What The Philippines Must Do To Defend Itself From China

Journal of Political Risk, Vol. 7, No. 9, September 2019

By Sannie Evan Malala

A Philippine flag flutters as the nuclear-powered aircraft carrier USS Ronald Reagan (CVN-76) is seen anchored off Manila bay on June 26, 2018. – A US aircraft carrier visited the Philippines on June 26, the third such call in four months, as its admiral hailed America’s “enduring presence” in a region where China’s military build-up had raised tensions. Ted Aljibe / AFP / Getty Images.

The Philippines is strategically located in Southeast Asia, at the fault-line between Communist China and the democratic nations of the Americas and Europe. In the north is East Asia, full of wealthy market democracies in increasing conflict with China. To the southwest are countries seeking to defend their exclusive economic zones from China, including Indonesia, Vietnam, Malaysia, and Brunei. As China’s power grows, the fault-line is widening and trying to straddle the middle will only result in our falling into the chasm. The Philippines must choose a side – subservience to China or joining a coalition of the willing in defense of each country’s independence and democracy from the Chinese hegemon. The Philippines has yet to take advantage of its full potential and has become economically poor and militarily weak, primarily due to corruption, internal armed struggle, and its growing relationship with China. For the Philippines to avoid being a satellite of China, this is what we must do. Continue reading

As MENA States Grow Increasingly Repressive, Businesses Should Lead Reform

Journal of Political Risk, Vol. 7, No. 8, August 2019

By Dr. Ramy Abdu

Female arabic manager is showing the engineer what should be done next. Getty

Nine years after the so-called “Arab Spring” protests swept the Middle East and North Africa, with mostly young people calling for the end of autocracy and respect for their human rights, civil and human rights are more at risk than ever. Governments across the region engage in vicious, factional wars for control (Syria, Yemen, Libya); are more dictatorial than ever (Egypt, Saudi Arabia); or continue to colonize and control populations with fewer means to defend themselves (Israel of Palestinians and Morocco of Western Sahara). When new civil uprisings do occur (Sudan, Algeria), the entrenched elites fight to fend off popular democracy.

The resulting instability and repression have left the civil-society organizations that normally advocate for human rights fragile and fractured. The United Nations’ Office of the High Commissioner for Human Rights (OHCHR) was chartered to serve as the global watchdog, calling out governments that abrogate the conventions adopted to protect the people. But that work, in which it has engaged intensively since 2002, has yielded only minor victories. Continue reading

Stay the Course on China: An Open Letter to President Trump

The US Constitution and flag. Photo: Daniel Bendjy/Getty Images

Dear President Trump,

Over America’s exceptional history, successive generations have risen to the challenge of protecting and furthering our founding principles, and defeating existential threats to our liberties and those of our allies. Today, our generation is challenged to do the same by a virulent and increasingly dangerous threat to human freedoms – the Chinese Communist Party (CCP) through the nation it misrules:  the People’s Republic of China (PRC).

The Chinese Communists’ stated ambitions are antithetical to America’s strategic interests, and the PRC is increasingly taking actions that imperil the United States and our allies. The past forty years during which America pursued an open policy of “engagement” with the PRC have contributed materially to the incremental erosion of U.S. national security.

This cannot be permitted to continue.

Continue reading

Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang

Journal of Political Risk, Vol. 7, No. 7, July 2019

By Adrian Zenz, Independent Researcher [1]

Introduction

A Uyghur woman holds her son in Kashgar old town, northwestern Xinjiang Uyghur Autonomous Region in China, July 8, 2017. Over 10 million Uyghur and other Turkic Muslims live in Xinjiang. The Chinese Communist Party (CCP) has for decades eroded the Uyghur language, traditions, and cultural identity, leading to civil unrest. The CCP cracked down harshly, including through detention of up to 1.5 million Turkic Muslims in reeducation camps. Children of detained parents are often kept in highly secure facilities for children as young as infants, as detailed in this article. Photo by Guillaume Payen/SOPA Images/LightRocket via Getty Images

In spring 2017, the Xinjiang Uyghur Autonomous Region (XUAR) under its new Party secretary Chen Quanguo embarked on an unprecedented internment campaign. Subsequently, up to 1.5 million predominantly Turkic minorities (notably Uyghur and Kazakh) were swept into different types of political re-education, detention and “training” camps.[2]

About half a year after the onset of this horrifying campaign, first reports started to emerge that the children of so-called “double-detained” parents were being placed in state care. Due to a complete lack of official reporting and the state’s denial that this internment campaign is even taking place, it has been extremely difficult to ascertain the scale and exact nature of such intergenerational separation. Some informants claim to know that these children are kept in orphanages. Others, including some of the affected parents, were told that they are being sheltered in regular public schools with boarding facilities. This includes boarding preschools that can care for children who are younger than the regular school age.

