National Surveys:
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Category III: War Crimes Part I
Category III: War Crimes Part II
The contents and documents of this web site are
intended for research purposes and do not constitute legal advice. Fafo
and IPA are not responsible for the content of linked web sites
Business and International Crimes
Category III: War Crimes I
A. Overview
B. Overview of War Crimes
C. Primary Sources of Law
D. Cases Involving Economic Actors and War Crimes
F-K continues in Category III: War Crimes II
F. Grave Breaches
G. Elements of the Grave Breaches
H. Other Serious Violations Defined
I. Elements of Other Serious Violations
J. War Crimes: Protections Applicable
to Internal Conflicts
K. The Individualized Elements: War
Crimes
A. Overview
In the United States, contemporary cases alleging business-entity engagement in war crimes are civil lawsuits brought under the Alien Tort Claims Act (ATCA). The majority of these cases (as with cases alleging crimes against humanity) allege that the business entity was an accomplice to the violent actions of other perpetrators-notably government military or security forces or other armed groups.
Various German industrialists were prosecuted for war crimes that occurred
during World War II. Most notably, the industrialists were prosecuted
for the unjustified appropriation of civilian property in occupied territories.
For such misappropriation, various industrialists were prosecuted for
plunder and spoliation in contravention of the Hague Regulations. This
is an example of when business entities might be characterized as directly
involved in war crimes. Today, various business entities similarly might
be characterized as engaged in plunder and pillage when involved with
the illegal or unjustified appropriation of various natural resources
within war zones or countries in the midst of internal armed conflict.
B. Overview of War Crimes
The modern doctrine of war crimes derives from the laws and the customs of war. The doctrine is a mixture of treaty and conventional law. Whether a violation of the law results in individual criminal responsibility depends on the particular violation and the sources from which it derives.
The seminal definition of war crimes comes from the charters authorizing
the post-World War II Nuremberg trials. These charters included non-exhaustive,
illustrative lists that defined violations of the laws or customs of war,
including, but not be limited to:
murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
The protections against war crimes apply in the context of an armed conflict. Traditionally, the protections applied primarily to international armed conflicts. A more limited set of protections currently applies to non-international armed conflicts. Some commentators argue that the entire war crimes doctrine should apply regardless of the international or non-international character of the conflict.
The following table lists the war crimes violations covered in this report. The crimes are divided by their applicability to international and internal conflicts, and are categorized according to their major source of derivation.
APPLICABLE TO INTERNATIONAL ARMED CONFLICTS APPLICABLE TO INTERNAL CONFLICTS
APPLICABLE TO INTERNATIONAL ARMED CONFLICTS
APPLICABLE TO INTERNAL CONFLICTS
TRIALS OF THE INDUSTRIALISTS AT NUREMBERG.
APPLICABLE TO INTERNATIONAL ARMED CONFLICTS APPLICABLE TO INTERNAL CONFLICTS
APPLICABLE TO INTERNATIONAL ARMED CONFLICTS APPLICABLE TO INTERNAL CONFLICTS
|
APPLICABLE TO INTERNATIONAL ARMED CONFLICTS |
APPLICABLE TO INTERNAL CONFLICTS |
|
The Grave Breaches Other Serious Violations Medical or scientific experiments |
Common Article 3 Additional Protocol II ICC Article 8 (2) (e) |
C. Primary Sources of Law
The primary sources of law providing protection to civilians in the time of war include:
– The Hague Convention No. IV of 1907 and Annexed Regulations
– The Nuremberg Charters, including:
Charter of the International Military Tribunal at Nuremberg
Control Council Law No. 10
Charter for the Tokyo Tribunal
– The Geneva Conventions of 1949
– Protocol I Additional to the Geneva Conventions of 1949
The primary sources of law covering conflicts not of an international character include:
– Common Article 3 to the Geneva Conventions of 1949
– Protocol II Addition to the Geneva Conventions of 1949
War crimes have been developed further and applied in the context of both of international and non-international conflicts in the statutes of the modern criminal tribunals, namely:
– International Criminal Tribunal for the former Yugoslavia (ICTY)
– International Criminal Tribunal for Rwanda (ICTR)
– International Criminal Court (ICC)
D. Cases Involving Economic Actors and War Crimes
Note on Prosecutions for pillage plunder and related property crimes
Although the terms plunder and pillage have been interpreted to include a broad category of property theft and misappropriation, the prosecutions of industrialists (economic actors) after World War II involved larger and more systematic property theft and expropriation.
