Opening arguments in Bowoto v. Chevron began early Tuesday morning in federal district court in San Francisco, and it became clear within the first few minutes that company lawyers are worlds apart from Mr. Bowoto and his co-plaintiffs on almost every important factual element of the case.
Leaving Judge Illston's courtroom, I was ready to write up a blow-by-blow account of who said what, but the SF Chronicle had already summarized the day's arguments in a great article, and the facts in dispute are relatively straightforward. Were the protesters who occupied Chevron's oil platform unarmed? Did Nigerian military personnel shoot first and ask questions later? These are questions the jury will answer after hearing testimony from both sides over the coming weeks.
Instead, I thought I'd reflect a bit upon what I believe to be the most important legal question at issue in this case, one whose resolution will likely have a big impact on the ability of plaintiffs to win human rights lawsuits in the future.
The primary legal battle being fought here - and part of the reason so many scholars and activists around the world are watching -- has to do with the uncertain standards used to determine so-called aiding and abetting liability for corporations in human rights cases.
Among other defenses, Chevron insists that when Larry Bowoto and other protestors posed a threat to company workers on an offshore oil platform, they did the right thing by calling in the Navy for backup. Payments to military personnel notwithstanding, Chevron says it shouldn't be held liable for the killings and torture that soldiers carried out on its behalf because it never intended for anyone to get hurt. Lead defense counsel Bob Mittelstaedt began his opening argument with a strong statement that set the stage for this line of reasoning. "This was not a peaceful protest," he said. "It was an illegal invasion." To Chevron, the case boils down to the simple question of whether a company has the right to "call the police" when its workers are endangered.
Bowoto and his co-plaintiffs see things differently. They argue that Chevron "knowingly provid[ed] substantial assistance and/or encouragement to the military and/or police that perpetrated the attacks," and that such assistance is enough to establish liability whether or not the company's intent was for the protesters to be shot. In their complaint, the plaintiffs allege that Chevron "is liable for said conduct in that it requested, paid, participated in, confirmed, ratified, and/or conspired with the Nigerian military and/or police." Essentially, this argument boils down to the following: if you pay a hitman and drive him to the scene of a murder, you can't claim you didn't know he was going to kill someone just because you didn't absolutely intend for him to do so.
The question of what standard of knowledge applies to aiding and abetting liability is entirely uncontroversial in domestic criminal law. The problem here, of course, is that the plaintiffs have brought their claims under the Alien Tort Statute, an obscure law dating back to 1789 that allows foreign nationals to sue for torts committed "in violation of the law of nations or a treaty," in other words, for torts that violate international law.
The Supreme Court didn't reach the aiding and abetting issue when it decided an important ATS case called Sosa v. Alvarez-Machain in 2004, and just this year it declined to hear a case about corporate complicity in the South African apartheid regime. In that case, it took the unusual step of upholding a lower court's ruling because financial and personal conflicts of interest among four of the justices kept the Court from reaching a quorum.
In the absence of guidance from the Supreme Court, federal judges have little to go by in determining which standard applies. The legal community itself is divided on the question, with wildly divergent and conflicting ideas about how to decide whether and when a corporation is liable for the illegal acts of a third party. John Bellinger, Legal Advisor at the State Department, recently lamented the fact that the apartheid appeal wasn't granted and reiterated his position that U.S. courts shouldn't even be hearing cases such as Bowoto. Many scholars, however, point out that under international law, which governs cases brought under the ATS, the standard for aiding and abetting liability encompasses mere knowledge, and not just the more stringent requirement of intent, as Chevron wants to argue.
Since the state of the law is so unsettled on this point, the decision in Bowoto is likely to have a big impact on the way future human rights lawsuits are litigated. Chevron knows this, of course, which is why careful observers of this case should pay extra-close attention when its lawyers use phrases like "didn't intend" or "couldn't have known" to describe the company's involvement in the Nigerian military's brutal attacks on the plaintiffs. Beyond the immediate goal of avoiding liability for these despicable acts, Chevron is pursuing a larger strategy as well, one that would lead to keeping cases like this one out of court, once and for all.
Sometimes, it seems, it turns out that law is war by other means.