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Corrie et al v. Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts
Grietje Baars*

1 INTRODUCTION1
In 2005 an attempt was made at enforcing international law against an American corporation said to be complicit in war crimes, extrajudicial killing and cruel, inhumane and degrading treatment committed by the Israeli military. The civil suit, brought in a U.S. court, was dismissed without a hearing, in a brief statement mainly citing reasons of political expedience. The claimants in Corrie et al v. Caterpillar2 include relatives of several Palestinians, and American peace activist Rachel Corrie, who were killed or injured in the process of house demolitions carried out using Caterpillars D9 and D10 bulldozers. They brought a civil suit in a U.S. court under the Alien Tort Claims Act,3 for breaches of international law, seeking compensatory damages and an order to enjoin Caterpillars sale of bulldozers to Israel until its military stops its practice of house demolitions. An appeal is pending and will be decided on in the latter half of 2006.

* PhD Candidate, University College London and Coordinator, International Criminal Law at the Institute of Law, Birzeit University. 1 The author thanks Victor Kattan, Jason Beckett, Jrg Kammerhofer, Akbar Rasulov, Andr de Hoogh, Anne Massagee, Reem Al-Botmeh and Munir Nuseibah for their helpful comments and suggestions, and Maria LaHood of the Center for Constitutional Rights in New York for providing the documentation. Any mistakes are the authors own. This article is an elaboration of a paper presented at the conference, The Question of Palestine in International Law at the School of Oriental and African Studies in London, on 23-24 November 2005. 2 Cynthia Corrie and Craig Corrie, et al v. Caterpillar, Inc., a Foreign Corporation (Caterpillar) Case No. CV-05192-FDB. Documents on file with the author, and available from: http://www.ccrny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg& Content=546 3 28 U.S.C. 1350.

Electronic copy available at: http://ssrn.com/abstract=1672225

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2 THE CATERPILLAR CASE IN ITS CONTEXT


The idea of a number of Palestinian and American families taking the manufacturer of the machines, that were used in the killing or injury of their relatives by the Israeli military, to court in the United States, may seem far fetched in more than one way. Why sue a foreign supplier to the Israeli army, in a foreign court? What did the U.S. company have to do with deaths and injuries that occurred half-way around the world? This introductory section shows how such actions are feasible, and plausible. I will discuss the context in which the facts complained of occurred, and the legal and political reasons (such as the Intifada Law4) why a Palestinian claimant may resort to a foreign court. Caterpillar commenced in March 2005. The plaintiffs are represented by the Center for Constitutional Rights in New York, and the Seattle University Ronald A. Peterson Law Clinic. On 29 November 2005 the District Court for the Western District of Washington, Tacoma Division, dismissed the case.5 The plaintiffs filed a Notice of Appeal on 20 December 2005 and on 20 March 2006 filed their Appellants Opening Brief with the United States Court of Appeal for the Ninth Circuit.6 The defendant company, Caterpillar, is due to file its response in June 2006 but has been granted an extension. The Caterpillar litigation takes place in the context of house demolitions and civilian deaths and injuries caused by the Israeli military in the Occupied Palestinian Territories (OPT).7 In particular, the complaints that form the basis of the litigation arose during the April 2002 Israeli incursions into the West Bank population centres of Nablus and Jenin Refugee Camp, and two major operations in Gaza, in Rafah in March 2004, and Khan Yunis Refugee Camp in July 2004. The plaintiffs in the Caterpillar case are four Palestinian families and the parents of Rachel Corrie, the American peace activist who was killed in Rafah in March 2003. Rachel Corries death has been much publicised and has even formed the subject of a play, My Name is Rachel Corrie, that was directed by Alan Rickman, a famous U.K. actor, and has toured theatres around the world, although it was recently barred from appearing in New York City.8 Rachel was one of a number of Western volunteers who use the privilege of their
4 The popular nickname of the Civil Wrongs (State Responsibility) (Amendment No. 7) 2005, 5712-1952, Available in English from Adalah, The Legal Centre for Arab Minority Rights in Israel, at http://www.adalah.org/eng/complaw.php . 5 Order granting defendant Caterpillars motion to dismiss, USDC Western District of Washington at Tacoma, filed 11/22//2005 (Order). 6 Appellants Opening Brief, United States Court of Appeals for the Ninth Circuit (AB): available from the Center for Constitutional Rights: http://www.ccr-ny.org/v2/legal/ corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. 7 For a detailed description of the Israeli militarys activities in the Occupied Palestinian Territories, see, for example, the daily, weekly, and annual reports of the Palestinian Centre for Human Rights in Gaza, available at http://www.pchrgaza.org, and the Palestinian Monitoring Group: http://www.nad-plo.org/main.php?view=pmg_pmg. 8 A Message Crushed Again Three years after American activist Rachel Corrie died under an Israeli bulldozer in Gaza, her words are being censored for political reasons. LA Times, by Katharine Viner, 1 March 2006.

Electronic copy available at: http://ssrn.com/abstract=1672225

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nationality for the benefit of the victims of this conflict who would otherwise largely escape mainstream media attention.9 Rachels death has helped bring out the stories of other, far more common, occurrences in the OPT. 2.1 The complaints The facts alleged in the case against Caterpillar are set out in the Plaintiffs Complaint in some detail. They start with the demolition of the home of the Nablus Plaintiffs in April 2002, as part of a large scale incursion into the West Bank:
the home of Plaintiff Mahmoud Al Shobi who lived in Nablus in the OPT (West Bank) was demolished by upon information and belief, by a Caterpillar bulldozer. Mahmouds 85 year old father Umar, 2 sisters Fatima and Abir ages 57 and 38 respectively, brother Samir, age 48, his pregnant sister-in-law Nabila, age 40, along with Samir and Nabilas three children Anas, Azzam, and Abdallah ages 4, 7, and 9 respectively, were killed by a Caterpillar bulldozer when the family home was demolished and they were not given sufficient time to leave. After the Al Shobi family home was demolished, the IDF kept the area under strict curfew for days, denying access to rescue workers, and it was not until a week later that the families bodies were found under the rubble of the house by relatives and neighbors.10

As part of the Jenin Refugee Camp incursion in 2002, Jamal Fayed was killed:
Before the home was bulldozed, Jamals mother and sister informed the IDF that Jamal was in the house, was paralyzed, and needed assistance to leave. Jamals mother and sister and other women were permitted to enter the home to remove Jamal. The bulldozer then started demolishing the house while they were inside. The women ran outside and yelled at the driver of the bulldozer to stop. The Caterpillar bulldozer continued moving forward, demolished the home, and killed Jamal.11

In Rafah, in September 2002,


[t]he destruction began without warning at approximately 5:00 in the morning. The falling ceiling and walls injured members of their family. After being warned of those inside, IDF soldiers operating and/or assisting the bulldozer halted active demolition, but fired on neighbours or relatives trying to evacuate those who remained in the demolished house. Eventually, the entire Abu Hussein family was

9 See, e.g. Pollock, M.: Using and Disputing Privilege: U.S. Youth and Palestinians Wielding International Privilege To End the Israeli-Palestinian Conflict Nonviolently; this article appeared in the 2005 issue of Working Papers, Centre for Public Leadership, John F. Kennedy School of Government, Harvard University. 10 Plaintiffs First Amended Complaint (FAC), para. 57. This event and the Jenin event below took place between 29 March-21 April, as part of the IDFs Operation Defensive Shield, an incursion into major West Bank urban centres following an increase in violence from both sides. Nearly 500 civilians are reported to have died in the time surrounding this operation. See, e.g. the Jenin Inquiry Report (available from http://www.jenininquiry.org/); Human Rights Watch: Jenin: IDF Military Operations, May 2002, Vol. 14, No. 3, available from http:/ /hrw.org/reports/2002/israel3/ ) and see also HRW press release of 2 August 2002, The UN Report is seriously flawed at http://hrw.org/english/docs/2002/08/02/isrlpa4185.htm; the Report of the Secretary General prepared pursuant General Assembly Resolution ES 10/10, A/ES-10/186. 11 FAC at para. 59.

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rescued from the building and transported to receive medical treatment for their injuries. Six members of the family suffered physical injuries: Majeda Radwan Abu Hussein, Bahjat Fayez Abu Hussein, then age 20, Ahmed Fayez Abu Hussein, then age 17, Nour Fayez Abu Hussein, then age 11, Hanan Fayez Abu Hussein, then age 3, and Manal Fayez Abu Hussein, then age 2.12

Mr. Khalafallah, killed during a large scale incursion into the Khan Yunis Refugee Camp in July 2004, was elderly and disabled and, according to the testimony given by his relatives, suffered a similar fate to that of Jamal Fayed.13 Finally, Rachel Corrie was killed while attempting to protect the home of Palestinian residents of Rafah, in an action the Israeli military described as a search for weapons and weapon smuggling tunnels.14 These acts were all carried out by the Israeli military using the well-known Caterpillar D9 and D10 bulldozers. Caterpillar had sold these specially designed, armoured, bulldozers to the Israeli military, provided it with training on how to use them, and after-sales care, in the knowledge15 that they were being used to commit international crimes. 2.2 The context The plaintiffs complaints arose in the context of the Israeli occupation of the West Bank and Gaza. House demolitions, the deliberate injuring and killing of civilians, and the failure by the Israeli authorities to investigate and remedy wrongdoing by its military, are some of the most acute manifestations of the Israeli occupation. 2.2.1 House demolitions in the Occupied Palestinian Territories The plaintiffs complaint sums up the broader issue as follows: The IDF has destroyed at least 10,000 Palestinian homes since 1967 leaving approximately 50,000 men, women, and children homeless. Over the last four years, the IDF has destroyed at least 4,100 homes.
As a result of these demolitions, Palestinian civilians, including Plaintiffs, have been killed, injured, displaced, and/or made homeless. Home demolitions often take place without adequate warning and in violation of due process rights, such as the right to a fair hearing. The IDF rarely offers compensation and redress to the
12 FAC at paras. 60-1. This event was part of large-scale house demolitions in the Gaza Strip, see (on earlier instances), e.g. BTselem, Policy of Destruction: House Demolitions and Destruction of Agricultural Land in the Gaza Strip, February 2002, available from http:// www.btselem.org/Download/200202_Policy_of_Destruction_Eng.doc; and Human Rights Watch: Razing Rafah: Mass Home Demolitions in the Gaza Strip, October 2004, available from www.hrw.org/reports/2004/rafah1004/. 13 FAC at paras. 77-80. On the Khan Yunis incursion, see Violating international laws: Disproportionate re-incursion of Palestinian communities in Gaza Strip, 15 July 2004, the Applied Research Institute, Jerusalem, at http://www.poica.org/editor/case_studies/ view.php?recordID=415, and the Palestine Monitoring Group Monthly Report for July 2004, at http://www.nad-plo.org/pmg/pmg-month/july.pdf. 14 FAC at paras. 65-76. See BTselem: Foreign Citizens killed by the Israeli Security Forces, at http://www.btselem.org/English/Statistics/Casualties_Data.asp?Category=11. 15 See below at section 4.

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victims. The IDF has also destroyed civilian roads, agricultural land, and other public and private property.16

House demolitions by an occupying power in the occupied territory may violate international law in several ways. For one, they may violate the prohibition on destruction of property contained in Article 53 of the Fourth Geneva Convention17 and Article 23(g) of the 1907 Hague Regulations.18 Israel, as the Occupying Power, is forbidden from destroying the property of Palestinians in the West Bank and Gaza Strip, unless it is militarily necessary to do so. According to Article 147 of the Fourth Geneva Convention, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly is a grave breach of the Convention, and thus a war crime. Interpreting militar y necessity broadly would undermine the very purposes for which international humanitarian law was brought into existence. International NGOs such as Amnesty International,19 Human Rights Watch, as well as local organisations such as Al-Haq, the Palestinian Centre for Human Rights, HaMoked, BTselem, the Israeli Committee Against House Demolitions and the Association for Civil Rights in Israel, have documented, condemned, and litigated the practice of house demolitions, arguing that these more often than not do not occur on the grounds of true military necessity.20 International organisations have likewise condemned the practice.21 Aside from house demolitions in the circumstances described above, the Israeli military also carries out house demolitions against the property of (the
16 FAC at para. 8. 17 Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) 12 August 1949, 75 U.N.T.S. 287. 18 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, 36 Stat. 2277, T.S. No. 539 (1907 Hague Regulations). Israel is not a party to the 1907 Hague Convention and the annexed Hague Regulations, but the norms contained in them are declaratory of the laws and customs of war (Judgment of the International Military tribunal of Nuremberg, 30 September and 1 October 1946, p. 65) and as such binding on all states. 19 Amnesty International: Israel and the Occupied Territories: Under the Rubble: House demolition and destruction of land and property. AI Index: MDE 15/040/2004, 18 May 2004 available at: http://web.amnesty.org/library/Index/ENGMDE150402004. 20 See, for example, http://www.icahd.org/eng/; http://www.hamoked.org/next_en.asp? cat_id=3&sub_cat_id=7 21 Including also the United Nations, see, e.g. S.C. Res. 1544, para. 1, U.N. Doc. S/RES/1544 (May 19, 2004); Peter Hansen, Commissioner-General of UNRWA, Statement to the Special Political and Decolonization Committee 4-5 (Nov. 1, 2004) (transcript available at http:// www.un.org/unrwa/news/statements/01nov04.pdf); Commission on Human Rights: Fiftyninth session, Item 10 of the provisional agenda: Economic, Social, and Cultural Rights, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, Doc E/CN.4/2003/5 Add.1, 12 June 2002, available at: http://documents-dds-ny.un.org/doc/UNDOC/GEN/G02/145/06/pdf/G0214506.pdf? OpenElement Specifically, the U.N. Committee Against Torture has found that the Israeli governments house demolition policy may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment in violation of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Conclusions and recommendations: Israel. 25/09/2002. A/57/44, paras. 47-53. (Concluding Observations/ Comments), available from http://www.unhchr.ch/tbs/doc.nsf/0/7b8b70bcc17daf8cc1256ef b004e005a?Opendocument.