The United States Military Tribunal (USMT) at Nuremberg prosecuted defendants
from several major industrial conglomerates: IG Farben, the Krupp Firm,
and the Friedrich Flick Concern. Collectively, these are referred to as
the trials of the industrialists. They represent the clearest examples
of prosecution of private actors for plunder and pillage of private property
during wartime. The International Military Tribunal (IMT) also prosecuted
German banker Karl Rasche; he was convicted of looting and spoliation.
The Nuremberg tribunals used the terms spoliation, plunder, and exploitation interchangeably in their decisions. These terms refer to the "widespread and systematic acts of dispossession and acquisition of property in violation of the rights of the owners, which took place in territories under the belligerent occupation or control of Nazi Germany during World War II."
Trials of the industrialists at Nuremberg
NAZI GERMANY
1. United States v. Krauch,
VIII Trials of War Criminals before the Nuremberg Military Tribunals under
Control Council Law No. 10 at 1081(Washington D.C.: United States Government
Printing Office, 1949) (the I.G. Farben Case)
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. Five of the Farben
directors were held criminally liable for the plunder. This was the first
time that a court had attempted to impose liability on a group of persons
who collectively were in charge of a company.
In the Farben decision, the USMT explained its view that terms such as spoliation and plunder are synonyms:
The Hague Regulations do not specifically employ the term “spoliation”, but we do not consider this matter to be one of legal significance. As employed in the indictment, the term is used interchangeably with the words “plunder” and “exploitation.” …the term ‘spoliation’ . . . applies to the widespread and systematized acts of dispossession and acquisition of property in violation of the rights of the owners, which took place in the territories under belligerent occupation or controlled of Nazi Germany during World War II. We consider the ‘spoliation’ is synonymous with the word ‘plunder’ as employed in Control Council Law 10 and that it embraces offences against property in violation of the laws and customs of war. . . .
Although limits on the USMT's jurisdiction precluded it from holding Farben liable for the use of slave labor, the USMT found that, as a corporate entity, Farben had violated Article 47 of the Hague Regulations on the Laws and Customs of War. In the tribunal's assessment:
The result was the enrichment of Farben and the building of its greater chemical empire through the medium of occupancy at the expense of the former owners. Such action on the part of Farben constituted a violation of rights of private property, protected by the Laws and Customs of War. And in the instance involving private property, the permanent acquisition was in violation of the Hague Regulations which limits the occupying power to a mere usufruct of real estate. The forms of the transactions were varied and intricate, and were reflected in corporate agreements well calculated to create the illusion of legality. But the objective of pillage plunder and spoliation stands out and there can be no uncertainty as to the actual result.
Farben was held liable in instances in which property was confiscated by the Reich as well as in situations where Farben acquired title through negotiations. When Farben's seizure followed confiscation by the Reich, the Tribunal noted that Farben generally took affirmative and premeditated actions to acquire the property. Similarly, Farben’s private negotiations were tainted by the omnipresent threat of forceful seizure and regulation by the Reich.
The tribunal further noted
Where private individuals ... proceed to exploit ... military occupancy by acquiring private property against the will and consent of the former owner, such action ... is in violation of international law. The payment of a price or other adequate consideration does not ... relieve the act of its unlawful character. Similarly, where a private individual or juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations.
The tribunal concluded that pillage, as a property crime, also was prohibited by international law. As evidence, the USMT cited the Inter-Allied Declaration of January 1943, subscribed to by seventeen governments of the United Nations and the French National Committee. This declaration noted intent of the parties "to leave no doubt whatsoever of their resolution not to accept or tolerate the misdeeds of their enemies in the field of property ... just as they have recently emphasized their determination to exact retribution from war criminals for their outrages against persons in the occupied territories." According to the tribunal, the Inter-Allied Declaration was not legally binding. It did, however, support the view that the plunder and spoliation of property constituted offenses under international law.
As for legal standards for establishing culpability, the tribunal concluded
that individuals had to either participate in, or knowingly authorize
or approve of, spoliation or plunder. The tribunal noted, "This means
positive knowledge that the owner is being deprived of his property against
his will during military occupancy."
With respect to evidence of approval or authorization, the tribunal looked to board minutes and corporate reports. Farben maintained abbreviated minutes of committee meetings. In most instances, the tribunal noted that the records lacked sufficient detail from which it could be inferred conclusively that the Vorstand members were informed that the property had been acquired without the owners’ voluntary consent.
