On the eve of the beginning of jury selection in New York, it was reported yesterday that Royal Dutch Shell settled the law suit brought against it by the son of Nigerian activist Ken Saro-Wiwa and the families of the other activists killed with him.  The plaintiffs alleged that Shell officials helped furnish Nigerian police with weapons, participated in security sweeps of the area, and hired government troops that shot at villagers protesting the construction of a pipeline. Moreover, that Shell helped the government capture and hang Saro-Wiwa, John Kpuinen, Saturday Doobee, Felix Nuate, Daniel Gbokoo and Dr. Barinem Kiobel on Nov. 10, 1995.

Throughout the fourteen years of litigation Shell denied any involvement in the human rights abuses committed by the Nigerian government but Malcolm Brinded, Shell’s executive director of exploration and production said that the settlement was a step towards reconciliation.”This gesture also acknowledges that, even though Shell had no part in the violence that took place, the plaintiffs and others have suffered,”

The Wiwa family was represented by Jenny Green of the Center for Constitutional Rights. Green said the settlment send a a message to other multinationals that operate in developing countries,”You can’t commit human rights violations as a part of doing business,” she said. “A corporation can’t act with impunity. And we think there is accountability in this settlement.”

As we indicated in an earlier blog, this case was filed under the Alien Torts Claims Act. It is not yet possible to get a criminal case for violation of humanitarian law in an international forum. But the case against Shell was a significant milestone is accountability for corporations and their obligations to comply with human rights standards.

In addition to the settlement, Shell will pay lawyers fees for the plaintiffs. One third of the settlement will be placed in a trust fund to be used on community development projects for the Ogoniland region, which is Shell operated and where Saro-Wiwa and the others lived.

The International Criminal Court (ICC) indicted several people for the atrocities being committed in Darfur. The most famous of those wanted is of course, the president of Sudan, Omar Hassan Ahmad al-Bashir, who has mocked the tribbunal by traveling internationally since his arrest warrant was issued. But, the ICC indicted a rebel leader as well, Bahr Idriss Abu Garda (“Abu Garda”), a Zaghawa tribal member who is accused of leading an attack on an African Union peace keeping location in Northern Darfur. Twelve peace keepers died as a result of the attack. In a surprising  move, Abu Garda submitted to the  jurisdiction of  the ICC and voluntarily turned himself to an undisclosed ICC location. As a result of his cooperation, the ICC issued a summons to appear rather than an arrest warrant. This was the first time the court used a summons to appear. The Registrar of the Court, Ms Silvana Arbia, welcomed his arrival: “The voluntary appearance of Abu Garda might serve to encourage other suspects currently at large to come before the Court to be heard with all guarantees of a fair trial”. This is a milestone moment for the court and for all the nations who support the ICC. Hopefully, Abu Garda, although the first,  will not be the  last defendant to  appear voluntarily.

The Sri Lankan governement finally crushed the Tamil Tiger rebellion last week, killing the top three rebel commanders including their leader, Velupillai Prabhakaran The government ignored the pleaas of the U.N. and most of the Europeans nations to allow civilians to escape from the last contested areaa. Civilian casualties are said to be very high.  The non Tamil population celebrated the end of the Tiger’s reign of terror, but Tamil people were conspicuously absent from the celebration. Discrimination against the Tamil ethnic group is pervasive in the country and some felt that Prabharkaran’s tactics gave the few Tamil elected officials bargaining chips  in governement negotiations. Sensing an opportunity perhaps for real peace, President Mahinda Rajapaksathe delivered  a speech to the country which included a message to the Tamil ethnic minority, which he delivered in their own language. He alluded to having a power sharing agreement that included the Tamils.  Peace can be elusive though, and the lull in fighting is not necessarily a guarantee for peace.  Twenty-five years of fighting leaves plenty of memories of injustice and rebellions are easily made. Two things need to happen to insure peace. Government has to offer full participation and representation to the Tamil minority, and atrocities committed during the war, on both sides must be investigated and prosecuted. President Rajapaksathe can make  a good first step by allowing medical personnel and U.N. representatives into the Tamil area so that civilians who have been without medical assistance and in some cases without food, can receive immediate aid.

Ordinarily corporations are not mentioned in the discussions of liability for humanitarian crimes, but there are two matters which crept into the news recently that deserve mention here.  In the Southern District of New York, a trial date has been set in Ken Wiwa, et al. v. Royal Dutch Shell Co., et  al., the case brought by the family of Nigerian activist Ken Saro-Wiwa against Royal Dutch Shell, alleging that Shell was complicit in the Nigerian government’s execution of Saro-Wiwa and eight other activities in 1995. The second matter was the release of the results of the Chiquita Brands International, independent committee of directors’  investigation into Chiquita’s  payment of bribes to terrorists in Columbia, as reported in Law.com’s International Law Blog. The report was submitted to the court as part of Chiquita’s defense against claims made under the Alien Tort Claims Act by families of persons killed by the Colombian groups.

