Gaza and Alien Tort

The United States Alien Tort Statute or Alien Tort Claims Act (ATCA) may be the answer or part of the answer to the horrendous problem of how to pay for recovery in Gaza. American companies and other legally recognized entities holding assets in the United States may not only be liable for damages in view of complicity in crimes committed in Gaza against international law, but it may even be possible to bring action against them in American courts. Part of the basis for this complicity could be having knowingly sold white phosphorous and high tech military equipment to an entity known for the use of such equipment in violation of international law.  Wanton negligence with respect to the lives and property of non-combattant civilians would be one count. Interfering with the provision of medical assistance to the injured would be another.

But before I explain how the Alien Tort Statute may help, let me first amplify an earlier blog (22 January 2009)  on the applicability of the law of tort itself to the Gazan situation.

The law of tort determines responsibility for damage suffered by one party as the result of the malice or negligence of another party. When I see the images of rows of houses reduced to rubble in Gaza, I try to place myself in my imagination in the place of the surviving owners.  Grief at the loss of family members who did not survive – or who are convalescing or incapacitated – will be tempered by the conviction that "they would have wanted" us to carry on.

But where to start? And how to pay for the mammoth costs? Even just clearing away the debris will be a major expense.  I do not know with what frequency Gazan householders take out insurance on their houses and apartments, but I do know that any such policies – have ever held in North America have without exception excluded coverage for damage due to acts of war, insurrection and riots, so that not much relief is to be expected from that quarter. So who is to pay? 

It is clearly not fair that the burden should on the individual homeowners and occupants of apartments in Gaza. The damage is clearly not their fault. Many of them may not even have voted for the Hamas government!  Even those who did, in fact, vote for Hamas did not, for all that, deserve to have their houses destroyed.  More relevantly, in many, probably most cases, there was no Hamas fighter standing beside, crouching behind or hiding within the dwellings which were fired on and destroyed. Remember the fake picture published by Israeli public relations of the Hamas fighter photographed beside the UN school destroyed by Israeli fire – with lethal results to non-combattants.  The photograph turned out to have been taken a year earlier, not during the minutes and hours preceding the atrocity. It had been dug out of the archives in an attempt to defend the undefendable.

I am reminded of a friend and tenant of one of my aunts who once tried to help eliminate unwanted raccoons from the attic by firing an old pistol at them which he or his father had brought back from one of the world wars as a trophy.  Luckily, the bullets did not damage the property of any neighbours, although they did make impressively large holes in my aunt’s ceiling – showing, by the way, that the old cartridges used were not in keeping with the Geneva Convention ban on dumdums! The point here is that if the bullets had damaged a neighbour’s house, both my aunt and her tenant would have been liable. 

The same principle applies to an Israeli  hunt- and- destroy mission going after Qassam rocketeers. One can sympathize with Israelis not being particularly pleased about the Qassam rockets, but a modicum of care is called for in trying to eliminate them.  My aunt and her tenant would have been in bad trouble if a child had been injured by any of the bullets fired at those raccoons. Death and injury caused to civilians and any avoidable incidental damage caused to private property and non-military public facilities in the course of the Israeli attack on the Qassam rocketeers is clearly a liability which falls on whoever must assume responsibility for  the actions of the Israeli Defence Force – and on any other parties who were complicit by either encouraging the attack or by knowingly providing the means by which it was carried out.

The amount of damage done to people’s houses, schools and hospitals is tremendous. It was not the fault of their owners, occupants and users.  There is a clear prima facie case for saying that the cause of the damage was either malice or negligence on the part of Israeli authorities.  This is putting it mildly. Chomsky’s reading is that we what we are dealing with might better be described as "depraved indifference," although there is, according to him, "no good term for this form of moral depravity, arguably worse than deliberate murder, and all too familiar." http://www.zmag.org/znet/viewArticle/20316 (20 January 2009).

The problem is to find a court which will hear the case for the payment of damages. Such a case would be, I suspect, altogether too much for the much-vaunted independence of Israeli courts. A Gazan court might gladly hear the matter, but would have no power to enforce its decisions.  This is where the Alien Tort Statute or Alien Tort Claims Act (ATCA) comes in.  Dating from 1789, this law gives district courts located in the United States "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" (as quoted by the Wikipedia article). This statute makes it possible for citizens of a foreign country to sue Americans, American companies and other entities having standing under American law – and it makes it possible for them to do so in an American court for damage they have suffered as the result of violations of international law.

ATCA had fallen into disuse but then in 1980 the family of a Paraguayan man who had been tortured to death used it to recover damages when the former torturer made the mistake of moving to the United States (Filartiga v. Pena-Irala).  The Canadian petroleum company Talisman was taken to court under ATCA by the Presbyterian Church of Sudan on behalf of the population of the southern part of that country, the allegation being that Talisman had been complicit in the bombing of villages and the killing, forced displacement and enslavement of non-combattants by Sudanese government forces. Talisman finally got off the hook, although not before coming under heavy pressure from civil society groups and deciding to sell off all of its interests in Sudan.  Another petroleum company, Unocal, was also sued under ATCA by a group of people from Myanmar and found to be complicit in the crimes of forced labour, murder and rape committed by the Myanmar military in protecting a pipeline Unocal was involved in building. (Unocal was, however, absolved of complicity in torture.)  Reference: "Corporate Complicity in Human Rights Abuses", a discussion paper (in MS Word doc format, accessed 2009-02-01) by Vuyelwa Kuuya, Research Fellow, Lauterpacht Centre for International Law, University of Cambridge, November 2008.

Another of the many corporate "victims" of action under ACTA is Chiquita Brands, which has been accused of complicity in the deaths "of the hundreds of victims of the AUC’s murderous rampage in Columbia" (J. Robert Brown, "Chiquita and the Costs of Doing Business" (posted 21 March 2008; accessed 2 Feb. 2009). There was even a felony charge involving payments to the AUC. The AUC (Autodefensas Unidas de Colombia) is a paramilitary group classified by the U.S. government as a terrorist organization – the savage mirror-image on the right of the FARC on the supposed left.  The money paid to AUC by Chiquita enabled it to purchase the arms and munitions used to commit acts of terrorism and murder.  The story is obviously more complicated that what can be analyzed here. And the question of a felony – to which Chiquita pleaded guilty on 6 March 2007 – also complicates matters since we have been trying to stick to the law of tort.  But the basic point illustrated here is that the act of supplying money and giving or selling arms to an organization known to commit crimes under international law can generate financial liability to pay compensation and damages. 

The point is that manufacturers and arms dealers who sell jet fighter aircraft, attack helicopters, tanks, bulldozers and rockets – not to mention white phosphorous and cluster munitions – should consider what the products they sell are likely to be used for. They may be liable for the cost of rebuilding Gazan civilian infrastructure and private homes, not to mention compensation for personal injuries, emotional trauma and loss of loved ones.

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