In addition to the prosecution of Farben managers, the USMT prosecuted industrialists from the Krupp firm. Krupp involved the prosecution of twelve defendants for commission of war crimes and crimes against humanity for plunder and spoliation of civilian property and factories in occupied territories, and also for 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 USMT.
Under count two of the USMT's indictment, ten of the defendants were charged with plunder and spoliation amounting to war crimes and crimes against humanity. The Krupp defendants were charged "in the plunder of public and private property, exploitation, spoliation, devastation, and other offenses against property and the civilian economies of the countries and territories that came under the belligerent occupation of Germany in the course of its invasions and wars." Six of the defendants were found guilty under count two.
The tribunal, in its judgment, described the actions of defendants as "[h]aving exploited, as principals or as accessories, in consequence of a deliberate design and policy, territories occupied by German armed forces in a ruthless way, far beyond the needs of the army of occupation and in disregard of the needs of the local economy."
The USMT was of the opinion that the Krupp firm actively sought to engage in spoliation and plunder. In rendering its opinion, the tribunal repeatedly refers to the collective intent of the firm: "[t]here are a number of other such examples, which make it clear to us that the initiative for the acquisition of properties, machines, and materials in the occupied countries was that of the Krupp firm and that it utilized Reich government and Reich agencies whenever necessary to accomplish its purposes…"
During World War II, Friedrich Flick was a member of the advisory council
of the Economic Group of the Iron Producing Industry. Flick was convicted
of war crimes and crimes against humanity because he had knowledge of
and approved of certain unlawful activities of his deputy, Bernhard Weiss.
Flick also was convicted of spoliation and plunder of occupied territories.
Specifically, Flick took control of a French cement plant in Lorraine
in 1940.
In this regard, the USMT noted:
Charles Laurent as a witness testified that he was expelled from Lorraine in 1940 and that the Flick administration had nothing to do therewith....A corporation called Rombacher Huettenwerke, G.m.b.H., was organized by Flick to operate the plant. Operations continued from March 1941 until the Allied invasion about 1 September 1944. All the profits were invested in repairs, improvements, and new installations. As the Allied armies approached Rombach, the German military authorities gave orders to destroy the plants, which were disobeyed by the officials of the trustee [Flick]. When the French management returned, the plants were intact....The evidence satisfied us that the trustee left the properties in better condition then when they were taken over.
The USMT noted that, "while the original seizure may not have been unlawful, its subsequent detention from the rightful owners was wrongful." The USMT cited Hague Regulation 46, which provides that private property in an occupied territory must be respected, and noted that Flick's actions were not the "systematic" plunder Hitler conceived. Flick was nonetheless found "guilty in respect to the Rombach matter," although the USMT took "fully into consideration in fixing his punishment all the circumstances under which he acted."
Although Flick was found guilty with respect to one factory, he and his
colleagues were acquitted with respect to other property acquisitions
that he made during the war. The Flick defendants, for example, were exonerated
of the plunder of a Soviet railroad and engine factory. The tribunal ruled
that state-owned property of this character may be lawfully seized and
operated for the benefit of a belligerent.
At the same time, the tribunal noted that transactions that may be entirely
lawful during peacetime may become suspect if conducted during a war:
"Commercial transactions entered into by private individuals which
might be entirely permissible and legal in time of peace or nonbelligerent
occupation may assume an entirely different aspect during belligerent
occupation and should be closely scrutinized where acquisitions of property
are involved ...."
4. United States v. Von Weizsaecker, XIV Trials of War Criminals Before
the Nuremberg Military Tribunals under Control Council Law No. 10 at 314
(Washington D.C.: United States Government Printing Office, 1949) (the
Ministries Case).
Karl Rasche was the Chairman of Dresdner Bank, a private bank in Germany
that served in many respects as the bank for the Third Reich. Rasche was
the only private banker to be tried under the Nuremberg Charter. Rasche
also had been characterized as a high-ranking Nazi official. Rasche was
tried on four counts: (1) war crimes and crimes against humanity; (2)
war crimes and crimes against humanity relating to looting; (3) war crimes
and crimes against humanity relating to slavery; and (4) membership in
the SS. Rasche was convicted for war crimes and crimes against humanity
relating to looting.
Rasche was convicted of looting and spoliation in contravention of Article
II, paragraph 1(b) of War Crimes Control Council Law No. 10. Rasche, in
particular, was indicted for plunder of public and private property in
Czechoslovakia. It was alleged that he took control of several financial
institutions and absorbed various branch banks into the Dresdner empire.