The possibility that the Chinese state is implementing a larger-scale or even systematic policy of intergenerational separation of parents and children is a highly emotional topic among the affected exile communities. Few issues have the potential to inspire more concern about cultural or physical state-sponsored genocide than this one. Notably, Xinjiang’s government appears to be as nervous about the children’s situation as they are about the internment camps. When Associated Press (AP) reporters went to Hotan City’s “Kindness Kindergarten”, which reportedly shelters four children of one of their Uyghur informants and photographed the facility, they were immediately surrounded by armed police and ordered to delete their visual evidence.[3]

In the context of this urgent human rights crisis and challenging research context, this article attempts to systematically present and analyze all available evidence regarding state-initiated intergenerational separation in the context of Xinjiang’s political re-education and internment campaign. This evidence consists of government policy and implementation directives, different kinds of official reports and related state or private media articles, educational statistics, public construction and procurement bids, village-based work team reports, and official propaganda pieces that extol the benefits of the so-called “vocational training”.

Government documents provide clear evidence that there are large numbers of children with one or both parents in some form of internment. These documents specifically refer to “couples where both partners are detained in re-education” (夫妻双方被收教), or “couples where both partners are in vocational training center” (夫妻双方在教培中心).[4] They also testify to the fact that this has developed into a concrete and urgent societal issue. From early 2018, the state began to issue urgent directives on how to deal with the virtually orphaned children of single or “double-detained” parents, be it through special care institutions or the regular education system. Local governments began to require schools to provide one-on-one “psychological counseling” and to proactively scan the state of mind of students with parents in detention in order to preempt trouble. Schools must now be prepared to mobilize entire teams of teachers, staff and other students to deal with such students when they are in distress, as well as taking measures for making up for their loss of family ties. Other evidence shows that schools have developed “emergency response plans” that include dealing with students with detained parents in a timely and effective manner in order to prevent violent incidents.

Additionally, the state has issued very detailed forms that are to be used by local authorities to log the situation of children with one or both parents in extrajudicial internment or prison. This data, which is fed into extensive databases, indicates that in some Uyghur majority regions, significant numbers of children are without the care of both parents. Government data shows that just in one particular township in such a region, well over 400 minors have both parents in some form of internment, with many others having one parent interned.[5] Children whose parents are in prison, detention, re-education or “training” are classified into a special needs category that is eligible for state subsidies and for receiving “centralized care”. This “care” can take place in public boarding schools or in special children’s shelters.

This does not mean, however, that these children are well taken care of. The real-life report of a Han Chinese volunteer teacher, posted on the Jiangxi Teacher’s College website, paints a harrowing picture of the consequences of systematic intergenerational separation.[6] The young man taught in an impoverished rural primary school in southern Xinjiang, where pupils were mostly without parents due to seasonal work or internment in vocational training camps. The young teacher wrote that these Uyghur children were in an extremely pitiful state, wearing thin clothes despite freezing December weather. The classroom was filled with an unbearable stench because the children neither washed nor changed their clothes.

In addition, the government has issued propaganda pieces that argue that the children of detained parents derive significant benefits from this separation, that both parents and children need to “study”, or that the “left-behind children” of parents who “work” are “happily growing up under the loving care of the Party and the government”.[7]

Overall, this article presents several key areas of evidence that in combination provide significant and potentially incriminating evidence for a coordinated state campaign to promote different forms of intergenerational separation. Xinjiang has not only created most of the necessary preconditions for systematically creating varying and substantial degrees of intergenerational separation; when placed in the wider context of Xinjiang’s securitization drive, the combined available evidence tells a story of the state’s dramatic race against time to create a vast and multi-layered care system that enables it to provide full-time or near full-time care for all children from a very young age (in several instances for infants that are only a few months old). In some Uyghur majority population regions in southern Xinjiang, preschool enrolment more than quadrupled in recent years, exceeding the average national enrolment growth rate by over 12 times.

