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India

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Executive Summary

 

International Crimes

Category I: Crimes Against Humanity

Category II: Forced Labor/Enslavement

Category III: War Crimes Part I

Category III: War Crimes Part II

Category IV: Torture

Category V: Genocide

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Business and International Crimes

 

Category II: Forced Labor/Enslavement

A. Overview
B. Cases involving economic actors and forced labor/enslavement
C. Forced Labor Defined
D. Elements of Crime Against Humanity of Enslavement

A. Overview

Forced labor or enslavement is currently encompassed within the prohibition on crimes against humanity as set forth in the Rome Statute of the International Criminal Court.
Business entities have been implicated as direct perpetrators with respect to the use of forced labor during wartime. In the wake of the second World War, German and Japanese industrialists were prosecuted before military tribunals for using civilian and military forced labor in factories, mines, and other sectors of private industry. The use of forced labor by these wartime enterprises was for economic profit. Although individual managers or directors were prosecuted for their role in seeking out and employing forced labor, the military tribunals assessed the role of the corporate enterprise as a whole in securing forced labor for private economic gain during the war. At the end of World War II, forced and slave laborers who had worked for German enterprises during the war pursued lawsuits in German courts seeking unpaid wages from various corporations. More recently, German and Japanese forced and slave laborers have brought civil lawsuits against German and Japanese multinationals pursuant to the Alien Tort Claims Act, based on those corporations’ use of forced labor during World War II.


Some business entities have been implicated in the use of forced labor as accomplices rather than perpetrators. The pending litigation against Unocal Corporation, for example, alleges that Unocal was an accomplice to the Myanmar military government’s forced conscription of its civilian population to build roads and other infrastructure for a joint venture pipeline project in Burma. Some financial institutions have also been sued under the Alien Tort Claims Act for providing loans or assistance to the Nazis or the apartheid government in South Africa—thus aiding and abetting forced labor perpetrated by certain repressive regimes.

B. Cases involving economic actors and forced labor/enslavement

NAZI GERMANY

1. U.S. v. Krauch, et. al, (The I.G. Farben Case)
VIII Trials of War Criminals Before the Nuremberg Military Tribunals, iii-iv (1952)

Crimes: Plunder, forced labor

Summary: In 1947, twenty-three employees of I.G. Farben were indicted for plunder, slavery, and complicity in aggression and mass murder. I.G. Farben was a major German chemical and pharmaceutical manufacturer that both took control of factories in Nazi occupied territories and employed concentration camp labor in its factories. Twelve of those indicted were convicted either for plunder or slave labor. One was convicted on both charges. This case marked the first time that a court attempted to impose liability on a group of persons collectively in charge of a company.

2. United States v. Friedrich Flick
VI Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950)

Crimes: Forced labor, plunder and spoliation, accessory to and aiding and abetting murder, cruelties, brutalities, torture, atrocities, and other inhumane acts, slave labor, the spoliation of property, the seizure of Jewish mining and industrial properties, and accessory liability for the actions of the Security Police (SS).

Summary: Friedrich Flick and five leading officials of his Flick concern were indicted on charges of slave labor, plunder and spoliation, seizure of Jewish mining and industrial properties, and being accessory to actions of the German SS. Three of the accused were convicted on different counts including counts of slave labor, plunder and spoliation, and being accessory to, aiding and abetting, and membership in the SS. The criminal activities of the SS included murder, brutalities, cruelties, tortures, atrocities, and other inhuman acts. The tribunal ruled that: “One who knowingly by his influence and money contributes to the support thereof must, under settled legal principals, be deemed to be, if not a principal, certainly and accessory to such crimes.” In convicting Flick and one of his officials on the count of aiding and abetting, the tribunal noted that the two individuals contributed annually to an industrial fund that supported the officers and activities of the S.S.


3. United States v. Alfried Krupp
IX Trials of War Criminals Before the Nuremberg Military Tribunal at 1327 (1949)

Crimes: Plunder, deportation, forced labor.

