Richard Tanter
Three civil cases currently before United States courts represent a promising new challenge to the longstanding impunity that military regimes in Southeast Asia have felt when using terror to control politics in their countries. In each case, local citizens have linked up with US non-government organizations to bring cases for damages against either powerful US-based companies operating under the umbrella of military terror, or against individual military officers who carried out the terror. How successful each case will ultimately be is not yet clear. What is quite clear is that initial successes in each case have been sufficiently threatening to the corporations and governments involved in the terror to respond to a threat they had initially dismissed as beneath their contempt.
A California judge has allowed a civil case brought by Burmese citizens against Unocal, one of the largest oil and gas companies in the world, to proceed to trial. A US district court judge in 2001 ruled that Unocal knew that the Burmese military was using forced labour and carried out torture and extra-legal executions to facilitate the construction of Unocal's Yadana natural gas pipeline. The judge also ruled that Unocal did not control the Burmese army, and hence under US federal law had no direct legal responsibility for the terror from which it benefited. The California case, however, is proceeding on a different issue: under California law, a partner in a business enterprise shares vicarious responsibility for the actions of its partners. This marks the first occasion on which a major US corporation has been brought to trial for its part in gross human rights violations perpetrated by a joint venture partner. The case will go to trial in September.
Citizens of Aceh are suing ExxonMobil for financially supporting elements of the Indonesian armed forces that employed extreme and illegal violence to protect Sumatra's Arun gas field and LNG production facilities. Exxon is presently attempting to prevent the case coming to trial, most recently by claiming that the US 'war against terror' would be impeded if the case against them proceeds. (See box)
In September 2001, a US district court awarded East Timorese plaintiffs damages amounting to US$66 million against TNI Lt-Gen. Johny Lumintang for his role in East Timor in 1999. After more than a year of demonstrating contempt for the US court proceedings, the Indonesian government and Lumintang, realising the wider implications of the ruling, have appealed, principally on technical grounds of jurisdiction. The appeal is proceeding. (See John Miller's article in the Inside Indonesia no 71).
These cases share a number of common elements:
Each relies on two pieces of US legislation: the Alien Tort Claims Act 1789 and the Torture Victim Protection Act (1991). These laws allow foreigners to sue individuals and corporations in US courts for damages resulting from actions outside the US, so long as the defendant has some substantive connection to the US.
Each case has resulted from a transnational political coalition of local citizens in Southeast Asian countries and North American activists and civil rights NGOs.
Even though each case may ultimately be lost at any point of the complex US court system, each has already succeeded to a considerable degree.
The Indonesian government has realised that unless it can win an appeal on technical grounds on Doe v. Lumintang, not only is it liable for a large damages payout, but Lumintang and other senior officials cannot visit the US without settling accounts. Moreover, as implied in the whole concept of punitive damages, the Doe v. Lumintang process will be repeated for others involved the Timor crimes or elsewhere in Indonesia.
The Unocal and Exxon cases have received wide publicity in the international business press. Shareholders and business journalists are unlikely to respond to calls for a shared humanity with the victims of Indonesian and Burmese army brutality, but they will respond quickly to avoidable threats to profitability and share price stability. As the Bloomberg News put it, 'Exxon Mobil's less-than-arm's length detachment from the military must be judged a short-term gain and a long-term miscalculation.'
The Exxon and Unocal cases are especially important because they demonstrate both the negative and positive aspects of globalisation. The Indonesian state continues to depend utterly for its survival on the political, economic and financial backing of the US and Japan and the major corporations of those countries. The fig leaf of demokrasi apart, Indonesian patronage politics is still hugely dependent on revenues from oil and gas exports and foreign aid. Indonesia is the world's largest liquid natural gas (LNG) exporter, supplying a third of global LNG trade - almost all of which is sent to Japan and South Korea. Aceh's gas and oil is vital to the Indonesian state.
Serious environmental problems have been a continuous feature of Exxon's Arun natural gas field since production began in 1978. Peaceful protests were from the beginning dealt with violently, fuelling local sympathies for autonomy or independence. Producing gas in Aceh at an acceptable price for the people and companies of Osaka and Seoul - and vast profits for Exxon Mobil's mainly US shareholders - has for more than two decades depended upon military terror, as the corporation has long known.
Foreign oil and gas companies subcontracting terror to the military is an aspect of globalisation that is neither unusual nor new. What is new is the willingness of citizens and organizations in the countries that supposedly benefit from this coercive flow of resources arguing through law that the standards of justice that apply in their own countries should be applied to the countries from which these resources are taken. If globalisation is at root about the transnationalisation of capital, then the Exxon and Unocal cases mark a small step in the transnationalisation of universal legal standards of justice.
The legal framework within which global politics and commerce is conducted is in transition. Although nation-states remain the dominant political form of organisation, their domestic legal systems cannot cope with the realities of transnational business. International law is expanding very rapidly to fill this gap - particularly in trade and the environment - where borders are relatively insignificant.
Effective international law on human rights and crimes against humanity is still weak, and the unilateral resistance of the Bush administration to the newly constituted International Criminal Court weakens it further. Under the ICC, member countries that discover those suspected of crimes against humanity in their countries, irrespective of where the crime was committed, must either prosecute them under their domestic laws, or extradite them to the ICC.
It is not yet known how effective the ICC will be. In the meantime, lawyers, prosecutors and citizens in a number of countries are applying existing national law to crimes of universal significance committed outside their own territory. The two most important cases to date have been the attempts by government prosecutors in Spain and Belgium to bring the former Chilean dictator Augusto Pinochet and the present Prime Minister of Israel Ariel Sharon, respectively, to trial. Although neither has succeeded to date, both cases have brought the issue of universal jurisdiction for certain heinous crimes to the forefront.
The current US cases are taking another approach. Instead of government prosecutors utilising a criminal code, private citizens brought these cases to civil trial for damages. Although imperfect and limited, they are an extremely important part of the slow but consistent pressure to establish universal standards of justice and universal jurisdiction.
Unfortunately, the Bush administration is the most unilateralist and brazenly pro-business (especially pro-mining) government for many decades in the US, and is highly likely to intervene politically to obviate any positive legal developments. US vice-president Dick Cheney, presently under suspicion for illegal activities as head of energy industry services company Halliburton, was involved in Halliburton's work on the Unocal Yadana pipeline. Exxon, the most rogue-like of the big oil companies, has been particularly active in sabotaging the Kyoto protocol.
Moreover, there are more fundamental problems in this otherwise commendable legal approach based on US law. If a future truly democratic Indonesian government passed laws that permitted the indictment of Henry Kissinger for his role in facilitating crimes against humanity in Cambodia, Angola, Indonesia and East Timor, is it imaginable that the US would allow his extradition for trial? The long-drawn-out resistance of the Libyan government to the trial of the Lockerbie aircraft bombing suspects would be nothing by comparison.
This makes the case for a multilateral global legal institution such as the ICC all the more compelling, and in time, another US administration will come in from the cold. In the meantime, we must rely on the opportunities provided by imperfect national legal systems to bring a measure of justice against the criminal officers and the companies who pay them.
Richard Tanter (rtanter@hotmail.com) teaches at Kyoto Seika University in Japan.