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family and sometimes the neighbours of) individuals thought to be members of certain designated terrorist organisations and/or those suspected of carrying out various activities.22 In international law, these types of house demolitions, where they affect third party property, amount to collective punishment in violation of Article 50 of the 1907 Hague Regulations, and Article 33 of the Fourth Geneva Convention. The latter stipulates: No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Finally, under Oslo II,23 the State of Israel maintains authority over planning and zoning decisions in much of the Occupied Palestinian Territories, and house demolitions frequently occur for alleged violations of planning and building laws.24 These latter cases often raise allegations of improper motives on the part of the Israeli authorities, and might as such be discriminatory against Palestinians and, more generally, violate their right to housing.25
22 See, e.g. Palestinian Centre for Human Rights: Demolition of Palestinian Houses by the Israeli Occupying Forces as a Means of Punishment and Determent: A Report on Demolition of Houses of Families of Palestinians Who Carried out, Planned or Facilitated Armed Attacks against Israeli Targets, available at http://www.pchrgaza.org/files/Reports/English/ pdf_spec/demolishion%20house-2.pdf. See, e.g., Al-Haq 2005 at The Israeli Military designates a very wide range of organisations and individuals as terrorists see section 91 of the Israeli Penal Law, 5737-1977: Terrorist Organization: an organization that has goals or takes actions aimed at the destruction of the state, or at hurting the security of the state, or the security of its residents or of the Jews in other countries. See also, e.g.: PCHR 2 May 2006: As a Form of Collective Punishment, IOF Continued to Arrest and Harass Mothers of Allegedly Wanted Palestinians, Palestinian Centre for Human Rights: http://pchrgaza.org/files/PressR/ English/2006/46-2006.htm. And see, eg: http://www.btselem.org/english/ Punitive_Demolitions/Legal_Basis.asp. This type of demolition was implicitly approved of by the Israeli High Court of Justice in HCJ 6696/02, Yousef Hamid Mustafa Zurob v. Military Commander of the Gaza Strip, issued 6 August 2002. 23 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) Washington, D.C., 28 September 1995, available from: http://www.knesset.gov.il/process/ docs/heskemb_eng.htm. 24 See, e.g., Amnesty: Under the Rubble (supra, footnote 19), at 8: Palestinians in the West Bank and Gaza Strip are barred from leasing or building on land which has been declared state land because state land is not for leasing or building on by alien persons, and the entire Palestinian population of the Occupied Territories are defined as aliens by Israeli law. After it occupied the West Bank and Gaza Strip, Israel froze planning in Palestinian towns and villages. Planning schemes dating back several decades and no longer suitable to cater for the needs of a growing population were used as the basis for refusing building permits to Palestinians. At the same time, however, Israel developed comprehensive planning schemes for more than 150 Jewish settlements it established throughout the Occupied Territories in violation of international law. 25 Shany, Y.: Expert Opinion, Caterpillar litigation (Shany). Document 36 Filed 08/15/2005, at p. 28. Document on file with the author. Also [b]ecause of the very restrictive planning policy the Israeli authorities apply to the Occupied Territories, Palestinian often have no choice but to build without permission to house their families. These properties are then vulnerable to demolition. BTselem: see http://www.btselem.org/english/ Planning_and_Building/Index.asp; and Shadow Report submitted by ACRI to the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) regarding Israels consolidated tenth, eleventh, twelfth, and thirteenth periodic report: Part I - House Demolitions and Discriminatory Planning and Enforcement Policies in the West Bank, January 2006, available at: http://www.acri.org.il/english-acri/engine/story.asp?id=296.

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The Jenin Refugee Camp, Nablus and Khan Yunis Refugee Camp house demolitions which are the subject of this litigation, took place as part of welldocumented large scale military incursions, which would most probably be classified by the Israeli authorities as forming part of combat operations.26 In Jenin Refugee Camp, during the period described, at least 140 buildings, most of them family dwellings, were completely destroyed, and severe damage was caused to more than 200 others, rendering them uninhabitable or unsafe An estimated 4,000 people, more than a quarter of the camp, were rendered homeless.27 Amnesty International reports that the Israeli explanation for the destruction was to clear paths for the IDFs tanks and other heavy weaponry.28 In an interview in Israeli daily newspaper Yehidot Ahronot shortly after the incursion, Israeli soldier Moshe Nissim describes his role as follows: For three days, I just destroyed and destroyed. I didnt give a damn about the Palestinians but I didnt just ruin with no reason. It was all under orders. Many people were inside houses we started to demolish I am sure people died inside these houses I found joy with every house that came down because I knew that they didnt mind dying29 During the Khan Yunis Refugee Camp incursion, Israeli tanks and helicopter gunships intensely shelled the camp and destroyed 74 houses in less than five days.30 The Corrie and Abu Hussein complaints would most probably be classified as non-combat related operations carried out for military necessity.31 Most of the demolitions in Gaza are aimed at depopulating Palestinian areas near Israeli settlements, bypass roads, military bases, as well as the border.32 In Rafah, a town in Gaza close to the Egyptian border, the Israeli military has used various pretexts to destroy swathes of housing to create a buffer zone along the border33 As noted above, the absolute necessity of these demolitions has often been called into question. For the actions to be lawful under international humanitarian law (IHL) moreover, the actions need to be proportionate (e.g. would a less intrusive measure serve the purpose of the action, such as temporary evacuation of the property?). Also, is demolition at night without notice the least harmful measure conceivable? Further, for the purposes of IHL the measure must be taken with proper consideration for the protection of the civilian population. 2.2.2 Civilian deaths in the Occupied Palestinian Territories For the period of the current Intifada,34 BTselem records 3551 Palestinians, including 723 children, killed by Israeli forces, while the Palestine Red Crescent
26 27 28 29 30 31 32 33 34 Shany at p. 30. FAC at para. 8. Amnesty Under the Rubble, supra, footnote 19. Yediot Ahronot, 31 May 2002, available from http://www.gush-shalom.org/archives/ kurdi_eng.html. FAC at para. 19. Shany at para. 38. FAC at para. 7. FAC at para. 8. The current, second Intifada commenced in 2000.

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Society reports 30,603 injured in the same period.35 The combat operations to which three of the Caterpillar complaints relate, were particularly violent. The Jenin Inquiry Report, whose authors were the first on the ground after the invasion, notes how difficult it was for investigators to estimate the number of deceased in the operation, with many bodies being torn apart and dispersed by the bulldozers.36 The U.N. team, moreover, had to compile its report on Operation Defensive Shield in Jenin and Nablus Spring 2002 without being allowed access to the Occupied Palestinian Territories by the Israeli government.37 The death and destruction in Gaza are reported in the UNRWA Field Assessment of the Israeli militar ys so-called Operation Days of Penitance Northern Gaza.38 Civilian deaths occur in the Occupied Palestinian Territories as a result of the deliberate targeting of civilians; excessive use of force, indiscriminate firing, extrajudicial killings, targeted assassinations.39 Particularly, the immediate resort to the use of live ammunition to disperse demonstrators shows a disregard for civilian life.40 Although a High Court of Justice (HCJ) decision in 2005 (in response to a petition brought by seven human rights organisations) declared the use of human shields by the military illegal,41 human shields were used, for example, in Gaza summer 2006.42 Aside from a violation of IHL, civilian deaths may be the result of a violation of the right not to be arbitrarily deprived of ones life in international human rights law.43 The complaints that form the subject of the Caterpillar petition combine the two elements, house demolitions and civilian deaths (and injuries).44 All of the plaintiffs killed or injured in the events complained of, were unarmed civilians.45

35 BTselem figures for the period 29/09/00 to 15/07/06, at http://www.btselem.org/english/ statistics/Casualties.asp; and Palestinian Red Crescent Society, at http://www.palestinercs.org/ crisistables/table_of_figures.htm. The PRCS figure is for the period 29 October 2000 to 31 July 2006, which includes the start of latest Israeli military assault on Gaza which commenced on 25 June 2006. 36 Jenin Inquiry Report, supra, footnote 10 at 4. 37 Report of the SG prepared pursuant to GA Resolution ES 10/10A/ES-10/186, para. 43. 38 United Nations Relief and Works Agency, published 20 October 2004, available from www.un.org/unrwa/news/incursion_oct04.pdf. 39 Petition pending. See also the assassination of Salah Shehadeh by a one-tonne bomb in Gaza City see below at 2.5. 40 Al-Haq at 53. 41 HCJ 3799/02 Adalah et al v. the IDF Commander et al, available from: elyon1.court.gov.il/ Files_ENG/02/990/037/a32/02037990.a32.pdf . 42 See e.g.: 20 July 2006: Israeli Soldiers Used Palestinians as Human Shields in Gaza: BTselem investigation: IDF used civilians, including minors, as human shields during gun-battle in Beit Hanun, see http://www.btselem.org/english/Press_Releases/20060720.asp. 43 See for a discussion of the parallel application of international human rights and humanitarian law, the ICJ Wall Advisory Opinion at p. 101. 44 In the latest Gaza offensive again house demolitions without adequate notice are an issue, see, eg: Palestinian Centre for Human Rights in Gaza, Demanding Offering Palestinian Families Enough Time to Vacate Their Houses and Appeal against Their Destruction, PCHR Addresses the Israeli Attorney General Office Concerning the Policy of Informing Palestinians Shortly before Destroying Their Houses, Ref: 79/2006, Date: 31 July 2006. 45 AB at p. 7.

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Palestinian civilian deaths are not normally investigated.46 In fact, at the outbreak of the current Intifada the Israeli authorities announced that they would no longer carry out investigations into the deaths of Palestinian civilians, except in exceptional circumstances.47 According to Al-Haq, of the 3,044 Palestinian deaths in the period from 28 September 2000 until 24 November 2004, 89 have been the subject of military police investigations, leading to only one conviction.48 2.3 Remedies available at home? In the previous section it was noted that civilian deaths are not normally investigated, and house demolitions (particularly of the type complained of here) are not normally subject to conditions such as the right to a prior hearing,
46 Al-Haq at p. 52, June 2005; BTselem: Background Whitewash and Failure to Investigate the Killing of Civilians in the Occupied Territories, 27 June 2005. Human Rights Watch: Promoting Impunity: The Israeli Militarys Failure to Investigate Wrongdoing, June 2005. Specifically on the 2002 incursions, see: Amnesty Internationals report Israel and the Occupied Territories: Shielded from scrutiny: IDF violations in Jenin and Nablus, 4 November 2002 (AI Index: MDE 15/143/2002). 47 Al-Haq at p. 75. 48 Al-Haq, at pp. 75-76 and BTselem, Rules of Engagement and Lack of Accountability Result in Culture of Impunity for Palestinian Civilian Deaths, Press Release, 24 November 2004. Rachel Corries death was investigated. The Guardian saw the (otherwise unpublished) report. The report is said to absolve the military personnel involved, and is quoted as saying that Corrie had been: struck as she stood behind a mound of earth that was created by an engineering vehicle operating in the area and she was hidden from the view of the vehicles operator who continued with his work. Corrie was struck by dirt and a slab of concrete resulting in her death ... The finding of the operational investigations shows that Rachel Corrie was not run over by an engineering vehicle but rather was struck by a hard object, most probably a slab of concrete which was moved or slid down while the mound of earth which she was standing behind was moved. (The Guardian, 14 April 2003). Instances where Westerners are killed by the Israeli military are more often investigated, partly because the military and the government are highly sensitive to the media impact of such killings. Here, too, however, delays and a lack of transparency result in the investigations amounting to far less than an effective remedy. HRW Promoting Impunity, supra, footnote 46, at 72. In Israel, a soldier has been convicted of the manslaughter of British citizen Tom Hurndall. According to HRW, during the trial, the soldier admitted he had lied when he had previously said Hurndall had been carrying a gun, but said he had been under orders to open fire even on unarmed people, HRW Promoting Impunity, at 77. In April 2006 a U.K. coroner found that James Miller (another U.K. citizen) and Tom Hurndall, had been unlawfully killed (Calls for UK to act over Britons shot dead in Gaza, Vikram Dodd, Tuesday, 11 April 2006, The Guardian, at http://www.guardian.co.uk/frontpage/story/0,,1751369,00.html). The family have requested access to the investigative report in order to see whether he should be charged with murder and whether the soldiers superior(s) may be charged with command responsibility. The U.K. Attorney-General is considering a request for extradition for murder and/or war crimes. Despite 40 interventions with the Israeli government, the death of U.K. citizen James Miller has thus far not been satisfactorily investigated. See, e.g. Hansard, House of Commons, 4 May 2006: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060504/text/ 60504w23.htm. On 7 April 2006 a U.K. coroner found that James Miller had been murdered by the Israeli Army, see, e.g.: Briton shot by Israelis was murdered, says inquest jury The Guardian, 7 April 2006. For an article on the U,K, Attorney Generals fact-finding mission to UK downplays Gaza damages bid, Jerusalem Post, 27 May 2006.