He also was alleged to have "further participated in, facilitated
and sought advantages from, the program of Aryanization introduced into
countries occupied by Germany, designed to expel Jews from economic life
and involving threats, pressures and coercion to force Jews to transfer
their properties to Germans."
5. France v. Roechling, XIV Trials of War Criminals Before the Nuremberg
Military Tribunals at 1097 under Control Council Law No. 10 at 1327 (Washington
D.C.: United States Government Printing Office, 1949)
Crimes: Plunder and spoliation, deportation, torture.
Summary: Hermann and Ernst Roechling, directors of the Roechling
Company, were convicted in French Superior Court for the plunder and spoliation
of factories and machineries in Alsace Lorraine. Prosecutors were able
to prove that the profits from the plundered plants had been diverted
to the Roechling Company. Hermann also was convicted for participating
in the deportation of over 200,000 people and assigning them to work in
German iron and steel firms, where they were subjected to the cruel conduct
of the plant police. The forced laborers were subjected to a Gestapo disciplinary
court and punishment camp. Others “were locked in cellars flooded
with water, forced to engage in exhausting exercises, deprived of food
and sleep, and were ravaged by dogs.” Two additional Roechling executives
were convicted for encouraging this cruel treatment of the laborers.
6. Trial of Bruno Tesch and Two Others, 1 Law
Reports of Trials of War Criminals 93 (Brit. Mil. Ct. 1947) (the Zyklon
B Case)
Crime: Supplying poisonous gas used in concentration camps.
Summary: Owner of a chemical company, the owner’s second-in-command, and the company’s technician were indicted for supplying Zyklon B, a poisonous gas, to the Nazi concentration camps. The court determined that the owner and his second-in-command had knowledge of the Nazis’ use of the gas to poison prisoners and therefore were accessories to a breach of the laws and customs of war. The technician was acquitted.
ICTY PROSECUTIONS
1. Prosecutor v. Mucic, et al., Case No. IT-96-21
a) Trial Judgment (Nov. 16, 1998), available at http://www.un.org/icty/celebici/trialc2/judgment/index.htm
b) Appeals Judgment (Feb. 20, 2001), available at http://www.un.org/icty/celebici/appeal/judgement/cel-aj010220.pdf.
c) Trial Judgment (Oct. 9, 2003), available at http://www.un.org/icty/celebici/trialc2/judgment/cel-tsj011009e.htm
d) Appeals Judgment (April 8, 2003), available at http://www.un.org/icty/celebici/appeal/judgment2/index.htm
Mucic provides a lengthy examination of plunder and is the decision cited in subsequent ICTY cases dealing with plunder. In Mucic, the ICTY described the material elements of plunder of public or private property, as listed in Article 3(e) of the Statute. The accused must be linked to one side of the conflict and must have unlawfully destroyed, taken, or obtained any public or private property belonging to institutions or persons linked to the other side of the armed conflict.
In Mucic, the ICTY also addressed the question of whether the acts alleged
in the indictment constituted plunder under international criminal law.
The predicate act was the theft of money, watches and other valuables
at the Celebici camp. The ICTY noted quite clearly that the term “plunder”
comprised a broad spectrum of unauthorized looting – from theft by
individual perpetrators to more widespread, systematic theft of the type
encountered at Nuremberg during the prosecution of the industrialists.
The ICTY held:
In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope and extends to the acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. Contrary to the submissions of the Defense, the fact that it was acts of the latter category which were made the subject of the prosecutions before the International Military Tribunal at Nuremberg Military Tribunals does not demonstrate the absence of individual criminal liability under international law for individual acts of pillage committed by perpetrators motivated by personal greed.
The ICTY also noted the importance under international humanitarian law (IHL) of protecting private property during armed conflict, as well as protecting persons:
In considering the elements of the offence of plunder, the Trial Chamber must take as its point of departure the basic fact that international humanitarian law not only proscribes certain conduct harmful to the human person, but also contains rules aimed at protecting property rights in times of armed conflict. Thus, whereas historically enemy property was subject to arbitrary appropriation during war, international law today imposes strict limitations on the measures, which a party to an armed conflict may lawfully take in relation to the private and public property of an opposing party.
