Ninth Circuit allows Papua New Guineans to sue mining company for genocide

The US Court of Appeals for the Ninth Circuit on Oct. 25 reinstated a lawsuit by Papua New Guinea citizens against mining company Rio Tinto on claims of genocide and war crimes. Allowing the suit under the Alien Tort Statute (ATS), the court ruled that it may proceed due to the Australian mining company's substantial operations in the US. Rejecting several attempts by the company to block the suit, it also ruled that a corporation can be held liable for genocide:

Corporations are recognized legal entities, yet, according to the [International Court of Justice], even amorphous "groups" may be guilty of genocide. The ICJ's analysis is instructive, in particular because the Supreme Court has noted that "[i]n interpreting our treaty obligations, we ... consider the views of the ICJ itself, 'giving respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret the treaty.'" The ICJ concluded that genocide is a violation of international law whether committed by an individual, an amorphous group, or a state, consistent with all other sources of international law recognizing the universality of the prohibition of genocide.

The initial complaint alleges that Rio Tinto, while effectively controlling the government of Papua New Guinea, sought to eliminate the residents of Bougainville Island after they took arms against the company in response to years of environmental and human rights abuses. The complaint also alleged charges of institutionalized racism: "Rio Tinto oversaw this mass infliction of death and suffering as a part of its pattern of behavior on account of its worldwide view that members of non-white races were 'expendable.'" The ruling notes that both the governments of Papua New Guinea and the US fully support the suit.

Beginning in 1975, Rio Tinto operated a mine in Panguna, Bougainville, which provided 20% of the Papua New Guinea government's wealth. However, Bougainvillean people contend that not only did their citizenry not benefit significantly from these profits, but that Rio Tinto engaged in a number of environmental and human rights abuses. This reportedly included segregating white and local workers, polluting the Jaba River to the point where birth defects became prevalent, and causing the extinction of at least one variety of local fauna. In response, the United Panguna Landowners Association was formed; a Bougainville Revolutionary Army revolted against the Panguna mine in 1988. This sparked off the Bougainville Revolution, Papua New Guinea's nine-year civil war that took 20,000 lives. Although the war ended in 1997 with a peace accord. In 2001, a Papua New Guinea opposition leader signed an affidavit asserting that Rio Tinto controlled the Papua New Guinea government during the war and provided substantial financial and military aid. (SBS Dateline, Australia, June 26)

From Jurist, Oct. 26. Used with permission.

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