In particular, this state care is taking place in highly secured, centralized boarding facilities, independently of any guardianship that these children may or may not have. Driven by multi-billion dollar budgets, tight deadlines, and sophisticated digital database systems, this unprecedented campaign has enabled Xinjiang’s government to assimilate and indoctrinate children in closed environments by separating them from their parents. This separation can take various forms and degrees, including full daycare during work days, entire work weeks, and longer-term full-time separation. When taking into account the threat that Xinjiang’s education system makes children report on their parents, it is safe to assume that parental influence in general, and intergenerational cultural and religious transmission in particular, are being drastically reduced. In some instances, parental influence is quite possibly almost completely eliminated.

The available evidence presented in this article can be viewed from four angles. Firstly, existing witness accounts from former detainees and their relatives indicate quite consistently that children whose parents are in some form of internment are put into either orphanages or boarding schools, with the latter case being more prevalent. Secondly, government plans show that the state is requiring local authorities and schools to comprehensively deal with children whose parents are in some form of internment. Thirdly, official documents testify to an entire set of policies, most of them initiated within the first six months of Chen Quanguo’s deployment to Xinjiang, that are designed to systematically boost the ability of the state to house children of all ages in increasingly centralized and highly securitized educational boarding facilities. Fourthly, government reports and construction bids give evidence of the construction of such highly secured boarding facilities in the public education system and through special child protection centers. All this took place in the second half of 2018, at a time when Xinjiang’s internment campaign was affecting more and more population segments, and when re-education and other detention facilities were expanding significantly in both number and size.[8]

It is only with what I refer to as the weaponization of education and social care systems that the region’s hair-raising political re-education and transformation drive is achieving its terrifying degree of seamless comprehensiveness. Increasing degrees of intergenerational separation are very likely a deliberate strategy and crucial element in the state’s systematic campaign of social re-engineering and cultural genocide in Xinjiang. Continue reading

Celebrating Independence In Al Anbar, Iraq

Journal of Political Risk, Vol. 7, No. 7, July 2019

By Heath Hansen

Al Anbar Province, Iraq, in Summer 2007. Photo: Heath Hansen.

Even though it was only 0500, the heat was already approaching the high 90’s and I could feel my sticky uniform only too well, sandwiched between skin and body armor. The Humvee engines were idling and the smell of JP-8 fuel stung my nostrils. “Hansen, 2nd platoon’s electronic warfare vehicle is down. We’ll need you in the lead element for the mission. You’re truck commander.”

“Roger, sir,” I replied to my platoon leader, “My truck’s ready, I’ll let the crew know.” More than four years had passed since the overthrow of Saddam Hussein and we were still trying to secure independence for this country. It was the summer of 2007, in Anbar Province, and my company was headed out for another assignment in Operation Iraqi Freedom.

Continue reading

Brainwashing, Police Guards and Coercive Internment: Evidence from Chinese Government Documents about the Nature and Extent of Xinjiang’s “Vocational Training Internment Camps”

Journal of Political Risk, Vol. 7, No. 7, July 2019

By Adrian Zenz, Independent Researcher

Introduction

The women were kept in their classroom behind a gated metal fence. From Figure 6, below. Source: anonymous informant.

In the wake of growing international criticism, the Chinese government has sought to counter human rights accusations over its re-education and internment campaign in Xinjiang through an elaborate propaganda campaign. This campaign portrays the region’s network of so-called “Vocational Skills Education Training Centers” (zhiye jineng jiaoyu peixun zhongxin 职业技能教育培训中心) as benign training institutions that offer persons who committed minor offenses a gracious and beneficial alternative to formal prosecution. Since late 2018, the state has invited media and official representatives from other nations and even from the western media to participate in official and closely-chaperoned tours of a select number of “showcase” centers.[1]

Based on the government’s own statements, this article seeks to decisively refute these propaganda claims. Official documents and related media reports that are not designed for international audiences paint a very different picture of these “centers” – a picture that confirms the growing body of first-hand witness accounts.

Below, Xinjiang’s “Vocational Skills Education Training Centers” are referred to as “Vocational Training Internment Camps” (VTICs). This terminology acknowledges that these facilities offer some form of vocational training, although this “training” only constitutes a relatively small part of the whole indoctrination package. At the same time, this terminology clarifies that these facilities function in a prison-like internment fashion.