In general, the ICTY noted that the term “plunder” encompassed pillage, plunder and spoliation:
[T]he offence of the unlawful appropriation of public and private property in armed conflict has varyingly been termed ‘pillage’, ‘plunder’ and ‘spoliation’. Article 47 of The Hague Regulations and Article 33 of the Geneva Convention IV by their terms prohibit the act of ‘pillage’. The Nuremberg Charter, Control Council Law No. 10 and the Statute of the International Tribunal all make reference to the war crime of the ‘plunder of public and private property. While it may be noted that the concept of pillage in the traditional sense implied an element of violence not necessarily present in the offence of plunder, it is for the present purposes not necessary to determine whether under current international law, these terms are entirely synonymous. The Trial Chamber reaches this conclusion on the basis of its view that the latter term, as incorporated in the Statute of the [ICTY] should be understood to embrace all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as ‘pillage’.
The Defendants were ultimately acquitted in Mucic because “even when considered in the light most favorable to the Prosecution, the evidence before the Trial Chamber fails to demonstrate that any property taken from the detainees in the Celebici prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims.”. The ICTY concluded that the property that was unjustifiably appropriated must have significant value so as to cause “grave consequences to the victim.” Thus, an isolated incidence of theft might rise to the level of plunder only if the misappropriated property were of significant economic value.
2. Prosecutor v. Kordic, Case No. IT-95-14/2
a) Trial Judgment (Feb. 26, 2001), available at http://www.un.org/icty/kordic/trialc/judgement/kor-tj010226e.pdf
b) Appeals Judgment (Dec. 17, 2004), available at http://www.un.org/icty/kordic/trialc/judgement/ kor-tj010226e.pdf
In Kordic, defendants were accused of ordering and participating in systemic plunder of villages. The plunder included “small objects, such as watches, gold and money, cars, refrigerators, cattle and other property from Muslim villages.” Defendants ultimately were convicted of plunder.
The ICTY noted that the offences of plunder and spoliation have “long
been known to international law, and [they are] prohibited as a matter
of both conventional and customary law.” The ICTY further noted that
the act of plunder includes “both widespread and systematized acts
of dispossession and acquisition of property…and isolated acts of
theft or plunder by individuals for their private gain.” The Trial
Chamber concurred: “the prohibition against unjustified appropriation
of private or public property constitutes a rule protecting important
values.”
As in Delalic, the ICTY did acknowledge that the misappropriation needed
to be of “sufficient monetary value” as to involve “grave
consequences to the victims.”
3. Prosecutor v. Kunarac, et al., Case No. IT-96-23-I
a) Trial Judgment (Feb. 22, 2001), available at http://www.un.org/icty/kunarac/trialc2/ judgement/kun-tj010222e.pdf
b) Appeals Judgment (June 12, 2002), available at http://www.un.org/icty/kunarac/appeal/ judgement/kun-aj020612e.pdf
In Kunarac, the ICTY grappled with how to determine when a crime merely was theft or rose to the level of plunder. The tribunal noted that the word plunder “in its ordinary meaning” suggests that more than the theft of property from one person, or even from a few persons in the one building, is required. The tribunal further noted that plunder is synonymous with pillage and based this statement on the ICRC definition, which uses the terms interchangeably. The ICTY noted that there must be theft “involving an extensive group of persons or a pattern of thefts over some identifiable area, such as, for example, the Muslim section of a village or town or even a detention center.”
Plunder also included “unjustified appropriations both by individual soldiers for their private gain and by the organized seizures within the framework of a systematic exploitation of enemy property.” In Kunarac, the tribunal concluded that the theft from one of a few persons within one apartment building was not sufficient to support a conviction for plunder.
4. Prosecutor v. Blaskic, Case No. IT-95-14-T
a) Trial Judgment (Mar. 3, 2000), available at http://www.un.org/icty/blaskic/trialc1/ judgement/index.htm
b) Appeals Judgment (July 29, 2004), available at http://www.un.org/icty/blaskic/appeal/ judgement/bla-aj040729e.pdf.
In Blaskic, the ICTY once again affirmed the definition of plunder set forth in Delalic. The specific allegations of plunder related to several Croatian solders who stole money and jewelry from private individuals. The defendant, General Blaskic, was found guilty for having “ordered the destruction and plunder of property, and, in particular of institutions dedicated to religion or education.”
Blaskic may be a useful precedent because it relates to more systematic attacks and misappropriation from various geographic regions. Outside of plunder and pillage, it is difficult to characterize business entities as the direct perpetrators of war crimes. This is because business entities operate in war or conflict zones to make an economic profit. As such, they are not combatants but possible economic partners to combatants; in this role, they may be more likely to be accomplices to war criminals than direct perpetrators.