Summary: The Krupp Firm: The Krupp case involved the prosecution of twelve defendants for commission of war crimes and crimes against humanity with respect to plunder and spoliation of civilian property and factories in occupied territories, and also in the deportation of and use of prisoners of war and concentration camp inmates as forced laborers in various Krupp factories in Germany. Eleven of the twelve defendants were convicted and sentenced by the United States military tribunal.

German Forced Labor Compensation Claims

A number of civil claims for forced labor compensation were brought against German companies in the decades following the end of World War II. The following accounts of those cases and settlements all come from Benjamin B. Ferencz’s Less Than Slaves.

The Wollheim Settlement

The first successful claim was brought by Norbert Wollheim, a survivor of I.G. Farben’s Buna manufacturing plant at Auschwitz. Upset by the lenient sentences received by the Farben directors at the Nuremberg war criminal trials, Wollheim filed suit against the company in Frankfurt District Court for DM 10,000. He alleged that he, his wife, and three-year old son had been arrested in Berlin and then shipped to the concentration camp at Auschwitz. Wollheim worked in Farben’s plant for 22-months. Wollheim claimed that he and his fellow Buna plant workers were mistreated, starved, and forced to work under constant threat of death.

Farben did not deny its use of inmate labor but argued that it had done so only out of its duty to the government. The company further claimed that the fate and welfare of the laborers were ultimately the responsibility of the SS and the Nazi Party. On June 10, 1953, after a year of trial and deliberation, the Frankfurt court ruled in favor of Wollheim on the basis of German law:

The fundamental principles of equality, justice and humanity must have been known to all civilized persons, and the IG corporation cannot evade its responsibility any more than can an individual . . . They must have known of the ‘selections’ for it was their human duty to know the conditions of their employees. Their alleged total lack of knowledge merely confirms their lack of interest in the lives of the Jewish prisoners for whom they had a duty of care, at least during the time inmates were in their power. There was a duty to do what they could to protect the life, body and health of the plaintiff, and not even the SS could free them from that duty—which they failed to carry out. For that failure, which was at least negligent, the company is liable.

An increasing number of claims encouraged by the favorable ruling and Farben’s negative posture toward the case brought the Conference on Jewish Material Claims against Germany (the “Claims Conference”) into the dispute. The Claims Conference, which had been formed for other purposes, decided to negotiate on behalf of the survivors. Negotiations proceeded with the case on appeal. The German appellate court reviewing the Wollheim case, after first requesting further evidence, ordered the parties to consider a settlement. The court’s order, without taking a position on Farben’s legal stance, stated that the company “should be aware that certain injustices had occurred before its eyes and should make an offer within its capacity to pay.” Farben ultimately settled with the Claims Conference for DM 30 million but denied any legal liability. The DM 30 million was intended to cover 5,000 claims.

Additional Settlements

Following the Wollheim case, the Claims Conference began negotiations with other German companies known to have employed forced laborers during World War II. The settlements and their companies were:

 

  • The Krupp Concern: The Claim Conference’s efforts resulted in a December 1959 settlement of DM 10 million. Records show that 3,090 claimants received roughly DM 3,300 each, which at the time was worth $825. The Krupp Concern is thought to have employed thousands of concentration camp inmates at several locations to manufacture armaments for the German army.

  • Telefunken and AEG: During the summer of 1960, AEG came to a secret settlement with the Claims Conference on behalf of itself and Telefunken, which it had acquired in 1941. Both electric companies had employed concentration camp inmates in their factories during the war. The parties settled for DM 4 million. The amount was split between 2,223 claimants.

  • Siemens: Siemens, one of the largest electrical concerns in the world, settled with the Claims Conference in May of 1962 for DM 7 million. A total of 2,203 claimants received DM 3,300 each. Siemens had employed forced laborers at dozens of sites drawn from dozens of concentration camps.

