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From denial to undeniability:
Unocal and atrocities in Burma

News/Press on the recent decision on Doe v. Unocal.
The Nation (Sept. 28, 2000)
Irrawaddy News Magazine (Sept. 2000 Issue)

The following appeared in The Nation, one of the daily English newspapers in Thailand on September 28, 2000

From denial to undeniability: Unocal and atrocities in Burma

*Lawyers for victims of Burmese brutality during the building of the Yadana pipeline are confident that a lawsuit against Unocal will prevail, writes Jed Greer*

For the past four years, lawyers working on behalf of Burmese victims of human rights violations have sought to hold the American petroleum corporation Unocal accountable in a landmark lawsuit, John Doe I, et al. v. Unocal Corp., et al.

On August 31, the presiding judge found that Unocal did in fact know of and benefit from atrocities committed by Burma's army in connection with the building of the Yadana gas pipeline, a joint venture project in which Unocal was involved. The judge also ruled, however, that Unocal cannot be held liable and dismissed the case. People unfamiliar with the US judicial system may be surprised by this perplexing circumstance.

Thus it is important to be clear about what this decision means and what it does not mean.

First, what the decision means. In his opinion the judge completely validates the plaintiffs' factual allegations. Unocal can no longer deny that egregious abuses occurred on its project. Indeed, the judge observed, "[t]he violence perpetrated against Plaintiffs is well documented . . . and need not be recited in detail[.]"

In addition, the judge noted that the plaintiffs had presented evidence "demonstrating . . . that the [pipeline] project hired the military to provide security for the project, a military that forced villagers to work and entire villages to relocate for the benefit of the project; that the military, while forcing villagers to work and relocate, committed numerous acts of violence; and that Unocal knew or should have known that the military did commit, was committing, and would continue to commit these tortious acts." Further, he wrote, "the evidence does suggest that Unocal knew that forced labour was being used and that [Unocal and Total, another joint venture partner in the Yadana project] benefited from the practice[.]"

Such an acknowledgement is a major victory for the plaintiffs. In an interview following the decision, Unocal's spokesperson claimed that the company did not dispute its knowledge of the human rights violations. This statement is at odds with previous public relations efforts. Unocal has long denied that there is any evidence to support this suit.

Recent documentation of these atrocities -- murder, rape, torture, forced labour and relocation -- came in May of this year when EarthRights International released the most comprehensive report to date on the subject.

Now, what the decision does not mean. It doesn't mean that the case is over. The plaintiffs' lawyers are appealing the decision, a process that will take at least a year. But given the unprecedented nature of this lawsuit, it was always likely that it would go to an appeals court.

Nor does this decision mean that Unocal never can or will be found liable. The appeals court will review the legal standards the residing judge used in dismissing the case. Only if the appeals court determines that there is no way whatsoever for the plaintiffs to make their legal claims will it agree with the presiding judge. That is a very favourable position from the plaintiffs' standpoint, and plaintiffs' lawyers are confident that the appeals court will reverse the judge's decision and allow the case to go to trial.

That is as it should be. Beyond the legal issues involved, Doe v. Unocal is an early test case for determining the boundaries of corporate responsibility in the age of globalization.

Proponents of globalisation tout the many benefits of an increasingly integrated global economy; rarely are we given a picture of globalisation's downside, its flesh-and-blood victims. How the US court system ultimately handles the case is no less a moral than legal question.

Jed Greer works with EarthRights International (ERI). ERI is co-counsel in Doe v. Unocal.

The following article appeard on the Irrawaddy News Magazine (Vol.8, No.9, September 2000).