As discussed elsewhere, one of the other limiting factors with respect
to war crimes is that the prohibition against war crimes only is applicable
in the event of an international armed conflict or an internal armed conflict
as defined by the Geneva Conventions. Therefore, cases involving internal
violence that do not rise to the level of an internal armed conflict would
not be governed by IHL.
JAPAN
1. The Kinkaseki Mine Trial
Hong Kong British War Crime Court Number Five, 1947
[click to jump]
ALIEN TORT CLAIMS ACT
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
ACTIVE CASES (RECENTLY FILED OR SURVIVED MOTION TO DISMISS)
1. Presbyterian Church of Sudan
v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003)
Other published decisions : Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005)
Summary: Current and former residents of the Republic of the Sudan brought charges under the ATCA, alleging that Talisman, a Canadian oil company, provided support to the government of the Republic of the Sudan in its ethnic cleansing campaign against non-Muslim Southern Sudanese. Plaintiffs allege that Talisman participated in this campaign in order to further its oil operations in Southern Sudan. Ethnic cleansing activities included the destruction of thousands of villages and residences by military aircraft, as well as the capture, enslavement, and killing of a substantial number of civilians. These activities also resulted in the displacement of hundreds of thousands of civilians.
Summary of Court Decision: Denying defendant’s motion to dismiss, the court held that a corporation may be imputed as having the requisite specific intent to commit a crime.
Plaintiff Claims: The plaintiffs allege that the Sudanese government’s
“ethnic cleansing” activities resulted in the following violations:
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Extrajudicial Killing
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Forcible Displacement (a war crime)
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Military Bombings and Assaults on Civilian Targets (a war crime)
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Confiscation and Destruction of Property (a war crime)
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Kidnapping
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Rape
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Enslavement
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Torture
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Genocide
Case History: The Complaint was filed in the U.S. District Court
for the Southern District of New York on November 8, 2001 against Talisman
and the Republic of the Sudan. Various attempts by the defendants to dismiss
the Complaint have been denied by the court, but in 2005 the district
court made two important decisions that benefit defendants. In Presbyterian
Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 458-65 (S.D.N.Y.
2005), the court held that plaintiffs did not meet all the requirements
for certification as a class for two reasons. First, because they seek
solely, in effect, money damages; and second, because liability of defendants
would depend of individual proof that the injuries claimed by plaintiffs
were proximately caused by defendants’ actions. In Presbyterian Church
of Sudan v. Talisman Energy, Inc., No. 01-9882, 2005 WL 1060353 (S.D.N.Y.
May 6, 2005), the court held that organizational plaintiffs could not
sue on behalf of their members because the charges in this case require
individualized proof of proximate causation, necessitating the participation
of individual members of the lawsuit. This case has not yet gone to trial.
CASES THAT ARE PENDING ON APPEAL
2. Sarei v. Rio Tinto PLC, 221
F. Supp. 2d 1116 (C.D. Cal. 2002)
Basis of Dismissal: Political Question
Summary: This ATCA class action suit arises out of allegations of environmental and human rights abuses against Rio Tinto and Rio Tinto, Ltd, respectively British and Australian companies, which operate a copper and gold mine on the Papua New Guinea (PNG) island of Bougainville. Agreements between the mine operators and the PNG government gave 19% of the mine’s profits to the PNG government. Plaintiffs are residents of Bougainville, who assert that they were unlawfully dispossessed of their land; that the defendants caused massive environmental damage; and that, in the effort to keep mining operations open for Rio Tinto, the PNG central government committed human rights abuses including war crimes, crimes against humanity, and an unlawful medical blockade in response to the civil unrest precipitated by the mine. The medical blockade alone is alleged to have resulted in the death of approximately 15,000 people.
Summary of Court Decision: Citing international comity, the Political Question Doctrine, and the Act of State Doctrine, the district court declined to exercise jurisdiction over the claims raised by plaintiffs
Plaintiff Claims: The plaintiffs’ Complaint alleges the following violations:
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Crimes against Humanity: Plaintiffs allege that the medical blockade was an act of torture and genocide.
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War Crimes: Plaintiffs allege that during the civil war the PNG government committed the following violations of the laws of war: aerial bombardment of civilian targets (attack on civilians); wanton killing and acts of cruelty; burning of houses and villages (destruction & appropriation of property); making the civilian population and individual civilians objects of attack; outrages upon personal dignity, acts of rape, humiliating and degrading treatment; perfidious use of the Red Cross emblem; and pillage. Plaintiffs also claim that the blockage was a violation of the laws of war because it denied civilians access to medicine.