  • Rheinmetall: Rheinmetall Berlin A.G. was the second largest armaments producer for the Third Reich and had employed forced laborers in its munitions plants. Two plaintiffs brought suit in the German courts at the end of 1957 seeking compensation from the company. The case ultimately reached the German Supreme Court. The Court dismissed the plaintiffs’ claims as reparations claims barred by the London Debt Agreement until Germany signed a final peace treaty. Yet, helped by political pressure related to a large, pending U.S. Department of Defense contract with Rheinmetall, the Claims Conference was able to obtain a settlement from the company for DM 2.5 million in May of 1966. The settlement paid a total of 1,507 claimants DM 1,700 each. At the time, DM 1,700 was worth a mere $425.

  • Friedrich Flick: In the spring of 1964, the Claims Conference came to a DM 5 million settlement with a representative of the infamous Frederich Flick. However, the money, which was to be paid by May 1, 1964 at the latest, never arrived. Flick was the primary owner of a 300-plus company conglomerate that included the Daimler-Benz automobile company. Many of Flick’s companies had used concentration camp laborer during the war. Flick himself was tried at Nuremberg for spoliation, the use of slave labor, and support of a criminal organization and was sentenced to seven years in prison. The Conference attempted to obtain payment for the laborers until Flick’s death in July 20, 1972. Flick, who lived to the age of 90, left a fortune worth more than $1 billion to his son.

Other Cases

  • Diamant v. Büssing: Adolf Diamant brought suit against the Büssing Company in the summer of 1965, seeking compensation for the labor he performed as a prisoner at the Neuengamme concentration camp. Büssing had employed concentration camp labor at its Braunschweig (Brunswick) plant to manufacture trucks for the Germany army. Büssing’s primary defense was that it had already paid the SS for Diamant’s labor and that Diamant should seek compensation not from them, but from the German government. The Braunschweig District Court did not find the argument persuasive. It held that the contract between Büssing and the SS was null and void because the SS was not entitled to sell the labor of individuals unlawfully deprived of their freedom. The court ordered Büssing to compensate Diamant for his labor under the German juridical principle of Geschäftsführung ohne Auftrag, which requires those knowingly accepting another’s labor to pay compensation for the benefit derived from that labor. Diamant’s victory was primarily a moral one—under the wartime wage control and currency conversion laws employed by the court to calculate the compensation owed, Diamant received the equivalent of $44.45 for his estimated 1,778 hours of work as a slave laborer.
    · Bartl v. Heinkel: In 1959, Dr. Edmund Bartl brought a suit against the aircraft manufacturer Ernst Heinkel A.G. in Augsburg District Court. Dr. Bartl worked in Heinkel’s Oranienburg factory for 24 months while a prisoner at the Sachsenhausen concentration camp. In addition to his claims for compensation, Dr. Bartl also requested damages for pain and suffering. The Augsburg District Court held for Bartl on his compensation claim but ruled that claim for pain and suffering was time-barred. On appeal, the Stuttgart Appellate Court upheld the lower court’s compensation order and reversed on the pain and suffering claims. The appellate court held that the Heinkel company was liable for the foreseeable negligent acts of its agents and that the company had the power and duty to prevent its supervisors from mistreating the laborers:

  • This obvious humane duty towards those prisoners who were given over to their custody is not only a moral but also a legal obligation. In both directions, in making things easier and in preventing additional burdens, the managers of the company did next to nothing.

  • Heinkel again appealed, this time to the German Supreme Court. Germany’s highest court dismissed all of Bartl claims on grounds that he had filed them too late. The Stuttgart Appellate Court allowed Bartl’s claims reasoning that he had been reasonably diligent in tracking down the company after the war. The Supreme Court disagreed. It held that as a German citizen Bartl should have known his rights and filed his case within the normal time period. Bartl, as customary under German law, was ordered to pay court costs and attorney fees.