Specifically, this article will show the following:

  1. According to numerous Xinjiang government websites, VTICs “wash clean the brains” of those interned in them. Those subjected to such coerced brainwashing are referred to as “re-education persons”, which is the exact same term used for detained Falun Gong members.
  2. Specifically, those interned in VTICs are called “detained re-education persons”. Numerous documents make clear that these “trainees” are in involuntary detention. The author never found a single government document that supports government claims that people willingly consent to being placed into a VTIC, they sign any kind of agreement to that end, or they can request leave.
  3. VTICs are guarded by large, dedicated police detachments. In one case, the number of security guards was over twice as high as that of the camp’s teaching staff. In another county, the wages of the designated VTIC police force were budgeted to be nearly three times as high as this county’s entire regular vocational education budget. Government regulations specify that VTICs must implement “escape prevention” measures that also apply to prisons. Also, VTICs frequently have their own police stations on their compounds.
  4. VTICs are administered by newly established “education and training bureaus” (ETBs) that fall under the authority of the criminal justice system and are funded from domestic security budgets.
  5. VTICs represent only one of up to 8 forms of extrajudicial internment in Xinjiang. In 2016, prior to the large-scale internment campaign, one Uyghur population majority area had already placed nearly 10 percent of its adult population in dedicated re-education facilities. In 2018, the Xinjiang government gave about 1.6 billion RMB in VTIC food subsidies to its minority regions, enough to feed several hundred thousand or more persons. Overall, the author suggests a speculative upper limit estimate of 1.5 million, corresponding to one in six adult members of these minority groups.
  6. Chinese claims that Xinjiang has no “re-education camps” are simultaneously true and false. They are superficially true in that such denials use a Chinese term for “re-education” that the government itself never employs. However, they are also manifestly false, given there is abundant evidence from government documents that there are several types of dedicated re-education facilities in Xinjiang, and that the officially-stated primary goal of the VTICs is not vocational training but “transformation through education”. Government claims that Xinjiang has no “concentration camps” are both semantically and technically false, and contradicted by the state’s own terminology. Even so, using this term as the primary phrase to describe the camps is ultimately not helpful.

Being aware of this, the Chinese state has been using varied and ingenious terms for VTICs in its online publications, some of them evidently designed to obstruct or even prevent targeted keyword searches. For example, some government documents conceal the term “Education Training Center” (教培中心), a common short form of the full term, with an asterisk or other ASCII characters, as in “职业技能*”, or “◇◇◇◇”, or else through a mix of Latin and Chinese characters (“JP 中心”) that appear to serve no other logical purpose than obfuscation.[2] The first method is very effective for preventing keyword searches, because Google and other search engines cannot actually search for the asterisk character itself.

As China’s propaganda campaign progresses, this article urgently seeks to disseminate crucial and potentially incriminating evidence about the real nature and purpose of the region’s VTIC network. The empirical evidence discussed below should suffice to support significant, concrete actions by the international community against this unprecedented atrocity. Continue reading

Turkish Breakup with the U.S. and NATO: The Illogical Logics

Journal of Political Risk, Vol. 7, No. 5, May 2019 

Dr. Jahara Matisek and Dr. Buddhika Jayamaha
U.S. Air Force Academy

Change of command ceremony is held at NATO’s Allied Land Command in Izmir, Turkey on August 03, 2018. Evren Atalay/Anadolu Agency/Getty Images

Abstract: With decades of debate about Turkey leaving NATO, the Turkish purchase (and delivery) of a Russian air defense system may be crossing the Rubicon. The Syrian Civil War, combined with how the U.S. and NATO decided to back Kurdish proxies in the fight against the Islamic State, has fed into the domestic logic of survival for Turkish political elites. With President Erdoğan and his revisionist political party ruling over Turkey the last decade, they appear to have finally refashioned the Turkish state by purging secularists from the government and military since the coup hoax of 2016. This new consolidation of political power has created a Turkish state with values incompatible with the West and strategies irreconcilable with NATO. However, these efforts by Erdoğan are undermining the long-term economic viability of the Turkish state, as established norms concerning the rule of law and property rights deteriorate, risking Turkey’s status as a reliable and stable ally in the region. We make these judgements on Turkey provoking its own expulsion from NATO based on interviews and fieldwork in Kurdistan and Turkey.

