Thursday, June 16, 2005

Sudan, Darfur & the U.S.: What's the ICC Got to Do With It? [Apologies to Tina Turner]

What's the ICC Got to Do With it? What's the ICC but a 2nd rate treaty? What's the ICC Got to do with it? What does the United States need with a treaty it hasn't ratified?

Apparently, quiet alot. Some of you know that for several years, I helped litigate a case against the Government of Sudan & Talisman Energy of Canada for human rights abuses. The case is far from dead, although having lost class certification, it will cost Talisman alot less to settle. However, on 13 June, the Southern District of New York gave a base hit to the Plaintiff's team I used to work for. (For a copy of the complaint, see www.bergermontague.com).

The issue was whether or not international law, and by extension, U.S. law, will allow a corporation to be held liable for human rights abuses, either directly, or indirectly as an accomplice. The answer? Yes, at least at first blush, i.e. enough to go to trial most likely.

Judge Cote (who previously denied class certification), found that corporate liability can exist, as a matter of law, for human rights violations. Talisman claimed that since no international treaty declared corporations _could_ be liable, then they could not. While I won't try to explain further the legal argument, her analogy in denying Talisman's claim is poetic and pithy:

"Such an argument is akin to claiming that a rule governing the law of the sea has not reached the status of customary international law because a number of landlocked States have not adopted it." Strike one!

Also of interest was Talisman's claim that the International Criminal Tribuanls (for Yugoslavia and Rwanda), along with the International Criminal Court (Treaty of Rome), were not appropriate sources to look for whether an international human rights norm exists.

The Flores court (2nd Cir. case) decided that the European Court of Human Rights could not create new norms of international law because it was a regional body. Talisman argued, by analogy, that the ICTY and ICTR were also regional bodies incapable of norm creation. However, Judge Cote pointed out that they differ from the ECHR because they were created by UN Security Council resolutions; not a regional treaty, and that this was done for the express purpose of interpreting international law. Strike two!

Finally, Judge Cote rejected that the ICC was not a source of international norms. As a treaty that was ratified by two or more states, it provided "some" evidence of the custom and practices of nations; and while "on its own" it was insufficient to prove the existence of a new international law norm, it could be used, in context with other treaties, to prove the existence of such. Strike three!

[Disclosure: Nothing I have discussed here relies upon any inside knowledge of the current litigation; of which I have none, having left the legal team over 1 year ago. ]

The opinion can be found below:

https://ecf.nysd.uscourts.gov/cgi-bin/login.pl?601348025577453-L_238_0-1

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