  • BRABRAG: Braunkohle-Benzin A.G. (BRABRAG) manufactured synthetic fuel from lignite at four different plants during the war and is thought to have been one of the largest users of concentration camp labor. The Claims Conference filed four test cases in Berlin District Court at the end of 1957 on behalf of over 500 survivors who worked in BRABRAG’s factories. The plaintiffs offered to produce over sixty witnesses who could describe the appalling conditions the BRABRAG workers were subjected to including torture and murder. Yet the Claims Conference, discouraged by the negative decisions of the German Supreme Court in other slave labor cases, chose to drop the cases and concentrate its resources elsewhere.

  • The Construction Companies: Several of Germany’s major construction companies employed concentration camp inmates for their wartime projects. After the war, many of the construction companies prospered during the reconstruction of the country’s cities and infrastructure. None of the companies would acknowledge responsibility to their former forced laborers. The Claims Conference filed two test cases against one of the companies, Philipp Holzman, in Frankfurt District Court during the fall of 1964. The Frankfurt court encouraged Holzman to settle but the company refused. With its hands tied by the German Supreme Court, the Frankfurt court dismissed the case but did not force the plaintiffs to pay court costs or attorney fees. A similar case against the Munich company Leonhard Moll ended with the same result.

  • In Austria, a Hungarian plaintiff brought a case for compensation against the Austrian construction firms of H. Rella and A. Porr. The two firms had employed laborers from the Auschwitz concentration camp in a copper mine that supplied construction projects in Yugoslavia. The plaintiff’s claims were dismissed by the Austrian court on grounds that the firms paid the SS more than what the workers’ labor was worth. In the court’s estimation, it was the construction companies and not the laborers who had been the victims of the forced labor system.

JAPAN

1. The Kinkaseki Mine Trial
Hong Kong British War Crime Court Number Five, 1947

Crimes: Forced labor and mistreatment of prisoners

Summary: This case was brought against nine defendants, all civilian employees of the Nippon Mining Company and each accused of mistreating prisoners of war who were forced to labor in the Kinkaseki Mine, on the then island of Formosa. Eight of the nine were convicted. The mining company manager and supervisor were found guilty even though they did not directly participate in the beatings or mistreatment of the prisoners.

 

ALIEN TORT CLAIMS ACT LITIGATION

Some case information and summaries from the International Labor Rights Fund's project on Corporate Labor Rights Abuses. See:

http://www.laborrights.org/projects/corporate/ATCA%20summaries.htm

 

1. Roe, et. al. v. Unocal Corporation, et. al.
Doe, et al. v. Unocal Corporation, et al.
Case Nos 00-56603; 00-56628 (9th Cir. 2002)

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2. Khulumani, et. al. v. Barclays National Bank, et. al.
Case No. 02-CV5952 (S.D.N.Y. 2002)
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DISMISSED—APPEAL PENDING


3. Iwanowa, et. al. v. Ford Motor Company, et al.,
67 F. Supp.2d 424 (D.N.J. 1999)
Basis of Dismissal: Case barred by the applicable statute of limitations as well as political question doctrine and resolution of peace treaty.


Summary: This case arises out of plaintiff Iwanowa's allegations that Ford Werke coerced her, and thousands of other persons, to perform forced labor under inhuman conditions during World War II, without compensation, in Germany between 1941-1945. Specifically, plaintiff alleged that she, along with other Ukrainian deportees, were placed in locked wooden huts without heat, running water, or sewage facilities, and that Ford Werke security officials supervised the forced laborers, at times using rubber truncheons to beat those who failed to meet production quotas.
Crimes Alleged: Plaintiff alleged that the defendant’s use of forced labor was a violation of the law of nations. Plaintiff also made claims for restitution and unjust enrichment under Michigan, Delaware, and German law.


