Paul Bremer, during his tenure as Viceroy, granted sweeping immunities to U.S. contractors in Iraq but is limited to the official acts under their contracts. What happens when the official acts violate international law? How about unofficial acts? I've read that it would be difficult to prosecute them in Iraqi courts, but this decision suggests that the Alien Tort Statute may provide a way to sue U.S. contractors in U.S. courts. The case in question is Presbyterian Church of Sudan v. Talisman Energy, Inc. (2005 WL 1385326 for you lawyers).
The Church, among other things, alleged a conspiracy between the Sudanese government and Talisman Energy to clear out Sudanese Christians from possible oil-producing areas of southern Sudan. The complaint alleges that the Sudanese government was using Talisman airfields and equipment for its attacks. There are references in the complaint to specific incidents of government attacks timed right before Talisman began exploring for oil in certain areas.
39. Another Talisman airfield, known as the Unity field is used as military airbase for attacks on civilians in neighboring villages, including Kaikang, a village of 7,000. which was bombed and burned until it was uninhabitable. Recently, two Hind helicopter gun ships were using the Unity field as a base of operations for daily sorties against civilian targets.
- GNPOC has provided vehicles for use by the Government in its war against the ethnic and religious minorities in the south. For example, at the end of 1998, GNPOC handed over some 50 transport vehicles painted in camouflage to the Government in a ceremony at Bentiu. When its oil development activities expanded westward, Talisman worked with the Government to establish a military garrison at Wangkei. Talisman facilitated shipments of four barges providing fuel and rations for this purpose.
- In Block 4, Talisman began operations around the village of Mankien. Just before Talisman announced its drilling operations in November 2000, Government aircraft_bombed local villages in Block 4 wounding at least 50 people in an effort to displace local inhabitants.
- In 2001, Talisman expanded its operations in Block 4. This was preceded by an extensive Government military operation which resulted in the devastation of at least 7 Nuer villages and the bombing of other nearby villages, all of which were inhabited by non-Muslim, African Sudanese. In March 2001, Christian Aid published a report linking Talisman's oil exploration activities to military strikes in the oil concession areas: "There is already concern about new displacement from heavily populated SPLA-controlled areas close to the town of Mankien in Block 4, where Talisman is drilling three new wells. Shortly before Talimsna announced the venture in November 2000, helicopter gunships firing rockets filled with metal shards wounded more than 50 people in a two-minute attack on Mankien. Ten days after the announcement, government Antonovs subjected the villages in the area to high-altitude, indiscriminate bombing."
Talisman has argued, in its attempts to have the claim dismissed, that customary international law could not include private allegations of human rights allegations against corporations because there were no treaties in place.
The court disagreed, finding that dicta in Sosa v. Alvarez-Machain, a 2004 Supreme Court decision, supported finding liability in private actions, as well as noting other court cases including the Nicaragua cases that support its decision. The court did note that the executive branch has objected to ATS (Alien Tort Statute) cases when a U.S. corporation has been a defendant, especially in the Agent Orange Litigation and South African Apartheid litigation.
It is worth pointing out that Talisman is a Canadian company although it does have U.S. subsidiaries. How will the U.S. government react now that this case is being allowed to proceed?
As I mentioned above, there have been special laws put in place that apply to U.S. contractors in Iraq, especially of the Blackwater variety, but from what I can tell, these protections are only applicable in Iraqi courts.
I think this Sudanese case will be interesting to watch as it proceeds because it suggests the complicity of multi-national corporations in the genocide in Sudan. It will also be interesting to see if any other ATS claims appear now that the path seems to be cleared.
Any corrections are appreciated and if this has already be diaried, let me know.