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and compensation. This section investigates the likelihood of a successful claim in the domestic Israeli and Palestinian courts in some more depth. 2.3.1 Jurisdiction under Oslo II The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip49 imposes extensive jurisdictional limitations on the Palestinian courts. Article III of Annex IV of the Agreement deals with civil jurisdiction: The jurisdiction of the Palestinian courts and judicial authorities does not cover actions against the State of Israel including its statutory entities, organs and agents. This means that a Palestinian claimant wishing to commence an action for compensation for losses caused by the Israeli military, would have to do so in the Israeli courts in the first instance. 2.3.2 Claims against the Israeli military Most of the litigation which takes place in Israel concerning events occurring in the Occupied Palestinian Territories is addressed within an administrative law paradigm, viewing the Israeli military as an administrative agency.50 In those very few administrative law cases where injunctions against house demolitions were granted, it was by reason of the non-fulfilment of one of the conditions (such as a right of prior hearing), that may be attached to house demolitions. The High Court of Justice has decided that the right of prior hearing does not apply in combat-related demolitions.51 In cases of noncombat related demolitions in situations of military necessity the Israeli military may offer some financial compensation.52 The right to prior hearing, however, has gradually eroded.53 Moreover, almost all administrative law petitions against non-combat house demolition operations undertaken for security needs were dismissed to date.54 Civil claims in tort are no more likely to succeed: No tort claim brought in Israel on the basis of a house demolition operation which took place in the Occupied Palestinian Territories has ever been successful.55 Claims in tort which raise specific allegations of negligence might be feasible, although these (as other tort cases) would be covered by the Intifada Law (see below under []). The Corrie family commenced a civil action against the State of Israel

49 Supra, footnote 23. 50 Shany at p. 34. 51 See, e.g.: HCJ 453/04 Al-Besioni v. IDF Commander, 2004(2) Tak-Supreme 1288. Moreover, the specific house demolitions in Jenin to which the Caterpillar complaint relates, were approved of in an obiter statement in HCJ 313/03 Bakri v. The Film Review Board, 2003(3) Tak-Supreme 353, 365. 52 Shany at p.35. 53 Shany at p.36. 54 Shany at p.38. 55 Shany at p.26.

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and the Ministry of Defence in March 2005. They have yet to receive an answer on whether the Intifada Law applies to claims by non-Palestinians.56 In support of the Caterpillar plaintiffs claim that local remedies had been exhausted, and/or that no adequate remedy exists in Israel, expert witness Yuval Shany summarised the situation as follows:
There have been no successful tort claims brought before Israeli Courts for damages associated with home demolitions. Moreover, the Israeli Supreme Court continually rejects administrative law cases challenging the home demolitions similar to those in this lawsuit those for accommodation of military needs, and those it deems combat operations, such as those intentional demolitions against non-combat civilian homes occurring during incursions into refugee camps. Applications to stop the demolitions are almost always rejected, often accompanied by either explicit or implicit approval of house demolitions.57

In addition to local laws, a plaintiff could attempt to rely on breaches of international law giving rise to a claim in the domestic (Israeli) courts. However, plaintiffs expert opines that not only is there no known precedent for bringing a tort claim in Israel directly on the basis of international norms, it is highly unlikely that a tort claim alleging violation of international law, such as extrajudicial killing, could be sought in Israel. There is no domestic law or enabling legislation that provides that a person can bring a claim for extrajudicial killing (or torture) in violation of international law similar to TVPA,58 in fact, the Israeli Parliament has failed to incorporate into domestic law and/or provide causes of action for almost all human rights and humanitarian law treaties to which Israel is a party. Moreover, it also does not incorporate customary international law into domestic tort law in any way including by any sort of jurisdictional statute similar to the ATS.59 ([U]nlike [the U.S. ATCA], Israeli law does not permit reliance on common law or international law standards, which were not codified in legislation, as the legal basis for a tort claim). Indeed, it would be difficult, if not outright impossible to read customary law into pre-existing domestic tort law. Israel has long disputed the applicability de jure of the Hague Regulations and the Fourth Geneva Convention in the Occupied Palestinian Territories,60 although it has stated that it generally, in fact, applies the humanitarian provisions of the Convention.61 The International Court of Justice in its Advisory Opinion on the Wall confirmed the views of the U.N. Security Council,

56 The estate of Rachel Aileen Corrie, et al, v The State of Israel and the Ministry of Defence, filed in the District Court of Haifa, 15 March 2005 (available from the Center for Constitutional Rights, at http://www.ccr-ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID= nCtI8ofbFg&Content=546 ). This is a civil claim for bodily damage. 57 Shany at pp. 48-9. 58 Torture Victims Protection Act, see below under 4.3.3. 59 Alien Tort Statute, another name for the Alien Tort Claims Act. 60 It argues that the Palestinian Territory was not sovereign prior to its annexation by Jordan and Egypt, and that it was/is thus not a territory of a High Contracting Party for the purposes of the Convention. 61 H.C.J. 7957/04 Maraabe et al v. The Prime Minister of Israel, June 21, 2005 (Judgment on the Wall surrounding Alfei Menashe), at 14. Available from http://www.mfa.gov.il/NR/rdonlyres/ 11824B1A-BA6E-4B2A-8005-D091F5C0E60E/0/AlfeiMenasheruling15905.doc.

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General Assembly, the Conference of the Geneva Convention High Contracting Parties, and I.C.R.C. that the Convention does apply.62 Israel has also consistently denied its obligation to apply the human rights covenants which it has ratified in the OPT, arguing that where the relevant regime is international humanitarian law, international human rights law does not apply. On this, the ICJ held that the protection offered by human rights conventions does not cease in times of armed conflict, save through the effect of provisions for derogation of the kind to be founding Article 4 of the ICCPR.63 The ICJ also held that Israel is bound to apply the ICESCR and the Convention on the Rights of the Child in the Occupied Palestinian Territories.64 In a number of recent administrative decisions, the High Court of Justice has held that humanitarian law applies in the OPT.65 However, the courts deference to the military decision-makers still make that High Court Decisions have merely become strong legal precedents legitimising the illegal practices of the Occupying Power.66 2.3.3 Pursuing complicit actors in Israeli Courts Having as good as eliminated the possibility of bringing a case in Israel or the Occupied Palestinian Territories against the Israeli military or civil authorities, it is worth considering other potential defendants. However, there is no precedent in Israeli law for claims against corporations said to be complicit in the Israeli militarys violations.67 Also, any complicit actors would benefit from immunity from suit under the Intifada Law. 2.3.4 The Intifada Law In July 2005, the Israeli Parliament enacted a law that makes it possible to relieve the State of Israel from tort liability in cases where plaintiffs were injured by actions committed by the Israeli security forces in the Occupied Palestinian
62 Paragraphs 89-101 of the International Court of Justices Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Wall AO), available from: http://www.icj-cij.org/icjwww/idocket/imwp/ imwpframe.htm. 63 Article 4 of the ICCPR holds that certain of the Convenants provisions may be derogated from in time of national emergency. (The right to life is non-derogable IHL forms lex specialis here and determines the test of what is an arbitrary deprivation of life.) See ICJ Wall AO, supra, at pp. 102-111. 64 ICJ Wall AO, pp. 112 and 113. 65 HCJ 4764/04, Physicians for Human Rights et al. v. Commander of the IDF Forces in Gaza, Pisque Din 58(5) 385, available from http://elyon1.court.gov.il/files_eng/04/640/047/a03/ 04047640.a03.pdf; HCJ 2056/04, Beit Sourik Village Council et al. v. The Government of Israel et al, Taqdin Elyon 2004 (2) 3035, para. 23, available from: http://domino.un.org/UNISPAL.NSF/ 85255e950050831085255e95004fa9c3/380fd102b1711ea48525705a00524cf6! OpenDocument. 66 Nizar Ayoub, Al-Haq 2004: The Israeli High Court of Justice and the Palestinian Intifada: A Stamp of Approval for Israeli Violations in the Occupied Palestinian Territories, at p. 113. See also: Shamir, R.: Landmark Cases and the Reproduction of Legitimacy: the Case of Israels High Court of Justice, 19 International Journal of the Sociology of Law, pp. 45-65 (1990). 67 Shany at pp. 23, 49 and 58.

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Territories. The Law of Civil Wrongs (Liability of the State) (Amendment No. 7) 2005, which is an amendment to, and widening of, the eponymous law of 1952. The existing law provides, in Article 5, that the State [of Israel] is not liable for an act done in the course of a war operation of the Israeli Defense Forces. War operation is broadly defined as includ[ing] any action combating terror, hostile acts, or insurrection, and also an action intended to prevent terror, hostile acts, or insurrection that is taken in a situation endangering life or limb (section 1). Amendment No. 7 adds to this, in section 5B, that the State shall not be subject to liability under the law of torts for damage sustained by any person [who is] A citizen of an Enemy State , an activist or member of a Terrorist Organisation, or anyone who incurred damage while acting as an agent for or on behalf of a citizen of an Enemy State, or an activist or member of a Terrorist Organisation. Aside from the designation Terrorist Organisation (defined in Israeli Penal Law68) it is clear that activist, or member (given the generally loosely organised nature of the groups aimed at) or anyone acting on behalf of such persons, can be very broadly interpreted. In addition to section 5B, section 5C provides that the State shall not be subject to liability under the law of torts for damage sustained in a Conflict Zone due to an act performed by a member of the security forces. A Conflict Zone is a zone outside the territory of the State of Israel,69 which the Minister of Defence has declared as [such], in which the security forces acted70 or were present in the zone within the context of a conflict(section 5C(e)). The Minister of Defence is able to declare any zone a Conflict Zone, retrospectively, within 90 days of receipt of a claim. Also, within the first six months from the publication of the law, the Minister was able to declare any area a zone of conflict regardless of a claim being received. Both sections 5B and 5C do not apply to, inter alia, damage as a result of traffic accidents, crimes of which is convicted, or damages sustained while the victim is detained or imprisoned by the State, unless in the latter case this person after her/his detention again becomes an activist or a member of a Terrorist Organisation or acts on behalf of such an organisation (Annexes 1 and 2). The State includes any authority, entity or person acting on its behalf. The Amendment applies retrospectively with respect to causes of action that arose on or after 29 September 2000 (i.e. the start of the second Intifada hence this law is dubbed the Intifada law), unless an action with respect to such a cause of action has been initiated and has reached the stage of trial itself. Any claims obviated by section 5C(a) may be assuaged by an ex gratia payment (s. 5C(b)(1)) approved by a committee to be set up by the Minister of Defence. As of May 2006 no such committee had yet been set up.71 Moreover, it was recently reported that the manner in which (now former) Defence Minister Mofaz has retroactively designated zones of conflict serves to all

68 Section 91 of the Israeli Penal Law, supra, footnote 22. 69 Interestingly, this is intended to include, what, for the purposes of section 5A is called the region, namely Judea, Samaria, and the Gaza Strip (section 5A(1)). 70 A question might be whether this would include action from the air. 71 Yuval Yoaz: Intifada Law has barred compensation to Palestinian victims almost entirely, Haaretz, 4 May 2006 - http://www.haaretz.com/hasen/spages/712153.html.

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but exclude the right to compensation for Palestinians.72 Israeli newspaper Haaretz reported that Justice Ministry officials had not foreseen quite how extensively the Minister would use his power, with the number of declarations issued, in some areas, amounting to a designation of the entire area as a conflict zone for the period 2001-2006. A number of human rights organisations have petitioned the Israeli High Court of Justice to annul the law, arguing it violates the basic rights in domestic as well as international law.73 Hearings on the petition are scheduled for July 2006. According to the petitioners, the law, aside from violating the Israeli Basic Law on Human Dignity and Liberty, the principles relating to retroactive application, the separation of powers, judicial independence and the stability of the law, the law constitutes the denial of relief for infringement of a fundamental right, which amounts to the denial of the right itself.74 Specifically, the law violates the obligation to pay compensation for violations of international humanitarian law (such as the failure to protect civilians as required by Articles 43 and 46 of the Hague Regulations of 1907, and in Article 27 of the Fourth Geneva Convention) enshrined in Article 3 of the Hague Regulations,75 Article 29 of the Fourth Geneva Convention76 and Article 91 of the First Additional Protocol to the Geneva Conventions.77 Also, the Intifada law violates international human rights law, in particular, Article 2(3) of the International Covenant on Civil and Political Rights, which obliges the state to compensate for breach of protected rights.78 In short, according to the petitioners, the law conveys a grave and extreme message, to the effect that the lives and rights of these injured persons are without value, that the court will not grant them relief, and that the perpetrator will be freed of all liability. Moreover,
the Amending Law does not recognise the right in tort of those Palestinians who have sustained injury, and denies this right because of their national identity, it negates the rationale of tort laws and impairs deterrence of acts that injure
72 Ibid. 73 The petition was submitted by HaMoked, Adalah, ACRI, Al-Haq, The Palestinian Centre for Human Rights, BTselem, Physicians for Human Rights, The Public Committee Against Torture in Israel, Rabbis for Human Rights; see ACRI press release 01/09/05, at http://www.acri.org.il/ english-acri/engine/story.asp?id=223 . The petition is available from Adalah, at http:// www.adalah.org/eng/complaw.php. 74 Adalah et al v. Minister of Defence et al, Petition, supra, at paras. 6, 7, 89. 75 A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 76 The Party to the conflict in whose hands protected persons may be is responsible for the treatment accorded to them by its agents 77 A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 78 Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. See also: Human Rights Commission: General Comment 31 on the Nature of the General Legal Obligations on States Parties to the Covenant CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 15, available from http://www1.umn.edu/humanrts/gencomm/hrcom31.html.