Continue reading

5G Fight With China: Politicization Leads to Suboptimal US Outcome

Journal of Political Risk, Vol. 7, No. 4, April 2019

By Anders Corr

A customer wearing a headset plays a virtual reality (VR) game at a 5G experience hall on April 8, 2019 in Hangzhou, Zhejiang Province of China. Photo: Long Wei/VCG via Getty Images

The Federal Communications Commission (FCC) announced a national 5G auction of large slices (up to 3.4 gigahertz) of the millimeter wave (mmWave) spectrum, along with $20.4 billion in subsidies over 10 years for rural connections, on April 12. The plan ignores expert cyber-security advice, has major security, timing, strategic and financial problems, and will not facilitate new competitors in the telecommunications market. The announcement by President Trump and FCC Chairman Ajit Pai, likely under the influence of telecommunications lobbyists, was a surprise to most experts and took place with no real public input. The auction of the mmWave spectrum is set for December 10. At the press conference announcing the decision, Chairman Pai thanked Director of the National Economic Council Larry Kudlow and Ivanka Trump for their assistance, with Ms. Trump giving a speech in support of the plan.

Continue reading

Khashoggi was Not a Friend of America

It would be ironic if his death led the U.S. to take actions harmful to itself

Journal of Political Risk, Vol. 7, No. 10, October 2018 

By William R. Hawkins

Iran’s Navy Commander Admiral Habibollah Sayari points at a map during a press conference in Tehran on December 22, 2010, as saying that Iran will launch 10 days of naval drills from December 24, covering east of the Strait of Hormuz and the Gulf of Oman to the Gulf of Aden. Credit: Hamed Jafarnejad/AFP/Getty Images.

Returning from his trip to Saudi Arabia and Turkey, Secretary of State Mike Pompeo told President Donald Trump on Thursday that the Saudi Arabian government needs s “a few more days” to investigate the fate of Jamal Khashoggi, a Saudi writer and activist who disappeared on October 4 while visiting a Saudi consulate in Turkey. It has been alleged that Khashoggi was murdered by Saudi agents because of his criticism of Crown Prince Mohammed bin Salman, the young reform-minded de facto leader of the country.  Pompeo told the press, “We made clear to them that we take this matter very seriously.” As a sign of this, Treasury Secretary Steven Mnuchin withdrew from an investment conference in Riyadh and President Donald Trump threatened “severe consequences” if Khashoggi’s murder was state sponsored. Yet, Pompeo also reminded his audience, “We have a have a long strategic relationship with Saudi Arabia. We need to be mindful of that.” And well we should, as it provides the larger strategic context in which the fate of Khashoggi must be placed.

Continue reading

Is The U.S. Doing Enough To Advance Religious Freedom Globally?

Journal of Political Risk, Vol. 7, No. 8, August 2018 

By Terri Marsh, Ph.D., Esq.

Photo taken in February 2018 shows police officers patrolling in the Xinjiang Uyghur Autonomous Region of China. Photo by Kyodo News via Getty Images.

We are facing a crisis as regards U.S. corporations profiting from the sale of technology indispensable to the perpetration of egregious human rights violations in the People’s Republic of China. In 2007 Jerry Yang, CEO of Yahoo! was criticized by U.S. Representative Tom Lantos, chairman of the U.S. House Committee on Foreign Affairs, for Yahoo’s role in the arrest and imprisonment of Chinese journalist and democracy advocate Shi Tao. The case describes the actions that Yahoo! had taken to grow its business in China, complying with a government request for the identity of a Yahoo! user, which subsequently resulted in Shi Tao’s detention and torture. Cisco Systems Inc. arguably facilitated the development of the Golden Shield apparatus in China that has caught Falun Gong, Tibetan Buddhist and Uyghur dissidents in its torture/persecution network. See “Index of Relevant Allegations,” available upon request. These are but a few of the most salient examples.

