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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Papua New Guineans Have Case for Genocide

(CN) - International mining giant Rio Tinto must face charges of genocide and war crimes for its alleged role in a violent crackdown on indigenous workers in Papua New Guinea, the 9th Circuit ruled Tuesday.

Current and former residents of the island of Bougainville sued the British-Australian mining corporation in Los Angeles more than a decade ago, and elements of the case have now twice gone before a full panel of 9th Circuit judges. Lead plaintiff Alexic Sarei and 21 other indigenous residents of the island claimed under the Alien Tort Statute that Rio Tinto committed a host of crimes against humanity, war crimes, murders, environmental abuse and a general pattern of racial discrimination while operating a large copper mine on the island from the late 1960s through the 1990s.

Events came to a head on Bougainville in 1988, when worker protests forced the mine to close. The plaintiffs alleged that Rio Tinto spurred the government of Papua New Guinea toward a violent crackdown by threatening to pull its investment from the country if the protests continued, and that it helped transport troops to quell the uprising. The subsequent massacre gave birth to a decade-long civil war that pitted the Bougainville Revolutionary Army against government troops. Rio Tinto allegedly assisted the government by supporting a blockade that denied the rebels medical supplies and other essentials, leading to many deaths on the island.

The case has become somewhat of a poster child for circuit-court interpretation of the Alien Tort Statute after the U.S. Supreme Court's 2004 decision in Sosa v. Alvarez-Machain. Part of the Judiciary Act of 1789, the Alien Tort Statute allows foreign nationals to file civil claims in U.S. courts for crimes "committed in violation of the law of nations or a treaty of the United States." In Sosa v. Alvarez-Machain, the justices attempted to stake out the borders of the statute, finding that it is only available for a "limited category of claims for violation of internationally accepted norms."

It has thus far been left to the lower courts to determine just what that means.

Though the issue divided an 11-judge panel of 9th Circuit in San Francisco, Tuesday's ruling put genocide and war crimes in that category, leaving out racial discrimination and crimes against humanity.

Genocide "has been criminalized by all of the international criminal tribunals," according to the panel, and it is undisputed that it and war crimes are as universally condemned as can be.

This is not the case, however, with the plaintiffs' claims of crimes against humanity for Rio Tinto's alleged role in the blockade, according to the panel.

"To meet the Sosa test ... the blockade must be a violation of a recognized specific norm," Judge Mary Schroeder wrote for the majority. "The statutes do not create such a norm. There is no source of recognized international law that yet identifies a food and medical blockade as an 'other inhumane act[ ]' or otherwise qualifies it as a crime against humanity. In the absence of any such source, a food and medical blockade does not violate a specific internationally recognized norm within the meaning of Sosa."

While there is also certainly a "universally recognized prohibition against systematic racial discrimination," the District Court in this case had failed to "address the additional requirement under Sosa that the prohibition be sufficiently specific and obligatory."

The en banc panel, divided as it was, remanded the case back to Los Angeles, where U.S. District Judge Margaret Morrow originally dismissed the lawsuit for failure to state a claim. The suit first made its way to the 9th Circuit in 2003, where a three-judge panel focused on the question of whether the plaintiffs should have first taken their claims to Papua New Guinea's courts, thus exhausting their local remedies, before resorting to the Alien Tort Statute and filing suit in the U.S. That first panel's ruling was replaced in 2005 after Sosa changed the alien-tort landscape, and the first en banc panel reversed the District Court's dismissal. The panel also found that the exhaustion issue should be considered case-by-case, based on "prudential exhaustion principles." On remand, the District Court found that it would be "inappropriate to impose a prudential exhaustion requirement on plaintiffs' claims for crimes against humanity, war crimes, and racial discrimination." This got the second full panel of 9th Circuit judges involved to consider whether those were proper claims under the statue.

Writing in dissent, Judge Andrew Kleinfeld argued that the majority had applied the tort statute too broadly, which he said could result in an unintended expansion of the court's power reach.

"The complaint in this case seeks damages and an injunction against Rio Tinto, a British-Australian corporation, for wrongs against people in Bougainville, Papua New Guinea," he wrote in one of several varied dissents, partial dissents and concurrences included in the 166-page filing. "Now that our court has adopted universal jurisdiction to grant tort damages for violations by foreigners against foreigners in foreign lands of 'the law of nations,' in a plethora of opinions that cannot agree on what the 'law of nations' prohibits, we on the Ninth Circuit now exercise jurisdiction over all the earth, on whatever matters we decide are so important that all civilized people should agree with us."

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