Discussion of corporate liability for humanitarian crimes is rare because, with some limited exceptions from the Nuremberg trials, international humanitarian law has developed in the context of individual liability and secondly, many legal systems throughout the world do not recognize legal persons, thus prosecution of legal persons is not possible. There is some movement on this point as several recent conventions and treaties encourage signator nations to create criminal liability for legal persons in their domestic codes. The Convention Against Transnational Organized Crime is an example of  one such convention. However, liability for legal persons for war crimes, for example, is still out of reach. Legal scholars in the humanitarian area are developing theories of liability for corporations for crimes against humanity and war crimes, particularly in the environmental area, but currently the only way to bring a corporation to account for humanitarian type violations and other human rights abuses is through the Alien Torts Claims Act.

Without commenting on the merits of either case, the facts that have been revealed in both cases are horrific, and highlight the way in which activity which we normally associate with crimes against humanity and/or war crimes can create impunity when the activity is associated with corporations. As we keep watch on developments in the two cases, it becomes increasingly clear that international humanitarian law must develop and implement a solid theory of corporate criminal liability for crimes against humanity and war crimes.

The ICTY Appeals Chamber issued a decision upholding the convictions of MRKŠIĆ and ŠLJIVANČANIN for the torture and killings of Croat and other non-Serb prisoners of war taken from the Vukovar hospital and ultimately buried in a mass grave at Ovčara. In addition to upholding the convictions, the Appeals Chamber also increased the sentence of ŠLJIVANČANIN from five years to seventeen years because of the seriousness of his involvement. At the time of the event in 1991, ŠLJIVANČANIN was a major in the JNA and was in charge of removing the prisoners from the hospital. Under the court’s analysis, he had a duty under Geneva III to ensure the safety of the prisoners until they were released or repatriated. Instead, following orders ŠLJIVANČANIN withdrew JNA forces, despite knowing the prisoners were being beaten and tortured and ultimately left their fate in the hands of a paramilitary group, the members of which killed and buried 200 of the prisoners. The Appeals Chamber ruled that despite the fact ŠLJIVANČANIN had orders to withdraw, international humanitarian law required him to ensure the safety of the prisoners.

In an interesting part of the opinion, the Appeals Chamber overruled the portion of the Trial Chamber’s finding that in order to establish crimes against humanity, the victims must be civilians. The Appeals Chamber ruled that the chapeau for crimes against humanity only required the attack be aimed at civilians. It did not require all victims to be civilians. Ultimately, in the case at hand it did not matter, as the Appeals Chamber found that the Prosecution had not proven it was the defendants’ intention to attack civilians.

In other news last week, the Special Tribunal for Lebanon, created by the U.N. Security Council for the investigation of the killing of Rafik Harari in Lebanon released the last four suspects stating there was insufficient evidence to hold them further. Altogether nine individuals had been arrested and detained in connection with Harari’s death. Five of the suspects were released when the tribunal opened, leaving the last four, all pro-Syrian generals, in custody. In total, the defendants had been in detention for 44 months. It is not clear how the release of all suspects will impact the ability of the tribunal to move forward.

The prosecution of  Charles Taylor, former president of Liberia, in the Special Court of Sierra Leone, sitting in special session at the Hague, came to a conclusion in February. Since that time the court has been weighing defense motions for an acquittal alleging that the prosecutor’s evidence failed to establish Mr. Taylor had committed war crimes or crimes against humanity. On Monday, the court ruled in strong language  it “wholly” rejected the motion for acquittal. The trial has been set to resume on June 29th and it is expected that the defense will call Mr. Taylor as its first witness. A recent editorial on allafrica.com questioned why the Blaise Campoare, current president of Burkina Faso was not  also on trial. The writer noted that it was publicly know that Campoare supported Taylor during the civil war in Liberia and helped finance his activities in Sierra Leone. That question will remain for another day. For now, Mr. Taylor must continue to wait for his fate to play out in court.

Last week the International Law Observer reported that the U.N. Special Rapporteur on the human rights situation in the Palestinian territories occupied since 1967, Richard Falk, filed the results of his investigation into the Israeli offensive in Gaza which started in December of 2008 and ended January 2009. The Rapporteur analyzed whether the level of force Israel used in response to rocket attacks by the Palestinians was justified. He first laid out the basis for assessing whether Israel should be held accountable under international Law, dismissing Israel’s claim that its status as an occupying force ceased in 2005. Thereafter, the rapporteur analyzed the laws of war and concluded the level of Israeli force was not justified, focusing particularly on the number of civilian casualties as well as the fact that Israel blatantly refused to allow civilians to leave the area during its assault. He concluded that Israel may very well have committed war crimes and called for a full U.N. inquiry. The introduction to the report also describes the disgraceful way in which Israel treated the UN Rapporteur, who was arrested, thrown in a cell, subjected to “excessive body searches” and then deported. U.N. Secretary-General Ban Ki-Moon announced the findings today and indicated that much work needs to be done to resolve the situation.

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