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.

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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 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.

It is hard to get much public notice when you are yesterday’s tragedy. Apparently, the Special Court of Sierra Leone has been quietly running out of money. The court predicted it would not have enough funds to carry it past April. The Special Court does not have a UN funded budget like the ICTR and the ICTY, rather contributions are voluntary, and with so much else going on in the world, the flow of contributions had diminished. With the Charles Taylor trial still in progress having sufficient funds to “keep the court doors open” is extremely important. Allafrica.com reported today that the court received $6.5 million in fresh contributions that will allow it to stay open through June, but the Taylor trial is expected to last through the end of 2009. The American/European style of justice is expensive. Those nations who volunteered to contribute should step up and do so. The court is in the middle of one of its most important trials. No one involved with the court needs to be distracted by trying to calculate whether the court can make it to the end of the trial. If a tribunal can be set up and financed to investigate the death of one man, Rafik Hariri of Lebanon, surely the funds can be found to finish the task of ending impunity for the deaths of over 20,000 civilians in Sierra Leone, the maiming of another 30,000 and the rape of over 200,000 women and girls.

After too many decades of delay, the Extraordinary Chambers of the Courts of Cambodia have finally gotten the trials of the last remaining Khmer Rouge defendants under way. The tribunal is a mixed court, sitting in Cambodia, with Cambodian judges and some international judges as well. Time has taken its toll on the quest for justice as most of the people who should have been tried for the deaths of 1.7 million Cambodians have already died themselves from natural causes. The trial of one of the five remaining opened this week. But, the trial takes place with a cloud over it. Defense lawyer, Jacques Verges, has repeated allegations made by other counsel as well that the Cambodian tribunal staff were required to pay kickbacks for their jobs, thereby destroying the legitimacy of the Tribunal. Evidently, the UN, aware of the allegations conducted an inquiry into the situation but did not release the findings. Cambodia will not get another opportunity to set the record straight on these atrocities. It is terribly important that the allegations of corruption be addressed openly, so the process can go forward with out taint.

In a sad note, the New York Times reported that for the most part, young Cambodians do not know about the Khmer Rouge atrocities despite the fact that almost all of their older relatives lost family members during this period. The subject has not been taught in schools and the children do not believe such brutality could actually have occurred. One wonders whether this is a good thing or not. This generation has not grown up with the fear and dread that haunts the survivors and that’s good. But one wonders, if they don’t know about the horror, would they be able to recognize should it come around again?

Perhaps only time will tell.

The former president of Peru, Alberto Fujimori, was sentenced last Tuesday to 25 years in prison for the deaths of 25 people. The trial lasted for fifteen months but did not get much press in the US. During Fujimori’s administration governement forces fought a brutal battle against the leftist group Tupac Amaru and Maoist Shining Path insurgencies. Atrocities were committed on both sides. Fujimori’s government is generally credited with bring economic stability back to Peru. However, during the course of the struggle 70,000 Peruvians were killed or disappeared. The case against Fujimori involved the killing of 25 civilians in two different attacks by “La Colina” a military death squad. He was also charged with the kidnapping of two journalists. During the course of the trial Fujimori repeatedly stated he was innocent because he did not order the deaths of anyone. He was clearly more defiant in the earlier stages of the trial, not acknowledging any human rights abuses. As the trial wound up, he took the stand in his own defense and acknowledged that some human rights abuses had occurred and that he was sorry for them but did not order them. He implored the court to remember that he bought peace and stability to 22 million Peruvians.

The people in Peru are split as to whether he should have been convicted. The relatives of the disappeared and killed pressed for his conviction while others hail him as a hero, including his daughter who is a possible presidential candidate for 2011.

Of course, in law, one can be guilty of a murder, even if they did not order it themselves. Fujimori had a responsibility as head of the state to prevent his army from abusing, killing and torturing civilians. If he did not actually order the killings, he should have punished offenders when it became known that the killings were occurring. His failure or unwillingness to do so, exposed him to criminal liability. If the Fujimori conviction withstands the appeal process, it will be a milestone, a signal to heads of states. One cannot use any and all tactics to fight insurgents. The rules of war fare apply even when the fight is a protracted one. We are living in interesting times, a former head of state found guilty of atrocities committed under his watch, a second on trial (Charles Taylor, former President of Liberia), and a sitting head of state under indictment for similar kinds of crimes. Perhaps these cases signal a real shift in the world’s acceptance of impunity for crimes committed against civilians. Now that would be revolutionary!!

Sudan’s president Hassan Omar al-Bashir thumbed his nose at the international community last week and made three trips outside of Sudan, despite the fact the ICC Prosecutor has indicted him and the court issued an arrest warrant against him. He is the first sitting head of state against whom an arrest warrant has been issued. The ICC indicted Bashir for crimes against humanity and war crimes in connection with the atrocities occurring in Darfur. The court stopped short of including charges of genocide as had been requested by the prosecutor. Bashir’s indictment and subsequent arrest warrant caused turmoil among African leaders and within the African Union. In fact, the AU petitioned the UN to delay both the indictment as well as the issuance of the arrest warrant, not because they support Bashir but because they have serious concerns about further destabilizing Sudan and the peace process underway. In addition, African leaders are a little wary of an international court that only seems to be indicting Africans. That is a legitimate concern. Most of the African countries are barely 50 years into independence from former colonial powers, and it is those same powers that now critique corruption and unstable African governments. You don’t have to scratch the surface of many conflicts in Africa to see the remnants of the old colonial hand and of contemporary World Bank polices. The ICC can gain some much needed credibility amongst African leaders by bringing a case against some humanitarian law violators who are NOT African. And there are several that are good potential targets. The ICC prosecutor says his office is working on bringing other cases. Time will tell whether the effort is sincere.

Nonetheless, on going support for Bashir is not warranted. The so-called peace process has been going on in the Darfur region since at least 2005 and no peace has been achieved. Darfurians continue to be attacked and die. And now Bashir is expelling all the NGOs who have been keeping hundreds of thousands of people fed. Thabo Mbeki, former president of SOuth Africa and now head of the AU’s Sudan special panel visited Sudan this past week to help further the peace negotiations. It may be too little too late. Archbishop Desmond Tutu appealed to the conscience of the continent to support the arrest of Bashir. But Bashir is not just Africa’s problem. Will the rest of the world have the resolve to do what they have promised to do? Will Bashir be arrested as he brazenly travels abroad? This is a fascinating case for the entire world. It is a time for African leaders to be especially courageous and take the high moral road, and for the rest of the nations who signed the Rome Treaty to do as they promised. Arrest Bashir and let justice run its course.