousness and kicked her and her baby into the fire. Jane Doe recovered from her injuries; her baby died.
I remember trying to comfort her and thinking: How is it possible that foreign companies can come into Burma, hire a rogue army, make billions of dollars and have no responsibility for what their business partners do? There have been positive changes in Burma recently, but at that time, justice was impossible; the courts served the military. But Unocal was a U.S. company, and I had met American lawyers who believed that U.S. corporations were not above human rights laws.
And so, in 1996, Jane Doe 1 became a lead plaintiff in Doe vs. Unocal, a lawsuit filed in Los Angeles, where Unocal had its headquarters. The case was based on the U.S. Alien Tort Statute of 1789, which allows non-U.S. citizens to file lawsuits in the U.S. for violations of international law. Jane Doe's case was the first to apply that law to corporations accused of liability in human rights violations. In 2005, Unocal agreed to a settlement. The case has provided an underpinning for similar claims against corporations headquartered in the U.S. or doing business in the U.S., and thus it has helped victims of crimes against humanity gain some justice.
For example, in 2007 Yahoo agreed to compensate the families of two Chinese dissidents imprisoned after the Internet company provided their identifying information to the Chinese government, and in 2010 the military contractor Blackwater compensated the families of several Iraqi men allegedly killed by Blackwater guards.
But now, the use of the Alien Tort Statute in cases of alleged corporate liability in human rights cases has come under attack from big business. On Tuesday, the Supreme Court will hear arguments in Kiobel vs. Royal Dutch Petroleum. The plaintiffs are Nigerians who suffered abuse under a brutal military dictatorship in the mid-1990s; they sued Royal Dutch Petroleum, better known as Shell, over its alleged support of this violence. Shell is arguing that corporations are not responsible for human rights abuses under such circumstances; that individual employees who are complicit in torture, summary executions and other crimes against humanity can be held liable, but not corporations. An appeals court decided that international law, which is considered under the Alien Tort Statute, backed up that claim.
That decision misreads international law, which does not shield corporations from responsibility, and is a major setback for human rights cases based on Doe vs. Unocal. The justices will consider whether the U.S. will become a haven for companies that are allegedly complicit in the most heinous crimes or whether it will continue to provide a legal forum for accountability and justice.
The hardest part of my job is talking to the victims and survivors of human rights abuses. The only thing that I could offer to Jane Doe was hope -- hope that the perpetrators, including the corporations that enable and profit from such crimes, would be punished so that future abuses could be deterred; hope that by suing, she could prevent other mothers from losing a child.
In 1996, we didn't know what the outcome of our case would be. One of my proudest moments was telling Jane Doe that the U.S. courts would hear her case; that a poor woman from Burma would have a fair shot against a powerful American oil company. She and I knew that our lawsuit against Unocal would not bring her baby back. But we also knew that enforcing the law against corporations would mean such abuses might be prevented in the future. Never again, we thought, would a company think it could get away with murder.
The hardest thing I'll ever have to do is tell her we were wrong.
Ka Hsaw Wa is the cofounder and executive director of EarthRights International, which works for justice for victims of human rights and environmental abuses around the world.