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Violation of the Rights to Life, Health and Security of the Person
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Racial Discrimination in Violation of International Law
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Cruel, Inhuman and Degrading Treatment
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Violations of International Environmental Rights
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Consistent Pattern of Gross Violations of Human Rights
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Torts: Negligence, Private Nuisance, Public Nuisance, Strict Liability, Equitable Relief, and Medical Monitoring.
Case History: In July 2001, the district court denied Rio Tinto’s
motion to dismiss on grounds of forum non conveniens and failure to state
a claim, but left open the issue of justiciability pending receipt of
an opinion from the U.S. State Department concerning the effect of the
action on U.S. foreign policy interests.
In a November 2001 letter, the State Department told the court that continued adjudication of the action would “risk a potentially serious adverse impact on the Bougainville peace process, and hence on the conduct of United States foreign relations” with a friendly country. In its March 2002 decision, based on the State Department opinion, the court conditionally dismissed all claims. Initially the dismissal was conditioned on the PNG government submitting written consent to allow the claims to be pursued in PNG, but, in June 2002, Judge Morrow removed the condition and made the order final.
Plaintiffs appealed the dismissal to the Ninth Circuit and oral arguments were heard on June 23, 2005.
CASES THAT HAVE BEEN DISMISSED—NO APPEAL PENDING
3. Herero People’s Reparations Corp. v. Deutsche Bank, 370 F.3d 1192 (U.S. App. D.C. 2004)
Basis for Dismissal: Failure to state a claim upon which relief may be granted
Summary: Plaintiff (“HPRC”) is a group of tribe members from the Herero community of Namibia, which filed suit against two German companies for reparations for the enslavement and destruction of their tribe. HPRC alleged that German industry assisted in Germany’s colonization of Namibia in the nineteenth and twentieth centuries and participated in acts of enslavement, extermination, forced labor, medical experimentation, and other crimes in the pursuit of common financial interests.
Summary of Court Decision: The appellate court affirmed the district court’s decision granting defendants’ motion to dismiss, holding that because the district court had subject matter jurisdiction over the dispute, as plaintiff asserted claims under federal law, the district court did not err by ruling on the merits of the case.
Status: Plaintiff filed the Complaint in the Superior Court of
the District of Columbia and the defendants removed the case to federal
court. On September 17, 2001 the district court granted the defendants'
motion to dismiss for failure to state a claim, ruling that federal common
law provides no private cause of action for violations of customary international
law. Plaintiff appealed, arguing that its claim was so insubstantial that
federal question jurisdiction did not exist. (In effect, Plaintiff was
attempting to have the case remanded to state court.) The Supreme Court
denied certiorari in 2004.
4. Abrams v. Societe Nationale des Chemins de Fer Francais, 175 F. Supp.2d 423 (E.D.N.Y. 2001)
Other published decisions: Abrams v. Societe Nationale des Chemins de Fer Francais, 389 F.3d 61 (2d Cir. 2004)
Basis of Dismissal: Sovereign Immunity
Summary: Plaintiffs were Holocaust survivors who filed suit on behalf of themselves and other Holocaust victims similarly situated against the French national railroad company. Plaintiffs claimed breaches of customary international law and the law of nations arising out of alleged deportation of Jews and others from their homes in France to various Nazi death camps during World War II.
Summary of Court Decision: The U.S. District Court dismissed the case on the basis of sovereign immunity, finding that the French national railroad company was an agency or instrumentality of a foreign state, as defined in Foreign Sovereign Immunities Act (FSIA) and that none of FSIA's exceptions applied to the suit.
Plaintiff Claims: Plaintiffs allege that the defendant’s deportation
of Jews and others from France to Nazi concentration camps constituted
breaches of customary international law and the law of nations.
Case History: Plaintiffs appealed the lower court's ruling. In 2004, the Second Circuit affirmed the lower court’s decision, finding that, although during the time when these atrocities were committed the railroad was privately owned, its subsequent acquisition by the French government makes FSIA still applicable. Abrams v. Societe Nationale des Chemins de fer Francais, 389 F.3d 61 (2d Cir. 2004). The Supreme Court denied certiorari in 2005.
5. Iwanowa v. Ford Motor Company,
67 F. Supp.2d 424 (D.N.J. 1999)
Summary: This case arises out of plaintiff’s allegations that
Ford Werke (a Ford Motor Co. subsidiary) coerced her, and thousands of
others, to perform forced labor under inhuman conditions in Germany during
World War II. Specifically, plaintiff alleged that she, along with other
Ukrainian deportees, was 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.