While U.S. federal courts currently have jurisdiction over U.S. corporations’ international law violations under the Alien Tort Statute, the Supreme Court may deny the grant of jurisdiction, with the appointment of Judge Kavanaugh, as discussed below. The Alien Tort Statute, which became law in 1789 as part of the First Judiciary Act, enabled foreign citizens to seek justice for injuries caused by acts of piracy, which by their nature routinely occurred outside the territory of the United States. The operative part of the Alien Tort Statute (“ATS”) grants jurisdiction for torts in “violation of the law of nations or a treaty of the United States.” [1] Until 1980, the statute was used primarily for piracy cases; however, in 1980, nearly 200 years after the first Judiciary Act, the statue has been applied to human rights litigation. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Since the 1980s, the federal courts have been developing standards to define the reach of the statute. In Sosa v. Alvarez-Machain, 542 U.S. 692, 748 (2004), the Supreme Court limited the jurisdiction of the ATS to a narrow range of violations that are “specific, universal, and obligatory.” [2] In 2011, the Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, to decide whether federal courts have jurisdiction over corporations for enabling egregious human rights abuses overseas. However, because the Supreme Court resolved Kiobel on a different ground, it was not until 2017 in Jesner v Arab Bank PLC, 38 S. Ct. 1386 (April 2018) that the Supreme Court addressed the corporate liability question. In Jesner, it was alleged that the Arab Bank aided and abetted the terrorist organization allegedly responsible for terrorist attacks by maintaining bank accounts that Arab Bank knew would be used to fund terrorism and by identifying the relatives of suicide bombers so that they could be compensated with so called “martyrdom payments.” In a majority opinion authored by Justice Kennedy, the Court concluded that foreign corporations may not be defendants in suits brought under the ATS. See Jesner at 6-11, 18-19, and 25-27. However, the Court did not foreclose suits against U.S. corporations for aiding and abetting egregious human rights violations abroad.[3]

The dissent authored by Justice Gorsuch in Jesner and that authored by Judge Kavanaugh in an earlier D.C. Circuit case signal a shift away from the status quo; that is, it is likely that U.S. corporations – Yahoo, Google, Cisco, Apple and so on, may be able to further egregious human rights abuses overseas if Judge Kavanaugh is confirmed.

Justice Gorsuch’s Opinion in Jesner

Justice Gorsuch authored a concurrence in Jesner.  Concurring with the majority opinion, he distinguished cases filed against foreign corporations, which “risk reprisals from [that] country” from those filed against U.S. corporations that “ensure our citizens abide by the law of nations and avoid reprisals against this country.” Jesner at 1419. However, Justice Gorsuch has indicated his opposition to the use of the ATS in the human rights contexts. Alito appears to agree. See Just Security, “Jenser v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations,” available at https://www.justsecurity.org/55404/jesner-v-arab-bank-supreme-court-preserves-possibility-human-rights-suits-u-s-corporations/. In other words, Jesner did not quite settle the question of corporate liability.

Judge Kavanaugh’s anti-ATS/Corporate Stance

In Doe v. Exxon Mobil Corp., 397 U.S. App. D.C. 371, a group of Indonesian villagers sued Exxon Mobil, claiming that its security forces near an Indonesian plant “committed murder, torture, sexual assault, battery, false imprisonment,” and other misconduct. When a lower court rejected an Exxon motion to dismiss the case at a very early stage, the company filed an appeal, seeking to get the appeals court to take the very unusual step of reversing the preliminary decision or issuing a writ of mandamus to throw out the entire case.  The D.C. Circuit concluded that aiding and abetting is well established under the Alien Tort Statute (ATS), Exxon at 399, and neither the text, history, nor purpose of the ATS supported corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. Id. at 400-419. Dissenting in part, Judge Kavanaugh opined that the plaintiffs’ ATS claims should have been dismissed, inter alia, because: (1) the ATS does not apply to conduct that occurred in foreign nations;[4] or (2) the ATS does not apply to claims against corporations. Id. at 432-434. In light of Judge Kavanaugh’s dissent in Exxon, Judge Kavanaugh seems ready to cast a (perhaps deciding) vote against ATS corporate liability.

Competing Values

The Filartiga line of cases reflect an important principle of international law, that is, that some crimes are so heinous that the perpetrators can be brought to justice for crimes perpetrated overseas.  In the vast majority of these cases, Plaintiffs seek redress not merely for acts that are unlawful, but more particularly, for violations of jus cogens norms, including but not limited to genocide, widespread torture and slavery. As the District Court in Presbyterian Church of Sudan v. Talisman Energy Inc. and the Republic of Sudan, 244 F. Supp. 2d 289 (S. D. N.Y.), noted, jus cogens violations are fundamentally different from other international law violations by the “depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce.” [5] In a similar vein, the Second Circuit said in Filartiga, “[F]or purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.”[6]

According to the testimonials of survivors, these cases have helped heal and empower them by providing survivors and their families with an experience of justice, a sense of meaning in their survival, renewed trust in people and institutions, and a tremendous satisfaction in knowing that they have brought dignity to themselves and to the memories of those who were killed. By uncovering facts and witnesses, these cases also establish a record of accountability through, e.g., the publication of reports. Cases filed against U.S. corporations have additional advantages including a deterrence effect. Moreover, by determining that no U.S. corporations may be sued under the ATS, we are immunizing these corporations from liability for human rights abuses, no matter how egregious they may be.