Status: The U.S. District Court dismissed the case, holding: (1) that the ATCA claims were time-barred since the applicable ten-year statute of limitations had run out; (2) that the ATCA claims against the subsidiary would be dismissed because it was the intent of post-war treaties and agreements that individual claims be resolved as part of reparations discussions between governments; and (3) that the claims were barred by the political question doctrine. In September 1999, the plaintiffs appealed the lower court's decision, but they withdrew their appeal in 2001.


4. In Re WWII ERA Japanese Forced Labor Litigation (I),
164 F.Supp.2d 1160, (N.D. Cal. 2001)
Basis of Dismissal: Claims barred by applicable statute of limitations.

Summary: Plaintiffs, Chinese and Korean nationals, alleged that, as prisoners of war, the Japanese corporations named in these consolidated lawsuits forced them to work without compensation during World War II. The plaintiffs alleged that the defendant corporations were liable under the ATCA, as well as a California statute providing for compensation to victims of slave labor inflicted by Nazis and their allies.

Crimes Alleged: The plaintiffs alleged the following violations:

  • Forced Labor

  • California Tort & Common Law: False imprisonment, assault and battery, conversion, unjust enrichment and quantum meruit, constructive trust, accounting, the Unfair Competition Act (UCA), California Bus & Professional Code § 17200, violations of Article 1 of the California Constitution and Penal Code § 181, which prohibit involuntary servitude.

Status: On September 17, 2001, the U.S. District Court granted defendants' motion to dismiss holding that, although forced labor constitutes a "violation of the law of nations," the plaintiffs’ claims were time barred by the Torture Victim Protection Act’s analogous ten-year statute of limitations.


5. In Re WWII Era Japanese Forced Labor Litigation (II)
164 F. Supp.2d 1153 (N.D. Cal. 2001)


Basis of Dismissal: WWII peace treaty barred claims.

Summary: Filipino plaintiffs, in these consolidated actions, sought damages from Japanese corporations for forced labor in violation of the law of nations. Defendants moved to dismiss the complaint, and the District Court held that a waiver provision in a World War II peace treaty barred plaintiffs' Alien Tort provision claims.

Crimes Alleged: The plaintiffs alleged the following violations:

  • Forced Labor

  • California Tort & Common Law: Intentional infliction of emotional distress, conversion, unjust enrichment, constructive trust, and unfair business practices prohibited by California Bus & Professional Code § 17200.


Status: On September 17, 2001, the U.S. District Court granted the defendants' motion to dismiss.

6. Deutsch v. Turner Corp.
317 F.3d 1005 (9th Cir. 2003)


Summary: The plaintiff brought suit in the Superior Court of California against the defendant German corporation seeking compensation under section 354.6 of the California Code of Civil Procedure. He alleges that he and his brother were captured by the Nazis and brought to Auschwitz, where they were tortured and forced to work as slaves for fourteen hours per day, seven days per week. His brother died from injuries received from beatings. Plaintiff claims that his labor benefited private corporations who had entered into agreements with the Nazi government.


Crimes Alleged: The plaintiff made the following claims:

  • Forced Labor

  • California Tort & Common Law: Intentional infliction of emotional distress, quantum meruit, wrongful death, and unfair business practices prohibited by California Bus & Professional Code § 17200.

Status: The plaintiff’s claims were dismissed, along with the Japanese forced labor cases, on grounds that section 354.6 of the California Code of Civil Procedure was unconstitutional under the foreign affairs doctrine. The plaintiff attempted to amend his complaint to include claims under ATCA and TVPA, but such claims were time-barred by a ten-year statute of limitations.


7. Hererro Reparations Case

Summary: Plaintiffs from the Hererro community of Namibia filed suit against German companies seeking reparations for the enslavement and destruction of their tribe. The lawsuit alleges that German industry assisted in imperial Germany’s colonization of Namibia and participated in acts of enslavement, extermination, forced labor, medical experimentation, and other crimes in the pursuit of common financial interests.