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Palestinians. In doing so, the Amending Law provides that, in the kinds of injury and damages to which it applies in the Occupied Territories, there is neither law nor judges.79

2.4 Palestinian jurisdiction the unexplored option? Under Oslo II, Annex IV Article I on criminal jurisdiction, the Palestinian courts retain jurisdiction for all criminal cases except those relating to crimes committed by Israeli citizens, tourists, or crimes committed in settlements or military zones.80 Although it is not possible for the Palestinian courts to commence criminal proceedings against (members of) the Israeli armed forces, it may be worth considering an action against a non-Israeli who is complicit in the action carried out by the military. Also, the Oslo II Agreement does not exclude the Palestinian courts jurisdiction over criminal matters relating to foreign corporations and, indeed, Palestinian criminal law recognises criminal liability of legal persons.81 Thus, prosecuting corporations in the Palestinian courts may be an option meriting further investigation, although here, too, political considerations would likely play an inhibiting role.82 2.5 Domestic enforcement: conclusion In conclusion, it would seem that the Israeli militarys actions, at least actions of the type referred to in the Caterpillar complaint, are largely able to escape judicial scrutiny, at least on the domestic level. The next logical step for the Palestinians is thus a move further afield, basing their claim on a breach of international law or domestic law actionable abroad.83
79 Adalah et al v. Minister of Defence et al., Petition, supra, at paras. 2 and 3. 80 Interim Agreement on the West Bank and Gaza, (supra, footnote 23), Annex IV Protocol concerning Legal Matters. Article I Criminal Jurisdiction. 81 The Jordanian Criminal Law Number 16, 1960, The General Part (5), Article 74: Legal persons have legal liability resulting from actions committed by their directors, board members, representatives, or employees when they conduct these actions in the name of the legal person, or via one of its subsidiary legal persons, as a legal person. Available (in Arabic) from Birzeit Universitys Institute of Law Palestinian Law Database Al Muqtafi, at http://213.244.124.245/ en/index.asp . I am grateful to Dr. Nabih Saleh, Professor of Criminal Law at Al Quds University, Abu Dis, Palestine, for confirming this point, and to Munir Nuseibah for research assistance and translation. 82 In defence against a civil claim for compensation in a Palestinian court, the corporation might argue it is to be considered an agent of the Israeli military, thus allowing it to benefit from the exception from Palestinian civil jurisdiction mentioned above. This may, however, mean the corporation admits to a relationship with the military that is too close for legal comfort, one which would carry commensurate responsibilities. Ultimately, on the Israeli level, the corporation would benefit from the immunity afforded by the Intifada Law. Moreover, any crime committed by the corporation will likely have been committed in a military zone, or in the context of a military operation, in which case the Israeli courts have jurisdiction. 83 In the absence of local remedies, the only legal recourse for Palestinians is to seek remedies in other states courts, Al-Haq: Rights Without Remedies: The Israeli Compensation Law, Occasional Paper, October 2005. Of course there are huge material obstacles to be overcome before a claim can be brought elsewhere, including finding lawyers to represent the victims (occasionally the lawyers will find the victims), arranging financing, collecting evidence, etc. Thus the ability to bring a case abroad should not be overestimated.

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The doctrine of sovereign immunity precludes the courts of one state reviewing another states actions. Its corollar y, the principle of nonintervention, prevents one state from interfering in another states affairs. Despite the promise of international human rights law, and international humanitarian law, individual victims of violations perpetrated by their own state, or the occupying state, depend on that state to become a party to the relevant instruments, for the domestic courts to recognise and apply the norms, and for the state to allow the international mechanisms for enforcement to be available to individuals. The Palestinians, without a state, do not have the option to ratify the various instruments and join the international system on an equal footing. Palestinians living under Israeli occupation do not have access to international procedures or fora that their occupier does not make available to them.84 They are dependent on courts that subject their rights and interests to considerations of national (i.e. Israeli) security, and legislatures that they had not elected writing off their rights in a manner that they are unable to counter. Usefully for the Palestinians, existing in this lawless place, there is the placeless law of universal jurisdiction.85 Universal jurisdiction allows (or obliges) every court in every state to consider cases of crimes (or arguably also civil disputes86) that are so serious as to offend mankind as a whole. The initiative on bringing a universal jurisdiction case abroad would come from victims represented by individual cause lawyers or non-governmental organisations making this a form of privatised humanitarian intervention by law. In recent years, a number of Israeli individuals have been the subject of assertions of universal jurisdiction. High profile examples include the attempt to try Ariel Sharon in Belgium for his role in the Sabra and Shatilla massacre, the attempted arrest in London of General Doron Almog, and the
84 Israel has not ratified the Rome Statute of the International Criminal Court, nor the additional protocol to the ICCPR allowing for individual complaints to be made (Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force 23 March 1976, available at http://www.unhchr.ch/html/menu2/8/oppro.htm). Hypothetically, it could be possible for a (any) state to challenge Israeli violations of erga omnes obligations in the International Court of Justice, as Israel attracts state responsibility for its breach of an erga omnes obligation, which gives every other state the right to demand cessation of the wrongful state of affairs: Article 48 of the Draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its Fifty-third session (2001) (extract from the Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.1). However, Israel would still have to (voluntarily) subject itself to the ICJs jurisdiction. 85 I owe this apt phrase to Laurie King-Irani, who coins it in, Of Placeless Laws and Lawless Places: Does International Justice have a Local Address? The Electronic Intifada, 16 September 2003, available from: http://www.ccmep.org/091703_21_septembers_ago_laurie_king.htm . In the U.S., the Alien Tort Claims Statute is a type of universal jurisdiction statute, though it provides only for a civil claim to be made. Other domestic jurisdictions have similar enabling statutes, though arguably none are needed for the domestic enforcement of international criminal law (Ferdinandusse, W.: The Direct Application of International Criminal Law in National Courts, C.U.P., 2006). 86 See, e.g. Chatham House International Law Discussion Group, Meeting Summary on Universal Civil Jurisdiction: www.chathamhouse.org.uk/pdf/research/il/IL200606.pdf.

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class action instituted against former Shin Bet director Avi Dichter for his role in the death of several Gaza City residents after a one tonne bomb was allegedly used for a targeted assassination in 2002.87 Another option, in addition to pursuing individuals within the state or military apparatus, is to hold to account those actors without whose support, supply or cooperation the oppressive state could not or would not exist. Companies and governments often have highly symbiotic relationships, including at a time of war or occupation. In the post-World War II Nuremberg trials, it was recognised that without the support and cooperation of industry, the Hitler War Machine would not have been able to do what it did, and the Tribunal translated this political and economic support into legal liability.88 Subsequently, in light of this, billions of dollars were paid out by a number of companies to holocaust survivors in compensation for their losses. 89 In the context of the Israeli occupation.90 one company that caught the public eye and imagination, was Caterpillar. Caterpillar, Inc. is one of the most visible, and most obviously branded, suppliers of materiel to the Israeli armed
87 A number of attempts have been made at prosecuting individuals accused of atrocities vis vis the Palestinians. On the criminal prosecution commenced (but abandoned for reasons of immunity) against Ariel Sharon for his role in the Sabra and Shatila massacres see Belgium, Tribunal of First Instance Brussels (Kamer van Inbeschuldigingstelling), In re Sharon and Yaron, 26 June 2002, and the special dossier included in Volume XII of The Palestine Yearbook of International Law (2002/2003). For details on the attempted arrest of General Doron Almog in London, see: Daniel Machover and Kate Maynard: The UKs duty to universal jurisdiction, The Times, 4 October 2005. Also, in December 2005 Avraham Dichter, the former director of the Israel Security Agency (formerly known as the General Security Service, also known as Shin Bet), was served in New York with a class action commenced by several Gaza City families, represented by the Center for Constitutional Rights. Dichter is accused of participating in the decision to drop a one-tonne bomb on an apartment block in a residential area of Gaza City in 2002, and having command responsibility for the action, which is said to have killed 15 people, including eight children, and injured 150. United States District Court Southern District of New York, Civ No. 05 CV 10270, Complaint Filed under Seal, Class Action: Raed Mohamad Ibrahim Matar and others v. Avraham Dichter, 7 December 2005. Document available at: http:// www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=ccDzL2NjXs&Content=678; Belhas and others v. Yaalon, USDC District of Columbia. Case No. 1:05CV02167. Class action against Lt. Gen. (ret.) Moshe Yaalon, former Head of the Intelligence Branch and former Chief of Staff of the IDF, for war crimes and other human rights violations, served on 15 December 2005. The class action lawsuit is in connection with the hundreds of civilian deaths and injuries resulting from the 1996 shelling of the United Nations compound in Qana, Lebanon: see http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID= eqVBNxvlcx&Content=682. 88 See, eg The United States of America v. Carl Krauch, et. al., (IG Farben Case) Trials of War Criminals, Vol VIII, p1081. 89 See Ramasastry, A.: Corporate Complicity from Nuremberg to Rangoon; An examination of Forced Labor Cases and their Impact on the Liability of Multinational Corporations, 20 Berkeley J. Intnl L. 91 (2002), Stephens, B.: The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Intnl L. 45 (2002). Similarly, in Apartheid South Africa the government was propped up by several large financial institutions and companies, without whose support the countrys economy, and its regime, would have collapsed. For the fate of this litigation, see below at [] and generally, Swart, M.: Beyond Repair: Accomplice Liability under International Law and the Apartheid Litigation Cases, unpublished draft paper, 2005. Document on file with the author. 90 For the economic significance of the occupation on the Israeli economy, see, e.g. Nitzan, J. and Bichler, S.: The Global Political Economy of Israel, Pluto Press, 2002, at p. 120.

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forces. Its enormous, armoured, D9 and D10 bulldozers with their striking CAT logos were easily identified as a symbol of the destruction caused by the Israeli occupation.91

3 THE CASE IN INTERNATIONAL LAW


3.1 War crimes of the Nazi-era companies Corporate liability for war crimes was first recognised at the post-World War II Nuremberg trials. There, the motivation was to leave no stone unturned in bringing perpetrators of the atrocities to justice, and several directors, managers and sales representatives of some of Germanys best-known corporations were hanged for their contribution to the war effort. One rationale for trying the industrialists at the Nuremberg tribunals was the perceived collective nature of the Nazi crimes. The holocaust and other crimes occurred pursuant to a policy designed by the Nazi leadership and implemented by the military, the bureaucratic apparatus and industry. The Allies had spent years deciding who to try and on what basis. In the end a number of representative figures were selected, and indicted on the charge of being part of a criminal conspiracy to wage a war of aggression and commit other crimes. In addition, a number of organisations were declared criminal organisations which made membership of those organisations an offence punishable by death. This, it was hoped, would speed up the prosecution of the thousands that were not individually charged. A number of industrialists were also individually charged. The wording used by the tribunals who, in their judgment, frequently spoke of crimes committed by the company, shows that the individuals (usually directors) were seen as a pars pro toto for the company.92 In the trial of the industrialists on the conspiracy charge, the tribunal established that they were involved in a common plan. The levels of involvement

91 The company was sent letters by individual human rights groups from 2001, and it became the subject of a campaign organised by a coalition of human rights organisations in 2002, see the campaign by, among others, Jewish Voice for Peace: http://www.catdestroyshomes.org/ . 92 Clapham, commenting specifically on the Krupp trial, notes: The language and reasoning of the tribunal indicates that it was the Krupp firm that was essentially at the heart of this set of convictions. A careful examination of the judgment reveals an acceptance of the notion that in some cases the corporation itself committed the war crime and its directors were being convicted for belonging to the organization that had committed a criminal act. (Clapham, A.: The complexity of international criminal law: Looking beyond individual responsibility to the responsibility of organizations, corporations and states, in Thakur, R. and Malcontent, P. (eds): From Sovereign Impunity to International Accountability: The Search for Justice in a World of States, UNU Press (2004), at p. 238). Indeed, it is argued that the selection of representative individuals for prosecution, and the attempted substitution of the Krupp director by his son, suggests that it was the organisations, rather than the individuals, that were the real target of the allies (Overy, R: The Nuremberg trials: international law in the making, in Sands, P. and Booth, C. (eds.): From Nuremberg to The Hague: The Future of International Criminal Justice, C.U.P., 2001, at pp. 109-156).

