Metropolitan News-Enterprise


Wednesday, October 26, 2011


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Ninth Circuit Revives War Crimes Suit Against Mining Company




An international mining company with $13 billion in assets can be sued in the United States for its alleged participation in war crimes in Papua New Guinea, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

An en banc court voted 7-4 to partially reverse the judgment in favor of London-based Rio Tinto PLC.

The defendant argued that U.S. courts has no jurisdiction, and that even if they do, the plaintiffs should have exhausted their claims in Papua New Guinea first. But the Ninth Circuit’s sharply divided en banc ruling—the case produced seven separate opinions from the 11 judges—said that claims for genocide and war crimes may be brought here and do not require exhaustion.

The litigation grows out of a civil war that gripped the island of Bougainville between 1988 and 1997. The conflict ended with an agreement granting the island the somewhat autonomous status of a province within the nation, a member of the British Commonwealth.

Bloody War

The plaintiffs, residents of the island, allege that Rio Tinto urged the government to engage in some of the bloodiest acts of the war, including a direct and deadly attack on civilians in 1990, in order to protect its lucrative mining rights on the island. Rio Tinto has mined for gold and copper in the village of Panguna since 1972, paying the government 19.1 percent of the profits.

The mining, the plaintiffs allege, has fouled the environment and destroyed sensitive cultural areas. The residents also claim that members of the local workforce, which is all black, are discriminated against in favor of white workers recruited from elsewhere.

They filed their suit a decade ago, citing the Alien Tort Statute. The law, which was part of the original Judiciary Act of 1789, has been cited in recent years by foreign nationals seeking compensation for war crimes and violations of workers’ rights and environmental rights in a number of Third World nations.

The statute grants district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The litigation has trudged back and forth between the trial and appellate courts.

Political Question

U.S. District Judge Margaret Morrow ruled in 2002 that exhaustion was not required but that all of the claims were barred by the political question doctrine. A three-judge panel voted to reverse in 2006, but the case was reheard en banc in 2008, with the case being sent back to the district judge with directions to reconsider the exhaustion issue.

On remand, Morrow concluded that it would be inappropriate to apply a “prudential exhaustion requirement” to war-crimes claims but that certain other claims, including violation of the rights to health, life, and security of the person; cruel, inhuman, and degrading treatment; international environmental violations; and a consistent pattern of gross human rights violations, were subject to exhaustion. The plaintiffs then elected to withdraw those claims, subject to the potential filing of an amended complaint at a later stage.

Judge Mary M. Schroeder, in the plurality opinion yesterday, rejected Rio Tinto’s arguments that an Alien Tort Statute suit can only be brought when there is a nexus between the United States and the claim, such as when one of the parties is located here or when the tort is alleged to have been committed here.

While the original intent of the law is somewhat obscure, Schroeder wrote, it is clear that Congress intended to apply it to piracy claims, which obviously arise outside the Unites States. She also noted that “federal courts frequently exercise jurisdiction with regard to matters occurring out of the country.”

The judge also rejected arguments that the law was not intended to apply to corporations, and that it does not contemplate aider and abettor liability for non-governmental entities.

The scope of the law has been limited, Schroeder explained, by the Supreme Court’s ruling in Sosa v. Alvarez-Machain (2004) 542 U.S. 692, to claims for violation of specific, universal, obligatory international norms. The plaintiffs’ claims for genocide, war crimes, and crimes against humanity fall into that category, arising from Rio Tinto’s alleged call for the use of military force to keep the mine open, after local residents assertedly forced its closure as a means of protecting their environment and culture, fall into that category, the judge said.

Schroeder also rejected the contention that either the political-question or the international-comity doctrine bars the suit. While different views were expressed at the outset of the litigation, she noted that the current administrations in the United States and Papua New Guinea have said that adjudication of the dispute by our courts will not injure relations between the two countries.

Schroeder’s opinion was joined by Judges Barry Silverman and Marsha Berzon.

Also joining the majority, but in separate opinions, were Judges Stephen Reinhardt, Harry Pregerson, and Johnnie Rawlinson, while Judge M. Margaret McKeown joined in part.

Reinhardt disagreed with some of Schroeder’s reasoning, but not with the result. Pregerson, joined by Rawlinson, argued that the court should have allowed the plaintiffs to sue for systematic racial discrimination, a claim that Schroeder said was not specific enough to pass muster under Sosa, and McKeown argued that the war crimes and genocide claims were inadequately pled, but that the deficiencies could potentially be cured by amendment.

Judge Carlos Bea, joined by Senior Judge Andrew Kleinfeld and Judge Consuelo Callahan, and in part by Judge Sandra Ikuta, argued in dissent that the case should be remanded for the district judge to determine “whether Rio Tinto’s alleged acts of genocide and war crimes in Papua-New Guinea—approximately 4,300 miles southwest of Hawaii, our state closest to Papua-New Guinea —had any connection with the United States,” absent which the court should find it lacks jurisdiction under the ATS.

Kleinfeld, joined by Bea and Ikuta, complained that “we on the Ninth Circuit now exercise jurisdiction over all the earth, on whatever matters we decide are so important that all civilized people should agree with us.” The ATS, he argued, merely “was intended to enable our courts to address wrongs done in the United States to foreigners and wrongs done outside any foreign state’s territory,” as in the case of piracy cited by Schroeder.

Ikuta, joined by the other three dissenters, argued that there is no Art. III jurisdiction for a suit in federal court where all of the parties are aliens. Schroeder, writing for the majority, rejected the argument, saying that ATS cases implicate federal question, not diversity, jurisdiction, so the citizenship of the parties is irrelevant.

The case is Sarei v. Rio Tinto PLC, 02-56256.


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