Status: On September 17, 2001 the U.S. District Court granted the defendants' motion to dismiss.


8. Burger-Fischer v. Degussa AG.
65 F.Supp.2d 248 (D.N.J. 1999)

Summary: This case concerned four class action suits brought by Holocaust survivors charging two German corporations with knowingly refining gold seized from inmates of Nazi concentration camps, employing slave labor, and manufacturing Zyklon B, the gas used to murder inmates at Auschwitz and other concentration camps.

Crimes Alleged: The plaintiffs claimed that the two corporations were liable for:

  • Refining seized gold with knowledge of its source

  • Employing forced laborers

  • Manufacturing poisonous gas for use in concentration camps

Status: All four actions were dismissed on grounds that they had been subsumed by post-war treaties.

 

ACTIVE & RECENTLY SETTLED LITIGATION

9. United States v. Kil Soo Lee
159 F. Supp. 2d 1241 (D. Haw. 2001)
Summary & Status: The United States indicted the defendant, owner of a clothes factory in American Samoa, for violations of the federal criminal code. In particular, the defendant was indicted for knowingly and willfully holding Vietnamese factory workers in involuntary servitude and attempting to provide and obtain the labor of the Vietnamese factory workers by threats of harm, physical restraint, and/or abuse of the law and legal process. The defendant was ultimately convicted of what prosecutors called "modern-day slavery.”

10. Slavery Class Action Lawsuits

Summary & Status: Several class-action lawsuits have been brought by descendants of slaves against various corporations for the unjust enrichment they allegedly received from the institution of slavery. The consolidated cases will be heard by Judge Charles R. Norgle of the U.S. District Court, Northern District of Illinois. The corporate defendants include financial institutions, insurance companies, railroads, tobacco companies, and a textile manufacturer.

The Saipan Sweatshop Cases & Settlement

Three separate civil lawsuits were filed against U.S. clothing retailers for their involvement with the foreign-owned garment industry of Saipan. Saipan is the largest island in the Northern Mariana Islands, a U.S. Commonwealth, and is attractive to the garment industry because of its lax immigration laws, low minimum wage, and exemption from U.S. import duties. Several clothing companies were named in the suits, including Gap, Tommy Hilfiger, the Limited, J.C. Penny, Wal-Mart, J. Crew, and Nordstrom. The suits led to a $20 million settlement with twenty-seven of the U.S. companies. The U.S. District Court for the Northern Mariana Islands approved the settlement at the end of April 2003. The settlement offers financial compensation to past and present garment workers and provides for the implementation of a code of conduct and human rights monitoring system for the islands’ factories. The original three suits are summarized below.

10 (a). Doe I et al. v. Gap, Inc. et al.
Case No. CV01-0031-948 (D.N.Mar.I. 2002)

Summary: Tens of thousands of foreign-born “guest workers” brought a federal class action suit against U.S. retailers for their involvement with the garment industry of Saipan. The plaintiff workers, mainly young women from Asian countries, were lured to the island with promises of jobs in America. To get to the island, the women had to sign a “shadow contract” requiring them to pay a “recruitment fee”—which many borrowed at a usurious rate of interest—and prohibiting them from activities such as falling in love or protesting against working conditions. After arriving on the island, the plaintiffs encountered “economic and physical conditions … far removed from what was promised,” including unlawful living and working conditions and long-hours without overtime.

Crimes alleged: The plaintiffs asserted that the conditions surrounding their employment amounted to forms of peonage and involuntary and indentured servitude. They made claims against the defendants under the following laws:

  • Racketeer Influenced and Corrupt Organizations Act claims: The plaintiffs claimed that the ongoing labor conditions—including inter alia the extra hours without pay, the debt from their shadow contracts, and the intimidating and abusive behavior of factory mangers—were proof of a pattern of racketeering from which the defendants derived benefit.