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sufficient for a conviction ranged from very actively involved,93 to must have been informed of the criminal nature of the Nazi system.94 The tribunal, on the charge of membership of a criminal organisation, convicted one individual for having remained in the S.S. voluntarily throughout the war, with actual knowledge of the fact that that organization was being used for the commission of acts declared criminal by [the Allies].95 The prosecutors deliberately targeted firms to highlight the role that organisations had played during the war and the symbiotic relationship they had had with the Hitler regime.96 The trials of the industrialists (Flick,97 IG Farben and Krupp98) indicate that the corporate organisations and the individuals acting in them were perceived to be part of this war machine, or even, the real villains, the Nazis paymasters.99 In IG Farben the USMT VI found that the company had committed war crimes (pillage/spoliation, use of forced labour, participation in a war of aggression) and tried its directors both individually and collectively. The 24 directors were convicted of one or more of the following charges: war crimes and crimes against humanity through the plundering and spoliation of occupied territories, and the seizure of plants both in Austria, Czechoslovakia, Poland, Norway, France, and Russia, war crimes and crimes against humanity through participation in the enslavement and deportation to slave labour on a gigantic scale of concentration camp inmates and civilians in occupied countries, and of prisoners of war, and the mistreatment, terrorisation, torture and murder of enslaved persons, and membership in a criminal organisation,

93 Judgment (Goering): International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, Germany, 14 November 1945, 1 October 1946, 29 (1947). 94 Judgment (Hess), ibid. 95 United States of America v. Karl Brandt et al. (Medical Case) NMT 1947. 96 Clapham, A.: The complexity of international criminal law: Looking beyond individual responsibility to the responsibility of organizations, corporations and states, in Thakur, R. and Malcontent, P. (eds): From Sovereign Impunity to International Accountability: The Search for Justice in a World of States, UNU Press (2004), at p. 233. Apparently Clement Attlee (the then U.K. Prime Minister) argued forcefully that business leaders should be dragged into the net. He called for a cull of German businessmen as an example to the others. Overy, R: supra. footnote 92 at 10. 97 The United States of America v. Friedrich Flick, et al. (Flick) Flick, owner of the Flick KG group of companies, was found guilty of war crimes and crimes against humanity by participating in the deportation and enslavement of the civilian populations of countries and territories under the belligerent occupation of or otherwise controlled by Germany, and of concentration camp inmates, for use in slave labour in Flick mines and factories, crimes and crimes against humanity through the plundering and spoliation of occupied territories, and the seizure of plants both in the west (France) and the east (Poland, Russia), and membership in the NSDAP and the Circle of Friends of Himmler. Nuremberg Military Trials, Reports available from the Mazal Library: http://www.mazal.org/archive/nmt/08/NMT08-T1309.htm . 98 Trials of War Criminals, Vol. VIII, p1081. 99 Overy, supra, footnote 92 at p. 9.

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the SS.100 The IG Farben defendants were found not guilty on the charge of conspiracy.101 In IG Farben the tribunal emphasised the profit motive as being part of the mens rea of the property crimes contained in the indictment.102 These were constituted by breaches of the 1907 Hague Regulations, about which the Tribunal said the following:
the Hague Regulations are broadly aimed at preserving the inviolability of property rights to both public and private property during military occupancy. They admit of exceptions of expropriation, use, and requisition, all of which are subject to welldefined limitations set forth in the Articles. Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law. The payment of a price or other adequate consideration does not, under such circumstances, relieve the act of its unlawful character. Similarly where a private individual or a juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations.103

The idea of the corporation as an instrumentality in the hands of criminal individuals was also offered in IG Farben: one may not utilise the corporate structure to achieve an immunity from criminal responsibility for illegal acts which he directs, counsels, aids, orders or abets with the knowledge of the essential elements of the crime.104 This precedent avoids the requirement of intent towards the criminal act in itself. The U.K. Military Court in The Zyklon B. Case105 also found the concept of accomplice liability by a corporation for international crimes. As a result of their conviction, a number of the companys officers were executed, for having
100 IG Farben at p. 10. 101 See Clapham supra, footnote 92 at p. 167. Judge Herbert filed a dissenting opinion, in which he argued that all defendants should have been found guilty on count 3 (Conspiracy) of the indictment. He stated that ...the record shows that Farben willingly cooperated and gladly utilized each new source of manpower as it developed. Disregard of basic human rights did not deter these defendants. And Willing cooperation with the slave labor utilization of the Third Reich was a matter of corporate policy that permeated the whole Farben organization... For this reason, criminal responsibility goes beyond the actual immediate participants at Auschwitz. It includes other Farben Vorstand plant-managers and embraces all who knowingly participated in the shaping of the corporate policy. Nuremberg Military Trials, Reports available from the Mazal Library: http://www.mazal.org/archive/ nmt/08/NMT08-T1309.htm. 102 Clapham (2004) at p. 169. Profit is the objective of pillage, plunder and spoliation. 103 Mazal Library. (emphasis added). Clearly this statement by the Tribunal has relevance to corporations operating in occupied territories today. 104 IG Farben at p. 1153. For a related line of reasoning, see also Koh, H.: Separating Myth from Reality About Corporate Responsibility Litigation, Journal of International Economic Law 7(2) (2004), 263 at p. 265: The commonsense fact remains that if states and individuals can be held liable under international law, then so too should corporations, for the simple reason that both states and individuals act through corporations. 105 Trial of Bruno Tesch and Two Others (The Zyklon B Case). Brit. Mil. Ct. Hamburg 1946, in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals 93 (1947).

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supplied the gas that was used in the gas chambers of the Nazi concentration camps. The prosecution was based on Article 46 of the 1907 Hague Regulations, which provides that: Family honour and rights, individual life and private property, as well as religious convictions and worship must be respected. The Article, which falls under the section, Military Authority over the Territory of the Hostile State, was intended to refer to acts committed by the occupying authorities in occupied territory. Importantly, in the Zyklon B. Case, the article was interpreted so as to apply to the supply of goods by the defendants company to be used to kill prisoners. Here, also, the officers were held to be liable for acts said to have been committed by the company.106 The mental element of the crime consisted merely of the officers knowing the gas (which also had hygiene-related uses) would be used in the murders which knowledge was in fact inferred in the case of the defendant Weinbacher. The inference was based on the argument that a competent business person in a leadership position will necessarily know what his main business operations are.107 The officers were not shown (or required to have had) intent vis vis the murders; it sufficed that they had simply intended to make a profit from the trade.108 The Nuremberg and subsequent trials show that holding a company, even a supplier, to account for its commercial dealings with a regime committing war crimes and human rights abuses, is not so far-fetched, after all.

4 THE ALIEN TORT CLAIMS ACT: A PORTAL TO JUSTICE?


Having identified a potential defendant, the search continues for a court that will hear the case. No international tribunal is currently available for this kind of action.109 Universal jurisdiction can be employed. In the United States the mechanism of the Alien Tort Claims Act (ATCA), a 200-year-old statute, provides as follows:
106 Clapham, A.: The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in Kamminga, M., and Zia-Zarifi, S. (eds.), Liability of Multinational Corporations under International Law, Kluwer law International, 2000, at p. 140. 107 See also the Mauthausen Concentration Camp Case, where the USMT found that every official, governmental, military and civil, every employee, whether a member of the Waffen S.S., Allgemeine S.S., a guard, or civilian, was criminally liable as an accomplice, as it was impossible for the accused not to have acquired a definite knowledge of the criminal practices and activities taking place in the camp. See http://www.yale.edu/lawweb/avalon/ imt/imt.htm#proc . 108 For an insightful discussion of the profit motive, see Stephens, B.: The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J Intnl L. 45. 109 The International Criminal Court has explicit jurisdiction over natural persons. This is normally understood to exclude jurisdiction over legal persons. However, the ICC statute does not exclude jurisdiction over legal persons: its Article 25(1) reads: The Court shall have jurisdiction over natural persons pursuant to this Statute. The court does explicitly assert its jurisdiction over individuals as members of a group: Article 25 (3)(d) states that individual criminal responsibility is incurred where the individual contributes to the commission of a crime within the jurisdiction of the court committed by a group of persons acting with a common purpose.

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Section 1350. Aliens action for tort The district courts shall have 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.110

This Act thus converts a breach (including a breach amounting to an international crime) of the law of nations or a treaty of the U.S. into a tort actionable by alien plaintiffs in the U.S. federal courts. The ATCA was revived by the Center for Constitutional Rights in the 1980s in the landmark case of Filrtiga v. Pea-Irala.111 This was a case brought by the father of a Paraguayan citizen who had been tortured to death, against the police officer thought responsible. It related entirely to events occurring outside the U.S. and involving non-U.S. citizens. Importantly, the court construe[d] the ATS,112 not as granting new rights to aliens, but simply as opening federal courts for adjudication of the rights already recognised by international law.113 Filrtiga, considered a landmark decision for its commitment to giving effect to the purpose of international law, spawned a wave of (often human rights related) cases brought by non-U.S. citizens.114 Of interest in the context of the Israeli/ Palestinian context is Tel-Oren v. Libyan Arab Republic,115 filed shortly after Filrtiga. In this case the survivors and legal representatives of persons killed on a civilian bus in Israel sued the republic of Libya and the Palestine Liberation Organisation. The case was dismissed for lack of subject matter jurisdiction, with each of the three judges offering a different explanation for their decision.116 The question of whether the U.S. Supreme Court would endorse the use of ATCA in human rights cases was answered in June 2004 in Sosa v. AlvarezMachain.117 In Sosa, the Supreme Court affirmed the Filrtiga line of cases, to the extent that ATCA claims must rest on a norm of international character accepted by the civilized world and defined with the specificity comparable to the features of the 18th Century paradigms we have recognised.118 The Court

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USC Title 28. Filrtiga v. Pea-Irala 630 F.2d 876 (2d Cir. 1980). Alien Tort Statute, another name for the ATCA. Filrtiga, at p. 20. For example, against the Argentine General Suarez-Mason: Quiros de Rapaport v. Suarez Mason, No. C87-2266 (N.D. Cal. 11 April 1989), Martinez-Baca v. Suarez-Mason, No 87-2057 (N.D. Cal. 22 April 1988); Forti v. Suarez-Mason, No. C-87-2058 (N.D. Cal. 20 April 1990) (final judgment), against former Philippine dictator Ferdinand Marcos and his daughter (e.g. In Re Estate of Marcos Litigation, D.C. No. 95-15779 9th Cir., 5 May 1995) and against former Haitian dictator Prosper Avril (Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment). For an overview, see Stephens, B. and Ratner, M.: International Human Rights Litigation in U.S. Courts, Transnational Publishers, Inc. 1996. 726 F2d. 774 (D.C. Cir. 1984). See Born, G.: International Civil Litigation in US Courts: Commentary and Materials, Kluwer Law International (2000) at p. 36; Stephens and Ratner (1996) (supra, footnote 114) at pp. 20-21. The latter state (at p. 20) that this case had limited impact because of its split opinion and unusual fact pattern. Sosa v. Alvarez-Machain, 124 S Ct. 2739 (2004); see also Center for Constitutional Rights Sosa docket http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=M8JpE6un 9x&Content=396. Sosa at p. 749.

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approved119 cases which permitted ATCA claims for violations of international norms that are specific, universal and obligatory.120 Since Filrtiga, the ATCA jurisdiction has developed in a trend towards the widening of the scope both regarding the circle of defendants and the applicable human rights norms. Kadic v Karadzic121 (Kadic), for example, expanded the scope of ATCA litigation by confirming that certain norms of international law, including genocide and war crimes, summary execution, rape and other forms of torture committed in pursuit of these crimes, apply to private actors and could thus form the basis of an ATCA claim.122 The widening of the scope of actors is supported by the philosophy that, in order to serve the purposes of the law, i.e. protection of the rights of the individual citizens, it is imperative to regulate all those actors that are potentially capable of affecting those rights.123 Also, it echoes the origins of the ATCA, which was enacted to provide a forum for (amongst others) victims of piracy perhaps the ultimate private, international actors. 4.1 Corporations as subjects of international law under ATCA The first set of cases against corporations under ATCA were Doe v. Unocal and Roe v. Unocal, commenced in 1996.124 The facts of the Unocal cases are typical of this generation of ATCA cases, in which the corporation enters into a business arrangement with a repressive regime or its instrumentalities to facilitate natural resource extraction.125 Unocal was accused of using slave labour in its plants in Burma, in collusion with the Burmese dictatorship. Following this case, in the late 1990s, a number of cases were brought against the other major oil and mining companies.126 Subsequently, cases were also brought against financiers of, and suppliers to, oppressive regimes,127 such as the South African Apartheid government. A major series of cases that is still ongoing is

119 In a move contrary to the goodwill shown by the Judiciary in Filrtiga, the U.S. Departments of Justice and State filed a brief in support of the defendant Sosa, seeking to eliminate the use of this statute by survivors of human rights violations. 120 Sosa at p. 748, and see Coliver, S., Green, J., Hoffman, P.: Holding Human Rights Violaters Accountable by using International law in US Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Intl L Rev 169 Spring, 2005. 121 Kadic v. Karadzic 70 F. 3d. 232 (1995). 122 Like many ATCA cases, this case did not proceed to trial on the merits. Most precedents set by ATCA cases are in fact based on court decisions in the preliminary stages of litigation, for example where a petition to strike out a case is dismissed and the court decides that the case is allowed to proceed. Most ATCA cases have been dismissed on jurisdictional grounds, or have been settled. 123 For a similar argument, see, Schabas, W.: Relevant Lessons form the Ad Hoc Tribunals, PYBIL,Vol. XII (2002/2003) at p. 5. 124 Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal.1997); Roe v. Unocal Corp., 70 F. Supp. 2d 1073 (C.D. Cal 1999). 125 Coliver et al. (2005) at 209. 126 E.g. Shell: Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000). (Wiwa), Chevron: Bowoto, et. al. v. Chevron, et. al. Case No. C99-2506 (N.D. Cal. 2000) (Bowoto), Freeport McMoran (Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 373, 382- 84 (E.D. La. 1997). 127 Barclays and Citigroup, amongst others, in the Apartheid Litigation Cases.

