Dear
Robert,
I read with great interest your article about the lawsuit the Corrie family
has brought against Caterpillar Inc. I have read your columns with great admiration over the years, and have enjoyed chatting with you the
few times we have met (I think the last time was at an event for the Desmond Tutu Peace Foundation -- maybe when Linda Biehl came to speak?)
I should disclose at the outset that not only is the human rights clinic here
at the Seattle University School of Law representing the Corries in this case, but that I have been helping our clinic, our students, and the
other lawyers working on the case. So I cannot claim to be completely objective about the case. Having said that, my expertise is
in the area of public international law and international human rights law. There are three points I would therefore like to make concerning
your comments on the case.
First, holding individuals, including corporations, accountable for their
involvement in violations of human rights law is not a new idea. Most prominently corporations and corporate officers were held accountable
after World War II for their complicity in the Nazi holocaust. Today, lawsuits have proceeded against, among others, Shell
Oil Company and Unocal for their complicity in human rights abuses in Nigeria
and Myanmar
respectively. Domestically corporations have always been held
accountable for some harms caused by their products . The defense that we were just selling the materials and did not pull the trigger
(or in this case drive the bulldozer) is not a recognized defense under both domestic and international law, if it ever was. It is
reminiscent of the "just following orders" defense that has been so thoroughly discredited since World War II. For a more contemporary
analogy, think of the individuals and organizations who finance terrorism -- for example the attacks on September 11, 2001. Those
individuals and organizations did not fly the planes; they did not train the pilots; they did not plan the attacks -- but they provided financing and
other support knowing that some sort of terrorist attack was to happen. It is clear under both US and international law that such
individuals and organizations can be held accountable for those acts. Imagine a corporation that sold airplanes to the September 11th attackers
knowing that they would be used for such a purpose -- such a corporation would clearly be partially liable for those attacks, assuming one
could show that they had knowledge of the use to which their airplanes would
be put.
Second, the theory of this case is not your product was used in a way that
hurt someone. It is that you provided a product to someone that you knew was using that product to harm others; that you worked with that
customer to alter your product to make it better suited for harming others; and that you continued to provide such assistance even after it was
brought to your attention that your products were used to commit such harm. A similar case has just been brought against a Dutch chemical
manufacturer who provided chemicals to Saddam Hussein's
Iraq
that were then used to murder innocent Iraqis in Halabja. His defense
was that while he provided the chemicals he did not know what they would be used for. While one might hesitate at holding someone accountable for
acts they did not anticipate or could not foresee (although I can think of some good arguments why one might still hold such an individual
accountable for such sales), the claim by the Corries is that Caterpillar knew that their specially designed armored bulldozers were being
used to harm innocent civilians in violation of the laws of armed conflict and
international human rights law. (On the Dutch prosecution, see the
following BBC story:
http://news.bbc.co.uk/1/hi/world/middle_east/4360137.stm
Finally, you say that the Corries should sue the state of
Israel
. As a political and moral matter I agree with you. Unfortunately
the law does not. It is a sad reality of
US
law that there are only a narrow number of circumstances that allow a suit to
be brought against a foreign sovereign state. None of those
circumstances exist here. So the Corries and others should exert
political and moral pressure on the Israeli government, but they cannot exert
legal pressure against them. They can bring legal actions against others
who were involved in the death of Rachel and other innocent civilians in the
occupied territories. That is what they are doing. If as a result
of this lawsuit corporations like Caterpillar stop providing their products to
individuals who they know use them to harm other people, that would be a great
victory. If I lend you my car, knowing that you plan to use it to hit
someone against whom you have some dispute, I can be held liable as an
accomplice in the harm you created. That is the simple principle the
Corries would like to apply here.
I would be happy to discuss this further with you, either by e-mail, phone, or
in person.
Thanks again for being a responsible and engaged public citizen through your
column and the other work that you do, and for taking the time to read this
e-mail.
All the best,
Ron
--
Ronald C. Slye
Associate Professor
Director, International and Comparative Law Programs
Seattle
University
School
of Law
901 12th Avenue
, Sullivan Hall
P.O. Box
222000
Seattle
,
WA
98122-1090