Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited

Court	United States Court Of Appeals For The Ninth Circuit, United States
Case number	02-56256/02-56390
Decision title	Appeal from the United States District Court for the Central District of California
Decision date	25 October 2011
Parties	Alexis Holyweek Sarei Paul E. Nerau Thomas Tamuasi Phillip Miriori Gregory Kopa Methodius Nesiko Aloysius Moses Raphael Niniku Gabriel Tareasi Linus Takinu Leo Wuis Michael Akope Benedict Pisi Thomas Kobuko Norman Mouvo John Osani Ben Korus Namira Kawona Joanne Bosco John Pigolo Magdelene Pigolo Rio Tinto plc Rio Tinto Limited
Categories	Crimes against humanity, Human rights violations, War crimes
Keywords	crimes against humanity, war crimes, corporate responsibility, environmental harm, racial discrimination, universal jurisdiction
Links	Appeal from the United States District Court for the Central District of California

Summary

After the civil war in Papua New Guinea, which led to Bougainville obtaining a more autonomous position, several inhabitants of that island sued the mining company Rio Tinto, basically for its role in the war and the process leading up to it. The plaintiffs claimed that Rio Tinto’s mining activities had harmed their health and the environment, and that they had helped the Papua New Guinea government in, among other things, setting up a blockade with disastrous results for the population. In this instance, the District Court had to rule whether referring the plaintiffs back to the Papua New Guinean legal system should be considered. The District Court held that this would be inappropriate with regard to the plaintiffs’ claims of war crimes, crimes against humanity and racial discrimination, as these claims are of ‘universal concern’.

With the case back at the Court of Appeals, the question to be determined was the scope of the jurisdiction of the ATCA with regard to genocide, war crimes, crimes against humanity arising from a blockade and racial discrimination. The Court held that genocide and war crimes fall within the scope of the ATCA. These norms, according to the Court, are specific, universal and obligatory accepted and extend to corporations. However, the crimes against humanity arising from a blockade and the racial discrimination claims are not and, therefore, the case was remanded to the District Court for further proceedings on the claims of genocide and war crimes.

Procedural history

The plaintiffs, current and former residents of the island of Bougainville in Papua New Guinea (PNG), filed a putative class action against the defendants under the Alien Tort Claims Act (ATCA), 28 U.S.C. para. 1350. The plaintiffs alleged that Rio Tinto’s mining operations on Bougainville ‘destroyed the island’s environment, harmed the health of its people and incited a ten-year civil war, during which thousands of civilians died or were injured’. Therefore, the plaintiffs alleged, defendants were guilty of war crimes and crimes against humanity, as well as racial discrimination and environmental harm that violates international law.

The US Court of Appeals overturned the District Court’s dismissal of the case on 7 August 2006, a reversal which was confirmed by a three-judge panel of the US Court of Appeals on 12 April 2007. On 16 December 2008, the Court of Appeals referred the case back to the District Court, after having established a framework for determining whether the plaintiffs should first exhaust local remedies before turning to a US court for relief. It stated that the District Court should apply this framework to the underlying case. The District Court held that it would not be appropriate to apply this framework to crimes against humanity, war crimes and racial discrimination, as these matters are of universal importance.

Related developments

The case was supposed to return to the District Court for further proceedings on the claims. However, the Appeals Court ruled on 28 June 2013 that the case should be dismissed, citing the recent Supreme Court ruling in the Kiobel v. Shell case.

Legally relevant facts

The Rio Tinto Group, of which Rio Tinto plc and Rio Tinto Limited are part, has operated on Bougainville, Papua New Guinea (PNG), since the 1960s, in close corporation with the government. The plaintiffs claim that Rio Tinto forced villagers of their lands, destroyed huge portions of the rain forest and polluted the environment. Also, they allege that islanders who worked for Rio Tinto, all of whom were black, were paid lower wagers than the white workers recruited off island. They also claim that when the inhabitants of Bougainville forcefully protested against the mining operations, the company warned the PNG government that Rio Tinto might close the mine if the protests were to continue. According to the plaintiffs, Rio Tinto knew that this would lead the government to violently repress the uprising, which it started to do in early 1989. Plaintiffs contend that the PNG army attack on 14 February 1990 led to the ‘struggle for independence’, that continued until 1999. During the war, according to the plaintiffs, Rio Tinto committed human rights abuses and war crimes while, for example, conspiring with and encouraging the PNG government to impose a blockade.

Core legal questions

The Court of Appeals (en banc) had to determine whether the remaining claims of the plaintiffs (genocide, war crimes and crimes against humanity) fell within the scope of jurisdiction as provided for in the Alien Tort Claims Act (ATCA). In order to determine this, several arguments made by Rio Tinto had to be addressed: these arguments include contentions that the Court lacked jurisdiction under the ATCA because all of these claims arise extraterritorially, are

claims against corporations, or constitute claims of aiding and

abetting liability outside the scope of international law. The Court also had to assess Rio Tinto’s alternative contention that the claims in this suite were nonjusticiable on the grounds that they require prudential exhaustion (meaning that plaintiffs should turn to the judiciary in Papua New Guinea first), constitute political questions, are barred by principles of international comity, or invalidate acts of state.

Specific legal rules and provisions

US Alien Tort Claims Act.

Court's holding and analysis

The Court held that Congress created the ATCA with overseas conduct in mind and that, therefore, the fact that conduct occurred in Papua New Guinea did not create a problem with regard to jurisdiction under the ATCA (pp.19338-19339). Neither does the ATCA completely bar corporate liability or aiding and abetting (pp. 19340-19341). Also, the District Court did not abuse its discretion when it decided that it would not be appropriate to apply the exhaustion principle to matters of genocide, war crimes and racial discrimination (p. 19353). The Court did not consider this case nonjusticiable, among other things because this case involves the alleged breach of jus cogens norms, from which no derogation is possible (pp. 19356-19358).

Turning to the specific claims that the District Court determined were within the jurisdiction of the ATCA, the Court held that genocide and war crimes fall within the scope of the ATCA. These norms, according to the Court, are specific, universal and obligatory accepted and extend to corporations (pp. 19359, 19361 and 19370-19371). However, the crimes against humanity arising from a blockade and the racial discrimination claims are not (pp.19377 and 19380). Therefore, the case was remanded to the District Court for further proceedings on the claims of genocide and war crimes.