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A Great Month for Impunity in US Courts

Rogue states require a rogue judiciary.

What would happen to someone who killed ten thousand of the wealthiest people in the United States through some act of gross negligence? Or what if somebody doused the neighborhoods of the wealthiest 0.003 percent with billions of gallons of toxic waste? Do you think that in either of these two wildly hypothetical cases the perpetrators would be able to work the US legal system to stay out of prison?

As crazy as these questions are, asking them is essential to assessing two US court rulings that were upheld on appeal in August.

On August 18th, the US Second Circuit Court of Appeals in New York upheld a lower court ruling that denied compensation to thousands of Haitian victims of the lethal negligence of UN troops. In 2010, UN troops discharged raw sewage into a river that caused a cholera outbreak that has now killed over 10,000 people. For several years, evidence of the UN’s guilt has been overwhelming. A 2011 study by the US Centers for Disease Control and Prevention said UN troops were the likely cause of the epidemic. A day after the appeals court shielded the UN, a leaked report emerged in which a UN Special Rapporteur (Philip Alston) noted that scientific evidence of UN guilt was “overwhelming.” However, backed completely by the Obama administration (whose lawyers represented the UN in court) the UN was let off the hook by a very dubious technical argument that it had legal immunity. Alston’s leaked report said it found the UN’s argument to be “legally indefensible.” The argument would surely have been disregarded (quite angrily) by US judges if the victims were among the wealthiest in the world, not the poorest people within poorest country in the Western Hemisphere.

It will be considered a major achievement if the UN can be pressured, someday, into providing reasonable compensation to the families of the cholera victims. Prison terms are not even being pursued for the UN officials responsible. As I explained in more detail here, grave crimes perpetrated by the UN troops in Haiti are not limited to the negligence that caused the cholera epidemic. UN troops have been stationed in Haiti since 2004 to consolidate a coup directly perpetrated by the Bush administration against Haiti’s democratically elected government. As Jake Johnson explained here, the US government, in collaboration with the OAS bureaucracy, thoroughly corrupted Haiti’s 2010 presidential election. Since 2015, the Obama administration has been pressuring Haiti, with less success than in 2010 so far, to accept fraudulent elections again. UN troops have provided muscle and political cover for US government’s ongoing assault on democracy and human rights in Haiti. For that very reason, UN officials have little to fear from US courts.

On August 9, the same appeals court that allowed the UN to evade responsibility for killing 10,000 Haitians, upheld a ruling that shielded Chevron, a US$200 billion a year corporation, from paying US$9 billion in compensation awarded by Ecuadors Supreme Court in 2013 to victims of pollution in Ecuadors amazon. From 1964-1992, 16 billion gallons of waste had been dumped on the land of the poorest people in Ecuador. The legal battle began in New York in 1993, but Chevron successfully fought to have it moved to Ecuador where it felt confident of receiving even more lenient treatment than in the United States, especially if a US jury (which Chevron has never faced in this case) were to have passed judgment on what was done in the Ecuadorean Amazon.

A few years after Chevron succeeded in getting (guess who?) judges from the Second Circuit Court of Appeals in New York to send the lawsuit back to Ecuador, the political situation in Ecuador changed drastically. Ecuadorian president Rafael Correa first took office in 2007. Under Correa, voters elected a constituent assembly to rewrite the constitution which was then ratified in a referendum. Ecuadorean voters, also through a referendum, ratified reform of the judiciary. The corporate-friendly judicial climate to which Chevron had grown accustomed in Ecuador came to an end.

Chevron returned to US courts arguing not only that a provincial court ruling against it in Ecuador was won by fraud, but that Ecuador’s entire judiciary was now incapable of settling the dispute. Ecuador’s judiciary was disparaged to get out of a promise Chevron made to the Second Circuit Appeals Court in 2002 to honor Ecuadorean jurisdiction which Chevron had demanded. In 2014, a US district court obligingly concluded that Ecuador “does not provide impartial tribunals or procedures compatible with due process in cases of this nature.” The reasons offered for the conclusion were pitiful as I explain here. The Second Circuit Appeals Court, though it upheld the district court ruling, completely sidestepped the indictment of Ecuador’s entire judiciary by saying “we do not reach any contentions as to the Ecuadorean judiciary in general.” Instead, technical grounds were given to let Chevron shop around for the judiciary it wanted whenever it wanted.

A similar pattern emerges with other rulings that went to extreme lengths to enable corporate criminality abroad. High level courts simply polish up the justifications for corporate impunity provided by lower courts. For example, the Second Circuit Court of Appeals ruled in 2009 that international human rights law is not sufficiently “specific, universal, and obligatory” for corporations to ever have to worry about it under the US Alien Tort Statute. This was the basis for dismissing a case brought against Royal Dutch Shell for aiding the Nigerian government supress protestors through torture, rape and murder. The US Supreme Court upheld the ruling on different grounds: “extraterritoriality” — thereby maintaining corporate impunity in the case but without resorting to the more unhinged arguments championed by Jose Cabranes, a judge on the Second Circuit Court of Appeals. In August, Cabranes was also one of the judges who shielded the UN from any legal consequences for killing thousands of Haitians. In 2003, Cabranes was one of the judges for Second Circuit Court of Appeals who argued that a US corporation could not be sued by Peruvian miners who suffered severe lung disease because it was wrong to claim that under “customary international law” there is any such thing as the “right to life” or “right to health.”

Hopefully, the United States will avoid an era of Donald Trump appointed judges, but it should be noted that some of the judges (Jose Cabranes, Lewis Kaplan) responsible for the outrageous rulings described above were appointed by Bill Clinton. An era of nasty judicial extremism would get worse under Trump, but it long predates his success as a presidential candidate.