Of course, one might argue that the United States is putting U.S. corporations at a disadvantage with these laws. If the goal of a U.S. corporation is solely to make a profit regardless of the cost, then any laws that hinders that goal, including tax evasion, corporate fraud, bribery and money laundering also place U.S. corporations at a disadvantage, especially when compared with corporations that operate as state-run enterprises in such authoritarian regimes as China, where they are permitted to operate without such constraints. The egregious nature of the violations including the “toll of human suffering they inflict upon the victims,” would seem to further militate in favor of corporate liability in a well-defined range of circumstances.[7]

In addition, many would agree that these laws give the United States a public relations boon globally in terms of proving our support for human rights. As President Bush (43) said when he signed the Torture Victim Protection Act of 1991 into law (a statute that does not cover corporate violations):

I am signing into law H.R. 2092, the “Torture Victim Protection Act of 1991,” because of my strong and continuing commitment to advancing respect for and protection of human rights throughout the world. The United States must continue its vigorous efforts to bring the practice of torture and other gross human rights abuses to an end.”  See President Bush’s Signing Statement, March 16, 1992, Volume 28-Number 11, pp. 431-481.

The “Bush” principle cannot be upheld while our corporations trample upon these very values overseas.

Some have argued that these cases impose a corporate tax on U.S. corporations. However, the commission of such human rights violations as genocide, widespread torture, and slavery are violations that are inherently wrong wherever are perpetrated. Moreover, the law of aiding and abetting is quite stringent requiring that a corporation know that the product they sell will be used to perpetrate acts of torture (or the like) and nonetheless customize the product for that purpose. Unless one believes corporations may engage in the business of “torture” in order to enhance profits and gain market advantage in authoritarian regimes, this is not so much a “human rights tax” as a limit beyond which corporations should not tread. Indeed, to immunize corporations for the heinous crimes they further overseas is to place them above or outside of the law.

Dr. Terri Marsh is the Executive Director and Senior Litigation partner of the Human Rights Law Foundation, which she launched in 2005. She holds a Ph.D. in Classics from SUNY and a J.D. from New York University School of Law. Following law school, she worked as a consultant for the Legal Defense and Education Fund of the National Organization for Women, the Center for Law and Social Policy, and as the Director of a D.C. Superior Court Diversion Court for juvenile offenders in Washington D.C. She is an active member of the D.C. State Bar and of the federal bars of the Illinois and the District of Columbia, the bars of the First Circuit, Second Circuit, Seventh Circuit, and Supreme Court of the United States of America. She serves on the board of several China related organizations. She is the author of numerous professional articles and presentations on Western moral philosophy. JPR Status: Opinion.

[1] The “Law of Nations” is defined by Blackstone as “a system of rules … established by universal consent among the civilized inhabitance of the world; in order to decide all disputes which … must frequently occur between two or more independent nations, and the individuals belonging to each.” 2 William Blackstone, Commentaries *66, available at http://www.lonang.com/exlibirs/blackstone/bla-405.htm.

[2] This has generally been interpreted to include such egregious violations as torture, extrajudicial killing, enslavement, genocide and other crimes against humanity.

[3] Aiding and abetting has a high threshold: one must show that the aider knew what the product would be used for and nonetheless tailored it for that purpose. In other words, the net is not so wide as to entrap the innocent corporation engaged in routine corporate conduct.

[4] Here, he is requiring that a corporation or individual directly cause the abuses overseas, thereby foreclosing aiding and abetting liability. As a result, he appears to be willing to immunize corporations that aid and abet such abuses.

[5] In a similar vein, the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M 679 defines a jus cogens norm of international law as “a norm accepted and recognized by the international community as a norm from which no derogation is permitted. [5] Vienne Convention, art. 53. See also RESTATEMENT THIRD OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. (d) adopting the Vienna Convention’s definition of jus cogens as binding on all nations and “derived from values taken to be fundamental by the international community rather than from the … choices of nations.”

[6] Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)

[7] As many have observed, there are ample constraints in place. The Department of State may intervene in a case it opines interferes with serious foreign policy concerns. Corporations are not held liable for routine corporate behavior. To the contrary, it must be shown that the corporation actually aided and abetted said violations. Cases may be dismissed if a remedy is available in the place where the principal actors perpetrated the crimes.