  • The Anti-Peonage Act: The Anti-Peonage Act prohibits the "holding of any person to service or labor under the system known as peonage." The plaintiffs claimed that the large recruitment fees and physical and legal coercion preventing them from leaving their jobs forced them into involuntary servitude in violation of the Act.

  • Alien Torts Claim Act: The plaintiffs alleged that the defendants violated the law of nations and several international treaties to which the United States was a party. The violations included restrictions on the rights to leisure time and free choice of employment, slavery, torture and cruel and inhumane punishment, and suppression of other well-established labor rights.

  • Other claims: The plaintiffs also claimed violations of the thirteenth amendment of the U.S. Constitution, statutory law of the CMNI, and common law prohibitions against false imprisonment, compulsion to labor, and peonage.

Status: In an order dated November 26, 2001, the district court granted in part and denied in part the defendants’ motion to dismiss for failure to state a claim. Many of the RICO and common law claims survived the motion; however, several of the other claims were dismissed, including the ATCA claim for failure to adequately allege a violation of international law. The court granted the plaintiffs twenty days to file a second amended complaint. On May 10, 2002 the court again granted in part and denied in part the defendants’ motion to dismiss. By this time, many of the defendants had joined the settlement. The plaintiffs scored a significant victory that same day, as the district court granted their motion for class certification. Levi Strauss & Co. was the only defendant that chose to challenge the plaintiffs’ third amended complaint; the rest joined the settlement by September 2002. On December 17, 2002, the court granted-in-part and denied-in-part Levi Strauss’ motion to dismiss. The plaintiffs’ RICO claims survived the motion. However, the district court again dismissed the plaintiffs’ ATCA claims, this time with prejudice, holding that the claims for forced labor, indentured servitude, peonage, and other unfair labor practices were not adequately alleged as violations of the law of nations.

10 (b). Union of Needletrades Industrial and Textile Employees v. The Gap

Summary: Plaintiffs—Global Exchange, Sweatshop Watch, the Asian Law Caucus, and the Union of Needletrades Industrial and Textiles Employees (UNITE)—filed a complaint in San Francisco Superior Court against eighteen U.S. clothing retailers, charging them with unfair business practices under California Business and Professions Code § 17200. The plaintiffs allege that the companies violated the law “by falsely advertising their garments as being sweatshop-free, by violating the federal law prohibiting the shipment of ‘hot goods’ in interstate commerce, by aiding and abetting their Saipan garment factories' violations of the laws against involuntary servitude, and by other misleading labeling and advertising practices.”

Status: On November 12, 1999, the superior court judge denied the defendants' motion to dismiss. The judge also denied the defendants' efforts to divide the case into separate proceedings against each retailer defendant. After the motion was denied, discovery proceeded under the direction of a referee. In early 2002, several of the retailer defendants filed motions for summary adjudication on grounds that the First Amendment protected their advertising statements, and that no one had been harmed by the alleged misrepresentations about working conditions in the Saipan factories. The parties were scheduled to argue the motion later in the year.

10 (c). Fair Labor Standards Act Case
Summary: This case was filed in federal court by a smaller group of Saipan “guest workers” against twenty-two Saipan-based garment contractors for violations of the Fair Labor Standards Act (FLSA), on behalf of approximately 25,000 similarly-situated garment workers. The plaintiffs allege that their employers had a policy of not paying legally required overtime, and that the employers also deducted excessive sums for unsanitary food and housing—sums the plaintiffs were forced to pay as a condition of their employment. Fearing retaliation from their employers and deportation and possible imprisonment in their home countries, the plaintiffs filed their case under the pseudonyms "Jane Does I-XXIII."


Status: After first denying the plaintiffs’ motions for recusal for his association with the former president of the Saipan Garment Manufacturers Association, the district court judge dismissed the plaintiffs’ case because of their use of fictitious names. In early 2000, the Ninth Circuit Court of Appeals overruled the district court and upheld the individual plaintiffs' right to proceed anonymously, at least until notice could be sent to all potential FLSA plaintiffs, informing them of their rights and inviting them to join the litigation. In October 2001, the district court ordered that notice of the right to submit claims be provided to over 20,000 current and former workers, and that workers be given several months in which to respond. The notices were expected to be sent out in April 2002.