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the Holocaust Litigation cases.128 In the ATCA cases involving corporations, the U.S. courts make use of the precedents set by the Nuremberg trials of the industrialists, and use the concepts and doctrines contained in the statutes, and developed through the case law, of international courts and tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ATCA line of cases also connects with the concept of the legal person in international law more generally. Legal person liability (including criminal liability) exists in international instruments regulating labour conditions, nuclear treaties, oil spill treaties, hazardous waste conventions and anti-bribery conventions. A recent addition to this is the legal regime surrounding the war on terrorism. International conventions and Security Council resolutions129 contain both legal person liability, and liability for aiding and abetting, even through such un-proximate activities as financing. Similarities clearly exist with nationally and internationally existing regimes on money laundering and dealing in unlawfully acquired goods.130 4.2 Corporate complicity in ATCA litigation The Nuremberg and subsequent trials show a development of the concept of conspiracy, the requirements for a conviction in terms of participation and intent, and the nascent concept of legal person liability for international crimes.131 The ICTY and ICTR, starting from the liability provisions in their respective charters, built on these concepts to come to comprehensive theories of responsibility which in turn are used by domestic courts including the U.S.

128 See, e.g., In re. Assicurazioni Generali SpA. Holocaust Insurance Litigation, MDL 1374, M21-89 (MBM) Opinion and Order, 25 September 2002. 129 For example, UNSC Resolution 1373, asserts that all states shall criminalise the wilful provision or collection of fundsin the knowledge that they are to be used, in order to carry out terrorist attacks. 28 September 2001, and see, UNSC Resolution 1368 which stresses that those responsible for aiding, supporting or harbouring perpetrators of the 11 September attacks will be held accountable [sic]. 130 The criminal liability of legal persons specifically is provided for in, for example, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, (17 December 1997, reprinted in 37 I.L.M. 1 (1998)), and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste adopted on 22 March 1989; the 1996 Protocol to the 1972 London Convention on the Prevention of Marine Pollution, Corpus Juris (Penal Protection Financial Interests E.U.); United Nations Draft Convention against Organized Crime (2000); and the E.U. Convention on the Prevention of the Environment through Criminal Law (1998) include similar provisions. The former requires national legislators to enact criminalising provisions only insofar as their legal systems allow this. Many legal systems (in fact, an increasing number) do allow for the criminal liability of legal persons. The Basel Convention specifically requires the criminalisation of certain behaviours of legal persons. In sum, the wider conception of ICL seems to move in tandem with domestic legal systems in increasingly providing for the criminal liability of legal persons, and more generally persons acting in a business context. 131 This trend is matched by an increasing acceptance in jurisdictions worldwide of the concept of corporate crime. See, e.g. Wells, C. and Elias, J.: Catching the Conscience of the King: Corporate Players on the International Stage, in Alston, P. (ed.), Non State Actors and Human Rights, Oxford University Press, 2005, pp. 141-175.

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courts in ATCA litigation against companies accused of international crimes. As elsewhere, in ATCA litigation one can distinguish between claims based on direct involvement of corporations in human rights violations, and indirect liability where corporations are alleged to have been complicit in human rights abuses committed by other (state) actors. The U.S. courts have found that corporations (as private actors, and legal persons) could be held directly responsible for slave trade, genocide, war crimes, and other so called offences of universal concern.132 Building on the Nuremberg precedents, the U.S. courts have also come to a position on indirect liability of various types of actor in international law. They have, so far, accepted the principle of corporate liability for complicity in state acts of torture and summary execution, crimes against humanity, cruel, inhuman or degrading treatment, torture, violation of the right to life, liberty and security of person, prolonged arbitrary detention, and peaceful assembly. The U.S. courts have faced both class actions alleging systemic involvement of corporations with repressive regimes or in conflict situations, as well as claims regarding the specific involvement in particular instances of wrongdoing. A series of cases brought under ATCA building on the Nuremberg conspiracy idea are the Apartheid Litigation Cases.133 These cases were class actions brought by South Africans against a number of the companies most visibly implicated in the apartheid regime, such as Barclays, Citigroup and J.P. Morgan. The culpability of the corporations is described by one commentator:
Although it is clear that the primary responsibility for the injustice and atrocities lies with the government, it is unlikely that the massive apartheid machinery could have functioned for as long as it did if not for direct assistance in the form of arms and other supplies and the active participation in the South African economy of the largest multinational corporations.134

A series of cases alleging immoral profiteering off the genocidal policies of a regime is the Holocaust Litigation Cases, in which a number of companies were sued for compensation, amongst others for using work-to-death labour supplied by the concentration camps.135 Many of these have now been

132 In the sense that motions to strike out these cases brought by the defendant, for example, on the basis that (the specifically claimed provisions of) ICL did not apply to corporations (and thus that the plaintiff failed to state a claim, or the court lacked jurisdiction), were dismissed. See, e.g. The Presbyterian Church of Sudan, et al. v. Talisman Energy Inc, et al., USDC SDNY 2005 US Dist. 30 August 2005, Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000), Bowoto, et. al. v. Chevron, et. al. Case No. C99-2506 (N.D. Cal. 2000). 133 In Re South African Apartheid Litigation, 346 F. Supp. 2d 538; 2004 US Dist. 29 November 2004. 134 Swart, at p. 1. The defendants in this case also included companies such as IBM, EXXON, Schindler, American Isuzu Motors, 38 corporations in total, in the class action brought by three groups of plaintiffs (the Ntsebeza plaintiffs, Digwamaje plaintiffs and the Khulumani plaintiffs). These cases were dismissed but are currently under appeal. 135 400 companies are now said to have used slave labour supplied by the Nazi regime during WWII: Ramasastr y, A.: Corporate Complicity: From Nuremberg to Rangoon An Examination of Forced Labour cases and their Impact on the Liability of Multinational Corporations, 20 Berkeley J. Intnl Law 91, at p. 2002.

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settled.136 In particular, the first such case was against Ford Motor Co., which in a class action was accused of knowingly having accepted economic benefits derived from the use of forced labour by its German subsidiary. In its opinion, the court found that it had subject jurisdiction under ATCA over the claim, that Ford had indeed used unpaid, forced labor during WWII and that this violated clearly established norms of customary international law, law which applies to private actors such as Ford in certain circumstances. Ford had acted in concert with the German state and violated international law. 137 Notwithstanding these findings, the case was dismissed because the U.S. and Germany had entered into an agreement to resolve such cases exclusively through diplomatic settlements. Further, the court found the claims timebarred, and dismissed them by reason of international comity.138 Similar claims (but not the Ford claim) have been settled since by use of a special German compensation fund.139 Ford appears to mark a turning point in ATCA litigation in the U.S. No longer do the courts appear keen, and proud, to give effect to the manifest objectives of international law.140 Instead, courts appear to become sensitive to the pressure of governments who, in amicus submissions in the major ATCA cases, have urged the judiciary to give a narrow interpretation to the ATCA, that would exclude liability of corporate actors.141 Notable in this context, however, is the amicus brief submitted by the World Jewish Congress (WJC )in support of the petitioner in Sosa. In its submission the WJC reminds the court that the ATCA enabled victims of the holocaust to bring well-founded claims for violations of the law of nations in U.S. Courts with the support of the Executive Branch and of Congress. The WJC urges for ATCA to be preserved for other potential claimants, stressing that the Alien Tort Claims Act provides a vitally important means of redress for non-citizen victims of violations of the

136 The holocaust compensation claims comprise many lawsuits, such as the Swiss Banks, German Slave/Forced Labor, Austrian Slave/Forced Labor, Austrian and French Banks, Austrian Property and IBM litigation, http://www.cmht.com/cases_holocaust.php. Particularly, see In re Holocaust Victim Assets Litigation, 105 F. Supp. 2d 139 (EDNY 2000) (upholding fairness of Swiss bank settlement); and In re Nazi Era Cases Against German Defendants Litig, 198 FRD 429 (D.N.J. 2000) (upholding fairness of German Foundation). For a discussion, see Eizenstat, S.: Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II (Public Affairs 2003). 137 Iwanowa v. Ford Motor Co. 67 F. Supp. 2d 424, 491 (D.N.J. 1999) (a class action). 138 Ramasastry has called the use of international comity here an example of the political question doctrine with another name. Ramasastry, supra, footnote 135. 139 Ramasastry (supra, footnote 135 at p. 130) asks the pertinent, rhetorical question, whether a government can or should ever grant amnesty (i.e. through settlement) for gross human rights violations without itself breaching its own duties under treaties and customary international law. 140 Filrtiga at p. 15. 141 See generally, No Safe Haven, the Campaign to Save the Alien Tort Claims Act, at http:// www.nosafehaven.org/. This organisation was set up in the context of the Sosa litigation. The legal section of the website lists 13 amicus briefs against a narrow interpretation of the ATCA, and ten for (including briefs submitted by the U.S. Justice Department, the governments of the U.K., Switzerland and Australia, and the E.U.).

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law of nations, particularly since ATCA claimants often cannot seek justice in their home countries or in other fora.142 4.3 Case against Caterpillar The current state of play with regard to ATCA litigation, and the way in which the theories of liability developed predominantly by the ICTY and ICTR have been picked up by the U.S. courts and those litigating before them, can be illustrated by a discussion of the Caterpillar case itself. The plaintiffs make seven distinct claims against Caterpillar:
(1) war crimes (breach of the IVth Geneva Convention); extrajudicial killing (defined in Torture Victim Protection Act); (3) aiding & abetting, conspiring in, or ratifying cruel, inhuman, or degrading treatment or punishment in violation of the law of nations; (4) violations of the Racketeer Influenced and Corrupt Organizations Act (RICO); (5) wrongful death; (6) public nuisance, and (7) negligence.143

More specifically, the breaches of international law in which Caterpillar is alleged to be complicit, are:
acts against a civilian population, in violation of the Fourth Geneva Convention, including but not limited to, articles 27, 32, 33 and 53. Intentional acts on the civilian population are strictly prohibited. Plaintiffs also allege that the home demolition and attack on Plaintiffs and decedents also constitute grave breaches of the Fourth Geneva Convention, which includes as grave breaches: wilful killing, torture or inhumane treatment, including wilfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property carried out unlawfully and wantonly. These deaths and injuries, all of which resulted from Defendants complicity, were foreseeable by Defendant.144

As such, the international crimes alleged belong to the narrow class of breaches of international law considered cognisable by the U.S. Supreme Court in Sosa.145 4.3.1 Direct responsibility for war crimes According to the plaintiffs:
by (1) supplying, selling, and/or entrusting bulldozers ; (2) renewing the lease of such equipment; (3) making repairs and/or supplying necessary parts and/or training, support, manuals, specialised knowledge, or other important knowledge and/or (4) failing to provide a warning regarding the use of the bulldozers, or to recall the bulldozers, cancel, or suspend the lease and/or sales of the bulldozers to the IDF even though legally entitled to do so, after it was foreseeable that acting or failing to act could lead to such abuses, and even after it knew or should have known through actual or constructive notice that the bulldozers were being used to commit war crimes, Caterpillar is directly responsible for war crimes.146
142 Amicus brief submitted in support of the petitioners by the World Jewish Congress, available at: http://www.nosafehaven.org/_legal/atca_pro_wrldJwshCongress.pdf#search= %22ATCA%20amicus%20brief%20world%20jewish%20congress%22. 143 Order (supra, footnote 7) at 1. 144 Plaintiffs Brief in Opposition to Defendants Motion to Dismiss (C05-5192FDB) (BiO), p. 5 (footnotes omitted) (document on file with the author). 145 Sosa at p. 732. The breaches must be of rules that are specific, universal, and obligatory. 146 FAC at para. 21.