Totally Undeniable

While Judge Ronald Lew has dismissed the case charging Unocal with liability for human rights abuses, attorneys of the plaintiffs are encouraged by prospects for a successful appeal.

by Jed Greer and Tyler Giannini/EarthRights International

The Yadana gas pipeline project in Burma has become infamous during the past decade. The project, led by an international consortium that includes Unocal (United States) and Total (France), has caused widespread human rights abuses and environmental destruction. Despite consistent company denials of abuses on the project, a staggering amount of evidence now exists that the project resulted in forced labor and other crimes against humanity by the Burmese army, which is protecting the pipeline. The abuses surrounding the Yadana project even made their way into US federal court in Los Angeles in 1996. In the case, John Doe I, et al. v. Unocal Corp., et al., Burmese plaintiffs have sought to hold Unocal legally responsible for its involvement in the project. In 1997, the case made legal history when it became the first in which a judge ruled that US courts have the authority to adjudicate claims of violations of international human rights law against corporations. Several years of factual investigations by the parties ensued.

On August 31, 2000, the presiding judge in the case, Ronald S.W. Lew, ruled on the evidence before him that although Unocal knew about and benefited from a host of atrocities, the company cannot be held liable and dismissed the case. However, the opinion delivered an unexpected gift to the plaintiffs. Besides completely validating the plaintiffs' factual allegations, the opinion reveals a considerable amount of information that until now has been withheld from the public under seal of the court. While attorneys for the Burmese plaintiffs are disappointed by the dismissal, they are appealing the decision and, for reasons discussed below, are confident that the appeals court will reverse the courtfs dismissal and permit the case to go to trial.

What the decision means

Unocal has long denied the plaintiffs' allegations of egregious human rights abuses, including murder, torture, rape, forced labor, and forced relocation. On its website, where the company maintains that the case has "no basis...in fact," and elsewhere, Unocal has consistently turned a blind eye to overwhelming evidence showing widespread, Yadana-related abuses. But after Judge Lewfs opinion, Unocal can never again credibly deny that it didnft know. Never again can Roger Breach, Unocal's Chief Executive Officer, say (as he did at the company's recent shareholder's meeting), "There is no forced labor on the pipeline project. Period."

According to Judge Lew: "Plaintiffs present evidence demonstrating that before joining the [Yadana] Project, Unocal knew that the military had a record of committing human rights abuses; that the Project hired the military to provide security for the Project, a military that forced villagers to work and entire villages to relocate for the benefit of the Project; that the military, while forcing villagers to relocate, committed numerous acts of violence; and that Unocal knew or should have known that the military did commit, was committing, and would continue to commit these tortious acts."

Elsewhere, Judge Lew noted, "the evidence does suggest that Unocal knew that forced labor was being utilized and that [Unocal and Total, a co-venturer in the Yadana project] benefited from the practice."

What the decision does not mean

This opinion does not mean that the lawsuit is over, and it does not mean that Unocal never can or will be found liable. The plaintiffs' lawyers are appealing the decision, a process that will take at least a year. Given the unprecedented nature of this lawsuit, it was always likely that this case would be appealed by one side or the other. While the plaintiffs, who have risked their lives to bring this case, must wait longer for justice, the narrow legal ruling that dismissed the case gives their lawyers optimism for appeal. The court dismissed this case because it concluded that Unocal did not directly "control" or "conspire" with Burma's military to commit the atrocities. The court ruled that knowledge and benefit from the abuses were not sufficient to hold Unocal liable, and this legal finding creates an extremely high legal standard that the appeals court will review. Plaintiffs' attorneys will argue that the lower court used the wrong standard in determining Unocal's liability, and they are confident that the appeals court will reverse the lower courtfs decision and permit the case to go to trial.

New information disclosed in the opinion

To support his conclusion that Unocal knew about and benefited from human rights abuses, Judge Lew included in his opinion much information that until now has been publicly unavailable?hidden within sealed documents until the release of this opinion. For example, Unocal had forewarning about the horrific practices of Burma's army at least as early as May 1992, when a report by the company's risk consultant advised Unocal about the habitual use of forced labor, military attacks on civilians, and a "terrorized" local community in the prospective pipeline region. Apparently untroubled by such disclosures, Unocal put in a contract bid with Burma's state-owned energy company (Myanma Oil and Gas Enterprise, or MOGE) for a license to produce and sell natural gas from the Andaman Sea. Total eventually won that contract, but Unocal joined the project as a joint venturer in late 1992.