RECENT FOREIGN LITIGATION

11. World War II Forced Labor (Japan)

Summary & Status: A group of Chinese citizens brought suit in Tokyo District Court seeking compensation from the Japanese government and ten companies for allegedly using them as slave laborers during World War II. The court dismissed the claims, ruling that the government and companies were not responsible for damages to the individuals. The Chinese plaintiffs claim they were captured by the Japanese military between 1944 and 1945 and forced to work in Japan's construction and mining industries. They had sued for a total of $7.25 million in damages. March 11, 2003.


C. Forced Labor Defined

1. Definition of Forced Labor

All work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
Forced labor includes: slavery and abductions, compulsory participation in public works projects, forced labor in agriculture and remote rural areas (coercive recruitment systems), domestic workers in forced labor situations, bonded labor, forced labor imposed by the military, forced labor in the trafficking in persons; and some aspects of prison labor and rehabilitation through work.
Forced labor does not include: any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; any service exacted in case of an emergency or calamity threatening the life or well-being of the community; any work or service which forms part of normal civic obligations.
While there is universal consensus on the definition of forced labor (essentially work performed under compulsion and subject to a penalty), some of the forms it takes are still sources of policy debate. Among the most contentious issues are those involving compulsory participation of citizens in public works in the context of economic development, a practice that prevails in a number of Asian countries (including Vietnam) and African countries (Central African Republic, Sierra Leone and Tanzania).


The use of prison labor is another area of contention in countries where rehabilitation through labor is part of punishment, as in China, or where the hiring out of prison labor to private entities is permitted, as in Malaysia, the United States and Madagascar, for example.

2. Definition of Enslavement

‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

  • Slavery: As defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and "slave" means a person in such condition or status;

  • A person of servile status: A person in the condition or status resulting from any of the institutions or practices mentioned in article I of this Convention;

  • Slave trade: All acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.

Enslavement includes:

  • Debt bondage: The status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

  • Serfdom: The condition or status of a tenant who is by law, custom or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

  • Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labor.

3. Sources of Law

  • Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (ILO No. 182), 38 I.L.M. 1207 (1999), entered into force Nov. 19, 2000;

  • International Labor Organization, Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 1998. http://www.ilo.org/public/english/standards/decl/declaration/text/index.htm

  • Abolition of Forced Labor Convention (ILO No. 105), 320 U.N.T.S. 291, entered into force Jan. 17, 1959;

  • Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force April 30, 1957;

  • The European Convention on Human Rights, Art. 5;

  • Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by General Assembly resolution 317 (IV) of 2 December 1949;

  • Convention concerning Forced or Compulsory Labor (ILO No. 29), 39 U.N.T.S. 55, entered into force May 1, 1932;

  • Convention To Suppress The Slave Trade And Slavery (Geneva Convention on Slavery, September 25, 1926.

Note: Enslavement is included as a crime against humanity in the Statutes of the ICC, the ICTY, the ICTR, as well as the Statute of the Far East War Crimes Tribunal and Control Council Law No. 10. It is discussed in Part A, supra.

  • Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, U.N. Sales No. , Art. 7(1)(c);

  • Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002, Art. 2;

  • Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994, Art. 3;

  • Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Art. 5;

  • Control Council Law No. 10 (Dec. 20, 1945), reprinted in 1 Trials of War Criminals Before the Nuremberg Military Tribunals, at xvi (photo. reprint 1998) (1949);

  • Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945, Part II, Art. 6(c).

4. International Guidelines

 

D. Elements of Crime Against Humanity of Enslavement

 

Article (7)(1)(c) of the ICC Elements

  1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

  2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

  3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population