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4.3.2 Aiding and abetting violations of international law The defendants role in aiding and abetting the alleged violations of international law is described in detail as:
since 1967, Defendant has provided bulldozers and/or significant parts or has made repairs to the bulldozers and has provided training, manuals, specialized knowledge and/or instructions regarding the bulldozers used to commit illegal acts. Defendant has been on actual notice since at least 2001 that the bulldozers and/or parts or other assistance related to bulldozers it was supplying the IDF were and are being used to commit demolitions in violation of international law in the OPT. Moreover, Defendant has been on constructive notice since at least 1967 when it first began supplying bulldozers and the United Nations began to condemn home demolitions as illegal under international law. Even with this knowledge, Defendant continued to supply bulldozers and/or parts or other technical assistance to the bulldozers knowing that such would be used by the IDF to commit torts in violation of state law and international human rights law and humanitarian law that could lead to deaths and injuries.147

The plaintiffs here aim to satisfy the standard of aiding and abetting used by the ICTY in Furundzija,148 and the ICTR in Musema,149 as confirmed by the U.S. courts in Unocal.150 Aiding and abetting as such consists of providing knowing, substantial assistance to a principal engaging in illegal conduct. The mental element required for complicity liability is the knowledge that the act would assist in the crime. Thus the aider and abettor need not share the specific intent vis vis the principal offence.151 He need merely have knowledge (which can be actual or constructive) that his act will assist the perpetrator. Notably, the supply of material or finance has been held capable of amounting to aiding and abetting in the U.S. courts in the context of the financial support of terrorism152 as well as in other cases such as Talisman153 and In Re Agent Orange.154 Caterpillars knowledge consisted in constructive knowledge that its products were being used in the commission of international crimes through the publicity campaigns by various human rights organisations. The company

147 BiO at pp. 3-4 (footnotes to more detailed descriptions of the allegations in the Plaintiffs First Amended Complaint omitted). 148 Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-T, T.Ch. II, 10 December 1998, at p. 359. 149 Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, T.Ch. I, 27 January 2000 at pp. 1. Both Furundzija and Musema also confirm liability for oral support which is the hightest form of complicity although some participation or effect must be proven. 150 This corresponds with the U.S. standard in tort: Restatement (Second) of Torts 876 (b) (1977). 151 See Prosecutor v. Dusko Tadic a.k.a. Dule, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995. This was also the conclusion in The Presbyterian Church of Sudan, et al. v. Talisman Energy Inc, et al., USDC SDNY 2005 US Dist. 30 August 2005, at pp. 301, 324. 152 Burnett, 274 F. Supp. 2d 86, 104-05. 153 Supra, footnote 102. 154 In re Agent Orange, 373 F. Supp. 2d at 52-54; 57-59; 113 (acknowledging the provision of products, knowing such would be used to commit violations of humanitarian law, could result in liability under the ATS if the underlying act was a violation of the law of nations quoted in Caterpillar, appeals brief at p. 41).

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received thousands of letters from organisations and individuals condemning the practice, and house demolitions have been publicly condemned by the U.N. and others since 1967. The company showed it had actual knowledge, when in 2001 it publicly acknowledged its awareness of the use to which its machines were put in response to protests by human rights groups and individuals.155 The plaintiffs, in their Appeal Brief, note that, This is not simply a case of an unwitting seller later discovering that his products have been put to illegal use.156 4.3.3 Violation of the Torture Victims Protection Act Plaintiffs also claim under the Torture Victim Protection Act (TVPA).157 an instrument adopted after Filrtiga specifically to enhance the protection of victims of torture and extrajudicial killing already existing under the ATCA. Extrajudicial killing falls under the offences covered by the TVPA. It requires that the acts complained of were carried out under actual or apparent authority of a state and/or colour of law. The killings complained of occurred subsequent to military orders, and, although they were deliberate, they were not authorised by a judgment of a court (i.e. they do not constitute a death penalty instituted after a fair trial). Therefore, these killings amount to extrajudicial killings. The TVPA has been held to cover crimes perpetrated by private individuals, and to exclude corporations from this (as the court attempted to, in its dismissal) would defeat the object and purpose of the act, and the sentiment expressed in Filrtiga. 4.3.4 Cruel, inhuman, or degrading treatment or punishment The illegal destruction of homes resulted in severe physical and psychological abuse and agony, humiliation, fear and debasement; the injury of family members during such destruction, resulting in profound fear and anguish.158 These acts amount to cruel, inhuman, or degrading treatment or punishment, in which Caterpillar aided and abetted, conspired in, confirmed or ratified. The aiding and abetting proximately caused the abuses, and the injuries complained of, to foreseeable victims.159

155 Caterpillar Complaint, filed 15 March 2005, available at http://www.ccr-ny.org/v2/legal/ corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. See the 2001 response by Caterpillar at www.catdestroyshomes.org. 156 Caterpillar Appellants Opening Brief USCA for the Ninth Circuit (AB), at p. 28. Document on file with the author. 157 Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350) (note). Section 2: Establishment of a civil action (a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individuals legal representative, or to any person who may be a claimant in an action for wrongful death. 158 FAC at para. 24. 159 FAC at para. 24.

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4.3.5 Violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) The same breaches of international law committed by the Israeli military also underlie the plaintiffs claim under the RICO. The RICO statute160 provides as follows:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt.

Plaintiffs allege, that, in violation of RICO,


the Defendant, and the IDF formed an enterprise and conspired with the IDF to engage in a pattern of illegal acts. Defendant significantly collaborated and shared technology with the IDF relating to the bulldozers that Defendant knew would be used to commit violations of international law; Defendant transported the bulldozers, parts, and related technology to the IDF; Defendant provided the IDF with aftersales support and other technical support; and the Defendant provided training of the IDF regarding the operation and maintenance of the bulldozers used to commit violations of international law.161

4.3.6 The common law torts of wrongful death, public nuisance, and negligent entrustment These tort claims rest on the fact that the company owed a duty to the foreseeable victim, and that its acts and omissions directly and/or proximately caused the foreseeable harm. The claim of public nuisance rests on Caterpillars interference with the plaintiffs rights, including the right to health, public safety, and the public peace.162 4.4 Dismissal of the Caterpillar case Caterpillar moved for dismissal of the claim for failure to state a claim and pursuant to the political question and act of state doctrines. In its motion, Caterpillar argued that there is no legal basis for the allegations that Caterpillar can be liable in damages for selling a legal, non-defective product to the government of Israel. Also, Caterpillar argued that the injunctive relief sought

160 18 U.S.C. 1962(c). 161 The Caterpillar plaintiffs also argue a number of common law claims, including negligent entrustment: which is proven when the defendant: (1) permits the use of a thing which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others; or (2) supplies chattel for use by a person whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others (Restatement (Second) of Torts 308 (1965). 162 FAC, paras. 28-30.

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by the plaintiffs is a political goal that is inappropriate to pursue in this lawsuit.163 The U.S. District Court of the Western District of Washington at Tacoma, granted the order, explaining its reasons in an unusually brief, 17-page opinion. The court held that plaintiffs failed to state a claim in their first, second, and third claims for relief,164 agreeing with the defendant that selling products to a foreign government does not make the seller a participant in that governments alleged international law violations. The court took note of Sosa requiring it to limit ATCA cases to claims,
based on the present day law of nations to rest on a norm of international character accepted by the civilised world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognised.

The Sosa court had warned of the possible collateral consequences to the foreign relations of the U.S. flowing from private allegations of a foreign governments violations of the law of nations: the consequences from a lack of caution could have significant, if not disastrous effects on international commerce.165 The Sosa warning was eagerly heeded by the Caterpillar court, which stressed the danger of impinging on the discretion of the Legislative and Executive branches in managing foreign affairs, and the lack of a congressional mandate to seek out and define new and debatable violations of the law of nations.166 Further, the court found that questions about the proportionate use of force may have to be done on a case-by-case basis and the answers may differ depending on the background and values of the decision maker.167 In addition, the court found that neither the Geneva Conventions nor the ICCPR are selfexecuting, that is, they do not expressly or impliedly create a private claim for relief.168 According to the court, the plaintiffs had also not exhausted local remedies, while Israeli tort law provides adequate remedies for plaintiffs injured as a result of tortuous conduct, and that Israels courts are generally considered to provide an adequate alternative forum for civil matters.169 Most notably, the court stated, that only individuals who have acted under official authority or under colour of such authority may violate international law.170

163 Caterpillar Order Granting Defendants Motion to Dismiss (Order), 22 November 2005, available from http://www.ccr-ny.org/v2/legal/corporate_accountability/ corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546, at 2. 164 See above, sections 4.3.1-3. 165 Sosa, at p. 33. 166 Order at p. 4. 167 Order at pp. 5-6 (references to Sosa omitted) 168 Order at p. 6. 169 Order at 6. Note that the plaintiffs argue that the tort (i.e. the decision to make the sale) occurred in the U.S. 170 Order at p. 6.

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Ostensibly pre-empting its examination of the ATCA part of the case, the court decided that the Corries could not bring an ATCA claim as ATCA is an instrument only for foreigners.171 Added to this the court held that, in any case, an ATCA claim for aiding and abetting must fail because the aiding and abetting does not constitute an offence sufficiently specific to satisfy the Sosa standard.172 The tort claims are broadly dismissed for lack of a direct causal relationship with the court agreeing with the defendant that the manufacture and sale of its tractors was not the but-for cause of Plaintiffs injuries, as the IDF did not need to use Caterpillar products to demolish houses. There is no direct causal relationship between Plaintiffs injuries, and Caterpillars sales of bulldozers to Israel. Caterpillar merely sold bulldozers. The IDF used them.173 The court concluded its argument by calling plaintiffs argument frivolous. Finally, the court dismissed the case as it interfere[d] with the foreign policy of the United States of America.174 Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.175 To support its argument, the court stated, [i]n this case neither of the other branches of government has urged or enjoined sale of weapons to Israel nor restrained trade with Israel in any other manner. For this court to preclude sales of Caterpillar products would be to make a foreign policy decision and to impinge directly upon the prerogatives of the executive branch of government.176 Finally, as its closing statement, the court said: As Caterpillar has stated and this court agrees: This lawsuit challenges the official acts of an existing government in a region where diplomacy is delicate and U.S. interests are great.177 4.5 The Appeal: a de novo review In the U.S., a district courts dismissal for failure to state a claim is reviewed de novo.

171 Order at p. 7. 172 Order at p. 8. The Order is opaque at this point: While international law may recognize accomplice liability in some instances, the conduct alleged must first rise to the level of a claim under Sosa. 173 Order at 12. However, note the plaintiffs AB at 41: Caterpillar engaged in transactions with the IDF that, even if not illegal, are suggestive of a willingness to serve customers who may intend to circumvent the law. (referring to Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 394, 821 N.E. 2d. 1099 (Ill. 2004), finding that a defendant who engages in such transactions would foresee injury). See also Bernethy v. Walt Failors, Inc., 97 Wash. 2d. at pp. 929, 934, 653 (Wash. 1982) (finding that a firearm seller could be liable for negligent entrustment where he sold a rifle to an intoxicated man, who killed his wife with the rifle shortly thereafter). 174 Order at p. 15. 175 Order at p. 15 (quote from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)). 176 Order at p. 16. 177 Order at p. 17 (reference to Caterpillars reply omitted).

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Plaintiffs allegations are assumed to be true, and dismissal should be granted only if there is no possibility that Plaintiffs facts may state a claim for relief. ... If the allegations provide the basis for any claim for relief, the motion must be denied.178

Considering the number of errors the district court made, this hurdle should not be difficult to pass. However, this poses no guarantees for the next stage in the proceedings. The U.S. Court of Appeal for the Ninth Circuit is expected to issue its judgment in the latter months of 2006. In their opening brief, plaintiffs emphasise that,
[t]he question at the heart of this case is whether five families can hold a U.S. corporation accountable for knowingly assisting war crimes and other violations of U.S. law. The District Court not only denied these families remedies for the killing of, or injury to their relatives, but it also undermined important legal principles in ways that will harm victims of human rights violations in the future.

As will be obvious from the discussion above of the law and the claims made by the Caterpillar plaintiffs, the court erred in numerous ways in its decision. The court failed adequately to analyse and address all elements of each claim made in its brief and lacksadaisical opinion. The court forgot the plaintiffs Geneva Convention claims breaches of (the main one being the attack of civilians, and the other relevant one being the practice of demolishing civilian homes without notice or necessity) which are well recognised and definite. The court ignored the work of the various U.S. and international judicial organs over the past decades in shaping the now well-known doctrines of aiding and abetting in international law,179 and equally established practice of the application of war crimes law to private actors. Most strikingly, in dismissing the ATCA claim, because the Corries are not aliens as required by the Act, the court forgot the Palestinian plaintiffs.

5 POLITICS OF ENFORCEMENT
Most prominent in its dismissal of the Caterpillar Case is the U.S. District Courts reflexive invocation of the Political Question Doctrine.180 In short, the court confus[ed] the politics surrounding the case with a doctrine meant to protect the constitutional powers of each branch of government.181 Despite the apparent possibilities offered by ATCA, no ATCA litigation has so far resulted in a victory for the defendants. Out of around 40 cases brought

178 AB at pp. 11-12 (emphasis added). 179 In any case, [t]here is simply no requirement that liability rules such as aiding and abetting be specific, universal, and obligatory in order to be actionable. AB at p. 22 (referring to Sosa, at p. 748). 180 AB at p. 11. 181 AB at p. 43. The plaintiffs go on to discuss the six Baker factors six reasons why the court may invoke the political question doctrine, none of which apply in this case. The Baker court held that it is an error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. And, judges should not reflexively invoke doctrines to avoid difficult and somewhat sensitive decisions in [the] context of human rights. AB at p. 44, quoting Baker v. Carr, 369 U.S. 186, 217 (1962).