Summary of Court Decision: The federal district court dismissed with prejudice all of plaintiffs’ claims, finding them barred by the applicable statute of limitations and a post-WWII peace treaty. In addition, the court found that the claims were nonjusticiable under the political question doctrine.
Plaintiff Allegations: Plaintiffs alleged that the defendant’s
use of forced labor was a violation of the law of nations. Plaintiffs
also made claims for restitution and unjust enrichment under Michigan,
Delaware, and German law.
Case History: In September 1999, the plaintiffs appealed the lower
court's decision, but they withdrew their appeal in 2001.
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 under a California statute providing for compensation
to victims of slave labor under the Nazis and their allies.
Summary of Court Decision: The federal district court dismissed plaintiffs’ claims, finding that although the claims were not barred by the post-WWII peace treaty, the ATCA statute of limitations had run, and the California compensation statute was an unconstitutional infringement on the federal foreign affairs powers.
Plaintiff Allegations: 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
-
Plaintiff sought compensation under: Cal. Code Civ. Pro. § 354.6
Status: The district court’s decision was affirmed by Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir. 2003), but that decision was then amended and superseded by the Ninth Circuit in Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003), below. The U.S. Supreme Court denied certiorari in 2003.
Other published decisions: In re WWII Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D.Cal. 2000); In re WWII Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160 (N.D. Cal. 2001); Deutsch v. Turner Corp. 324 F.3d 692 (9th Cir. 2003)
Summary: In consolidated actions, Filipino plaintiffs sought damages from Japanese corporations for forced labor during WWII that plaintiffs claimed was in violation of the law of nations. They sued under the same California forced labor compensation statute mentioned above, as well under the ATCA. Defendants moved to dismiss the Complaint.
Summary of Court Decision: The district court held that a waiver provision in a World War II peace treaty barred plaintiffs' ATCA claims and any state law compensation claims.
Plaintiff Allegations: The plaintiffs alleged the following violations:
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Forced Labor in Violation of the Law of Nations
-
California Tort & Common Law: Intentional infliction of emotional distress, conversion, unjust enrichment, constructive trust, and unfair business practices prohibited by Cal. Bus. & Prof. Code § 17200.
-
Plaintiffs sued for compensation under: Cal. Code Civ. Pro. § 354.6
Case History: Like WWII Era Litigation I, the district court’s
decision was affirmed by Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir.
2003), but that decision then was amended and superseded by the Ninth
Circuit in Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003), below.
The U.S. Supreme Court denied certiorari in 2003.
8. Deutsch v. Turner Corp. 324
F.3d 692 (9th Cir. 2003)
Other published decisions: In re WWII Era Japanese Forced Labor
Litigation, 164 F. Supp. 2d 1160, (N.D. Cal. 2001) In re WWII ERA Japanese
Forced Labor Litigation, 164 F. Supp. 2d 1153 (N.D. Cal. 2001)
Summary: Plaintiff brought suit against defendant, a German corporation, seeking compensation under section 354.6 of the California Code of Civil Procedure. Plaintiff alleged that he and his brother were captured by the Nazis and brought to Auschwitz concentration camp, where they were tortured and forced to work as slaves for fourteen hours a day, seven days a week. His brother died from injuries incurred from beatings. Plaintiff claims that his labor benefited private corporations who had entered into agreements with the Nazi government.
This action was consolidated with several other actions in which the plaintiffs claimed similar injuries.
Summary of Court Decision: The Ninth Circuit found that Cal. Code
Civ. Pro. §354.6 was unconstitutional under the foreign affairs doctrine
and that the remaining tort claims were time-barred. The claims in all
the consolidated actions were dismissed.
Plaintiff Allegation: The plaintiff made the following claims:
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Forced Labor
-
California Tort & Common Law: Intentional infliction of emotional distress, quantum meruit, wrongful death, and unfair business practices prohibited by Cal.Bus. & Prof. Code § 17200.
-
Plaintiffs sued for compensation under: Cal. Code Civ. Pro. § 354.6.
Case History: This opinion superseded an opinion on the same case entered several months earlier by the Ninth Circuit. Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir. 2003). The U.S. Supreme Court denied certiorari later in 2003.
8. Burger-Fischer v. Degussa
AG.
65 F.Supp.2d 248 (D.N.J. 1999)
RECENT FOREIGN LITIGATION
20. 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 10 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.
F-K continues in Category III: War
Crimes II