Blog: Justice Watch
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February 2, 2022
(Editor’s Note: This article is the latest in a Just Security series on the Feb. 1, 2021 coup in Myanmar, which brought together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School).
From the Just Security website.
by Tyler Giannini, Justin Cole and Emily Ray
Today, Feb. 1, 2022, marks the one-year anniversary of the Myanmar military’s attempt to wrest political control of the country away from its elected officials. Not every military attempt to impose its will on a country is a generational moment, but this one was. The actions of the military (known as the Tatmadaw) last year sparked an unprecedented series of events that are still rippling across the nation. The resistance to the military’s attempt to take control started with the Civil Disobedience Movement (CDM), a mass movement led by youth and joined by workers who stayed home and consumers who boycotted military-owned businesses to protest the takeover. A movement on this scale has not been seen in a generation. Other developments over the past year are entirely unprecedented in Myanmar. This past year thus marks the end of one era and the beginning of a new one. The shape of that new era is still being determined by the people of Burma, who are writing their next chapter with each passing day.
To understand the importance of Feb. 1, 2021 (“1221” or “2121,” depending on which date convention is used), we first must look back. For Burma followers, the start of the era proceeding 2021 can be traced to the 8888 Uprising (named for another significant date, Aug. 8, 1988, when that mobilization began), which saw a military crackdown against mass street protests across the country. The 8888 Uprising was the beginning of the end of the Ne Win era, a period of military rule which began decades earlier. Yet in the wake of 1988, the military dictatorship continued — first as the State Law and Order Restoration Council (SLORC), a name which aptly captured the mass human rights abuses perpetrated by this military junta, and then, with a 1997 rebrand, as the State Peace and Development Council. Despite these cosmetic tweaks, little else changed. The consolidation of power by Than Shwe as the main military strongman in the early 2000s only demonstrated the continued military dominance. Even after the 2008 constitution and three subsequent national elections, including 2010 which featured a boycott by the National League for Democracy (NLD), the military was ever present, and the hopes of a full transition to democracy and peace failed to materialize. (For a fuller discussion of the history of democracy movements in Myanmar, see here).
Yet this post-1988 era was never really defined by the military leader as it had been during Ne Win’s time. Instead, the 1988 to 2021 period was defined by its opposition leader. When history is written in the years to come, it will be known as the era of Aung San Suu Kyi. From her “non-violent struggle for democracy and human rights” while under house arrest and her leadership of the NLD as it earned landslide national victories in 1991, 2015, and 2020, to her silence on the ongoing persecution and coordinated campaigns of violence against the Muslim Rohingya minority, Aung San Suu Kyi shaped this era of Burma in a way no other figure did.Continue Reading…
September 30, 2012
Posted by Tyler Giannini and Susan Farbstein
Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around
The Supreme Court will open its new term on Monday. The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years. Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations. Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s secondtime hearing oral argument in the matter. This is a rarity; the last example was Citizen United, the major campaign finance case.
What are the issues?
Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law. The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s. The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute. But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.
February 23, 2012
Posted by Tyler Giannini and Susan Farbstein
NO CORPORATE EXEMPTION: SUPREME COURT TO HEAR MAJOR CORPORATE HUMAN RIGHTS CASE
February 22, 2012
Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability. The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s. The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.
The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law. In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review. Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach. Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.
Yesterday, the Plaintiffs filed their final brief before the oral argument. They noted the profound ramifications of the lower court’s holding:
The implications of the decision below are shocking. When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law. [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS. Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.
Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs. The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.” The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”
For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable. For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria. While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability. With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse. Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.
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