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against corporate actors so far most of which dealt with international crimes the majority have been dismissed (most on jurisdictional grounds), a number have settled and some are still pending. The main obstacle to enforcement on corporations appears to be the political question doctrine. This doctrine allows the court to decline to pass judgment if it considers that by doing so it would impinge on the mandate of the executive branch of government. One of the most striking examples of the use of this doctrine can be found in the decision on the Apartheid Litigation Cases. In the Apartheid Litigation decision Judge Sprizio held that deciding the case would force him to make decisions that were in the competence of the executive and would interfere with foreign policy. Collateral consequences of such a decision would be damaging to the relationship between South Africa and the U.S. The judge added that he wouldnt want to set a precedent meaning you could not do business in countries with a less than stellar human rights record.182 In earlier cases set in the context of the Israeli-Palestinian conflict, the U.S. courts have refused to apply the political question doctrine. In Biton v. Palestinian Interim Self Govt., the court stated: Although the backdrop for this case i.e. the Israeli-Palestinian conflict is extremely politicised, this circumstance alone is insufficient to make the plaintiffs claims nonjusticiable.183 In Knox v. PLO, the court found no need to address political questions which form the backdrop to this lawsuit,184 and although in Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, etc the Second Circuit expected that its decision would surely exacerbate the controversy surrounding the PLOs activities, it refused to dismiss the claim as non-justiciable for raising foreign policy questions.185 Finally, Ariel Sharons claim for libel was justiciable, because abstention is not appropriate when individual rights in domestic affairs are at stake, even where the litigation touches upon sensitive foreign affairs concerns186 Further, [t]he Supreme Court has made it clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians. It does not infringe upon the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims 187 Indeed, the court has a constitutional duty to pass judgment on any legal question before it, where there are judicially discoverable and manageable standards for it to apply.188
182 Apartheid Litigation at final para. 183 310 F.Supp. 2d 172, 184 (D.D.C 2004). 184 306 F.Supp. 2d 424, 429 (S.D.N.Y. 2004). See also: Ungar v. Palestinian Liberation Org., 402 F. 3d 274 (1st Cir. 2005) (shooting victims claims justiciable because the fundamental nature of the action was a tort suit). 185 938 F.2d 44 at 49 (2d Cir. 1991). 186 Sharon v. Time, 599 F. Supp. 538 (S.D.N.Y. 1984). 187 AB at pp. 83-4. 188 Another means of avoiding passing judgment is the invocation of the act of state doctrine. However, this doctrine does not apply on occupied territory nor does it apply to military commands that violate jus cogens norms. Also, when the state has already condemned the human rights abuses of this kind, it seems unlikely that judicial consideration of them will provoke a hostile confrontation between Israel and the US. (AB at p. 11).

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The President of the Supreme Court of Israel, Judge Aharon Barak, has recently voiced his dismay with regard to the shirking of constitutional duties: The Court should not abdicate its role if its uncomfortable or fears tension and, the more [the Political Question Doctrine] is used, the less opportunity there is for [the judge to exercise her mandate of] protecting the constitution and democracy. 189 Perhaps ironically, the International Court of Justice (ICJ) in its Advisory Opinion on the Wall also faced the decision whether the question put before it was legal or political.190 Israel and most European states argued that the question that faced the court was of a political nature, but the ICJ recognised the legal nature of the case before it. The misuse of the political question doctrine leads to the erosion of the rule of law and a yielding to the claim that law (especially international law) is politics.191

6 THE ECONOMICS OF COMPLIANCE


Although the claims against Caterpillar are comprehensive and persuasive, there seems little chance that the U.S. Court of Appeal for the Ninth Circuit will overturn the District Courts dismissal. A realjuristische perspective forces one to admit that in the current climate enforcement of law, application of the rules in this, or a similar scenario, is unlikely to be forthcoming, even in a nominally neutral, third state forum.192

189 The Role of the Judge in a Democracy, Lecture at Tel Aviv University, 9 May 2006. 190 Generally, the political question doctrine in international law is used in cases where applicable legal standards are claimed not to exist; although it is also used in the Wall proceedings to suggest that answering the legal questions would frustrate the (political) peace process. 191 The policy argument for enforcement of international law on corporations committing violations of IHL and IHR is also made, for example by EarthRights International in its amicus curiae brief to the USCA for the second circuit in the South African Apartheid Litigation. EarthRights argues that ATS aiding and abetting liability ensures that corporations will not only explain democratic values and institutions to officials of repressive governments, but will also demonstrate through their actions in attempting to limit the possibility that abuses will occur that those values and institutions are not merely aspirations, but actually govern the conduct of members of democratic societies, including corporations. And: [w]e cannot effectively demonstrate our commitment to these principles [of human rights, democracy, the rule of law] if we deny that aiding and abetting is an established principle for human rights violations or if we afford those complicit in genocide, torture, or murder more favourable treatment than those who assist acts of terrorism. AC brief at pp. 22, 23, available from http://www.ccr-ny.org/v2/legal/corporate_accountability/ corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. 192 On going to press, however, the U.S. District Court for the Ninth Circuit (where the Caterpillar appeal is pending) ruled in favour of the plaintiffs in Sarei v. Rio Tinto, PLC 221 F. Supp. 2d 1116, 1121-27 (CD Cal. 2002), overturning the district courts dismissal. See Appellate Court Decision is Huge Victory for Human Rights, Environment and Corporate Accountability, EarthRights press release 10 August 2006: Plaintiffs, residents of Bougainville, Papua New Guinea, allege they were victims of human rights and environmental abuses associated with Rio Tintos Panguna mine. This victory will not only benefit the plaintiffs in Sarei, but also sets a valuable precedent that could prove critical in many other Continued overleaf

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The Caterpillar litigation has caused lawyers, parliamentarians and the public to ask questions about corporations dealings with Israel, particularly where these dealings may involve breaches of international law. The Caterpillar litigation has given new impetus to a high-profile boycott and divestment campaign. 193 A number of fund managers, including churches, have started examining their portfolios for shares in potentially complicit companies.194 NGOs have started pressure campaigns aimed at companies involved in, for example, building the Wall,195 and the light railway line between Jerusalem and Pisgat Zeev (which will be built partly on occupied territory).196 Other campaigns concern companies import and sale of settlement products,197 and supply to the military, like Caterpillar. In the U.K., M.P.s aware of U.K. companies supplies of hardware to the Israeli military, are attempting to have items like bulldozers reclassified as military equipment, thus subjecting exports to a stricter regime. In the Netherlands, lobbying has led to questions being asked in Parliament about the involvement of a Dutch company in the construction of the illegal Wall in the Jordan Valley.198
cases challenging human rights and environmental abuses. This case is particularly important for at least three reasons. First, the court held that a corporation can be held liable under the Alien Tort Statute (ATS) where it aided and abetted abuses or where members of the military act on behalf of the corporation in committing abuses. Although many other courts had already ruled that those who aid and abet abuses can be held liable under the ATS, corporate defendants and the Bush Administration have continued to argue that aiders and abettors should be immune from suit. Opinion of 7 August 2006 and press release available at http://www.earthrights.org/legalrelated/appellate_court_decision_is_huge_ victory_for_human_rights_environment_and_corporate_accountability.html. Ironically, boycott campaigns inside the occupied territories have limited chance of success. For various reasons, including conditions of donors of, e.g. roadbuilding projects to buy certain materiel, and the impossibility of importing anything into the Occupied Territories that is not specifically permitted by Israel, Caterpillar bulldozers are purchased by the PA and municipalities in the West Bank and Gaza (information supplied by the Ramallah dealership of Caterpillar). N.B., Israel also uses Volvo and JCB machines for house demolitions and in the construction of the Wall. Presbyterian Church (U.S.A.) Divestment Resolution, available at: http://www.pcusa.org/ ga216/news/ga04121.htm; Church of England divestment: Transcript 06 February 2006, available at: http://www.cofe.anglican.org/search?SearchableText=divestment&go=Go. Amnesty Urges Irish Company to Explain Its Role on Israeli Fence/Wall, 19 February 2004, available at: http://www.amnesty.ie/user/content/view/full/1624. See Alstom, le tramway dAlger, Jerusalem, La Palestine, 17 March 2006, available http:// www.pourlapaixenpalestine.ras.eu.org/article.php3?id_article=525. E.g., the campaign against Marks & Spencer by the Boycott Israel Campaign, see http:// www.inminds.co.uk/boycott-marks-and-spencer.html. Also, activist lawyers are challenging the E.U.- Israel Association Agreement. Arguments are being made to challenge violations of the rules of origin, which allows companies to benefit from duty free trade with (predominantly) produce grown outside Israel in illegal settlements, see, for example, the Euro-Mediterranean Human Rights Network Report available at: www.euromedrights.net/english/news%20bulletin/2006/21/ WG%20on%20Palestine-Israel_ENG.pdf . See questions asked by Koenders, M.P., http://parlando.sdu.nl/cgi/login/anonymous. See also the invocation of Irish constitutional principles to support the condemnation of an Irish companys involvement with the construction of the Wall. Lawyers have started to think creatively about ways and means to challenge corporate behaviour. In the U.S. case of Kasky v. Nike, the plaintiff challenged Nikes own statements on good corporate citizenship in its annual report as false advertising (Nike, Inc. v. Kasky 539 U.S. 654 (2003) Docket Number:

193

194 195 196 197

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Ultimately, the purpose of a legal challenge is not to secure victory in court, but to change behaviour on the ground in line with the legal norms prevalent in international society. If the threat or instigation of litigation, combined with the various civil society campaigns, moves the company to change its behaviour in order to preserve its privacy and protect its most valuable asset (its brand) then this goal is accomplished. Market-induced compliance may thus prove an alternative where judicial enforcement is not forthcoming.

7 CONCLUSION
In this article I set out to show three things. First, how an occupying state can successfully deny the nation it occupies the means to challenge the legality of the occupiers actions. Domestically, the occupying state uses laws that it enacts (without the occupied peoples democratic participation) and the legal institutions that habitually pay deference to its decisions, to shield itself from legal scrutiny. Further, by not fully participating in the international legal system (through not joining international enforcement mechanisms), it disables the occupied nation from the means to assert its rights on the international level.
02-575, Decided 26 June 2003). The Supreme Court declined to hear the case and it eventually settled, with Nike donating $1,500,000 to a fair labour standards charity. Many companies have in recent years adopted codes of practice that invite being tested against reality. Caterpillars Worldwide Code of Conduct, for example, notes that Every decision we make, every action we take, can affect employee morale, the way the world perceives our company and the sustainable results we achieve factors that impact our own lives and livelihoods. In great measure, we have achieved our worldwide leadership position by upholding our reputation for acting with the highest values and principles. We will continue to lead only if we keep that reputation intact. (at p. 6.). While good governance codes do not provide for strong supervisory or enforcement mechanisms, [they] do offer a lightning rod for external pressure and scrutiny of conduct, and may engender such responses as consumer boycotts, negative publicity, and shareholder action if public opinion is mobilized around breaches of codes to which the non-state actor has professed adherence. Alston, P. (ed.): Non State Actors and Human Rights, Oxford University Press, 2005, at p. 26, and see also pp. 55-6 and pp. 74-5. There also appears to an appetite for the prosecution of individual business actors. The International Criminal Courts chief prosecutor has expressed a desire to prosecute individual business people guilty of crimes within the courts jurisdiction, in recognition of the vital role they play in conflict (Luis Moreno Ocampo, speech at the Business & Human Rights Seminar, London, 9 December 2005). The ICC is of course limited in its capacity and jurisdiction (both temporal and geographic) and thus relies on domestic courts to complement its mandate. In a progressive move in this direction, the Dutch Justice Ministry has set up a special war crimes unit, which is currently investigating hundreds of potential cases and preparing many for prosecution. In November 2005 Frans van Anraat, a chemicals trader, was convicted for supplying the gas that Saddam Houssein used to gas the Kurds in Halabja in 1989. The businessmans trade was held to have amounted to complicity in the war crimes committed by Saddam Houssein. The court stated: It has been established that the suspect consciously and purely motivated by profit, lent essential assistance to the chemical weapons programme of Iraq in the 1980s. His contribution has made possible a large number of attacks using mustard gas on defenceless civilians, or at least made those easier. These attacks constituted very serious war crimes. LJN: AU8685, Rechtbank sGravenhage, Decision of 23 December 2005, parketnummer 09/751003-04 (literal translation authors own). See also the pending Dutch case against a businessman accused of trading timber for arms with Charles Taylor: http://www.nrc.nl/buitenland/article291630.ece.

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This also shows that international law, still essentially state-based, is ill-equipped to serve the stateless. Second, I have demonstrated how, in a private humanitarian intervention through law, Palestinians and their representative international cause lawyers have made use of the opportunity offered by the Alien Tort Claims Act. In the footsteps of the Nuremberg Tribunals, they have accused a multinational corporation of playing an instrumental role in war crimes committed against a civilian population. This litigation has helped to publicise acts committed by the occupiers military, and to examine the legal significance of the Caterpillar Inc.s commercial ties with the occupying state. Third, I have shown how the Caterpillar litigation has had the secondary effect of exposing the U.S. courts sensitivity to political pressure and the regrettable legal vacuum this threatens to cause. As such, the litigation doubly functions as a mobilisation of shame.199 Governments amicus curiae briefs in many of the major ATCA cases, urging the courts to stand aside in deference to, for example, economic relations rather than to pronounce on the legal questions before them, defy the Rule of Law. States have recently shown willing to stretch the concept of complicity to criminalise acts such as the financing of terrorism. This does not sit well with the arguments against prosecution of aiders and abettors to other perpetrators of violence. In Filrtiga, the court recognised that plainly, international law does not consist of mere benevolent yearnings never to be given effect.200 The Caterpillar appeal provides the judges of the U.S. Court of Appeal for the Ninth Circuit with the opportunity to halt economic interests riding a metaphorical bulldozer through the law of nations, and instead, to show that domestic courts faced with individual claimants are in fact instrumental in upholding international Rule of Law.

199 See generally, Joynce, J.A.: Mobilization of Shame, in the New Politics of Human Rights (1978). 200 Filrtiga at 6.