According to Judge Lew, "The violence perpetrated against Plaintiffs is well documented in the deposition testimony filed under seal with the Court and need not be recited in detail in this Order." For readers interested in more 'detail,' EarthRights International's 'Total Denial Continues: Earth Rights Abuses Along the Yadana and Yetagun Pipelines in Burma' (May 2000) is the most comprehensive report to date on Yadana-related human rights violations. This report provides extensive documentation that supplements the brief, but crucial, statements Judge Lew made in his opinion.

Under the contracts in which Unocal bought its share, it was agreed that "MOGE shall assist and expedite...execution of the Work Programme by providing...security protection and rights of way and easements as may be requested[.]" From the outset, then, Unocal had a contractual relationship whereby Burma's government would secure the pipeline area. As an internal Unocal document noted in 1995, "[a]ccording to our contract, the Government of Myanmar is responsible for protecting the pipeline. There is military protection for the pipeline and, when we have work to do along the pipeline that requires security, then military people will, as a matter of course, be nearby."

Even by 1994, it was evident that a security "corridor" was being created exclusively for the pipeline. Internal Unocal documents from a meeting between Unocal and Total officials observed that there were "rebels" and migrating refugees in Burma's Tenasserim region, where the pipeline was being built. "The Myanmar Army claims that despite these people," the documents noted, "they have an area 'secured' only along the proposed pipeline route. ...[T]he Burmese Army claims to have 'many battalions' in the area, based in Kaleinaung, with up to 200 troops in the mountain jungle area near the border along the pipeline route." A 1995 Unocal memorandum indicated in greater detail the extent of the army's pipeline security arrangements: "Four battalions of 600 men each will protect the corridor. Col Zaw Tun has a total of 10 battalions under command and is most confident about [the military's] ability to protect the... pipeline route. Fifty soldiers will be assigned to guard each [company] survey team."

The use of the Burmese military to provide pipeline security made it apparent to informed sources that the project would result in forced labor and other violent abuses. In 1995, for example, a consultant wrote this striking passage to Unocal:

"[M]y conclusion is that egregious human rights violations have occurred, and are occurring now, in southern Burma. The most common are forced relocation without compensation of families from land near/along the pipeline route; forced labor to work on infrastructure projects supporting the pipeline (the SLORC calls this government service in lieu of payment of taxes); and imprisonment and/or execution by the army of those opposing such actions. Unocal, by seeming to have accepted SLORC's version of events, appears at best naive and at worst a willing partner in the situation."

In 1996, Unocal also was told by Total about the abuses. Total wrote to Unocal that "the troops assigned to the protection of our operations used forced labor to build their camps and to carry their equipment[.]" "[W]hen we had knowledge of such occurrences," Total said, "the workers have been compensated." (Total's concession notwithstanding, payment is irrelevant to the definition of forced labor as a human rights violation. That definition turns instead on how the labor is procured.) And from the highest level of Unocal's hierarchy comes acknowledgement of this use of forced labor. "I am sure that the military uses conscripted labor for portage," admitted Unocal's former president John Imle.

For the plaintiffs in Doe v. Unocal, the legal struggle for justice will take more time. Meanwhile, as Judge Lew's opinion authoritatively confirms, there can no longer be any doubt that Unocal's involvement in Burma is morally reprehensible. The victims' voices have finally been heard, and Unocal is forever shamed.

Jed Greer works with EarthRights Internationl (ERI) and is co-author of "Total Denial Continues." Tyler Giannini is a director and a founder of ERI and also co-author of "Total Denial Continues." ERI is co-counsel in Doe v. Unocal.




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