THE DONBAS CONFLICT: RUSSIA’S CULPABILITY UNDER INTERNATIONAL LAW

During the ongoing armed conflict between Ukrainian government forces and pro-Russian separatist insurgents in the Donbas region of Ukraine (the Donetsk and Lugansk Oblasts) that began in April 2014, numerous human rights violations and violations of international law have been noted on the part of the separatists affiliated with the so-called Donetsk People’s Republic (DPR) and Lugansk People’s Republic (LPR). In a report from the UN Human Rights Monitoring Mission, Ivan Šimonović, UN Assistant Secretary General for Human Rights, wrote about targeted killings, torture, abduction, illegal detention, and intimidation of election officials in the self-proclaimed pro-Russian republics, and called for urgent action to prevent a Balkans-style war. He also warned of a humanitarian crisis due to a failure of social services in the region, and an exodus of people from affected areas. The UN also reported threats against, attacks on, and abductions of journalists and international observers, as well as the beatings and attacks on supporters of Ukrainian unity.

A similar report by Human Rights Watch said: “Anti-Kiev forces in eastern Ukraine are abducting, attacking, and harassing people they suspect of supporting the Ukrainian government or consider undesirable…anti-Kiev insurgents are using beatings and kidnappings to send the message that anyone who doesn’t support them had better shut up or leave”.

The use of abductions as a method to maintain political power and to terrorize the local population into submission appears to have been one of the preferred abusive techniques utilized by the pro-Russian separatist leadership. In early July, 2014, Amnesty International published a report based upon evidence of beatings, torture, and abduction of activists, protesters and journalists by insurgents in the Donbas region. It said that “while most abductions appear to have a ‘political’ motivation’, there is clear evidence that abduction and torture is being used by armed groups to exert fear and control over local populations”. The report also said that some people had been abducted for ransom. The report summarized its finding by stating that “the bulk of the abductions are being perpetrated by armed separatists, with the victims often subjected to stomach-turning beatings and torture.”

A report by the United Nations OHCHR that was released on July 28, 2014 said that insurgent groups continued “to abduct, detain, torture and execute people kept as hostages in order to intimidate and to exercise their power over the population in raw and brutal ways”. The report documents that at least 812 people have been abducted by the insurgents since mid-April, and said that “the majority are ordinary citizens, including teachers, journalists, members of the clergy and students”.

A statement released on August 22, 2014 by the Lithuanian foreign minister said that the Lithuanian honorary consul in Luhansk, Mykola Zelenec, was abducted by pro-Russian insurgents and killed.

A report by Human Rights Watch said that the insurgents had been “running amok…taking, beating and torturing hostages, as well as wantonly threatening and beating people who are pro-Kiev”. It also said that the insurgents had destroyed medical equipment, threatened medical staff, and occupied hospitals. A member of Human Rights Watch witnessed the exhumation of a “mass grave” in Sloviansk that was uncovered after separatists retreated from the city.

Captured Ukrainian soldiers have been subjected to public humiliation and other abuses in violation of international law. Insurgents with bayonet-equipped automatic rifles in the city of Donetsk paraded captured Ukrainian soldiers through the streets on August 24, 2014, the Independence Day of Ukraine. During the parade, Russian nationalistic songs were played from loudspeakers, and members of the crowd jeered at the prisoners with epithets like “fascist”. Street cleaning machines followed the protesters, “cleansing” the ground they were paraded on. Human Rights Watch said that this was in clear violation of the common article 3 of the Geneva Conventions. The article forbids “outrages upon personal dignity, in particular, humiliating and degrading treatment”. They further said that the parade “may be considered a war crime.” On the following day, the insurgents tied a woman accused of being a spy to a lamppost. They wrapped her in a Ukrainian flag, and had passers-by spit her, slap her, and throw tomatoes at her.

In October 2015, the DPR and LPR banned non-governmental organizations such as Doctors Without Borders and World Food Program from the territory that they control. A report released on March 3, 2016 by the Office of the United Nations High Commissioner for Human Rights (OHCHR) said that people that lived in separatist-controlled areas were experiencing “complete absence of rule of law, reports of arbitrary detention, torture and incommunicado detention, and no access to real redress mechanisms”.

According to the United Nations Children’s Fund (UNICEF), “The results of a psychosocial assessment of children in Donetsk Oblast in Eastern Ukraine are deeply troubling … and indicate that about half of all children aged 7-18 have been directly exposed to adverse or threatening events during the current crisis.” OSCE monitors spoke to refugees from Donetsk city in Zaporizhia. They said that men were “often not allowed” to leave the city, but were instead “forcibly enrolled in ‘armed forces’ of the so-called ‘Donetsk People’s Republic’ or obliged to dig trenches”.

By June 2015, the conflict had created 1.3 million internally displaced people (IDPs). According to the OHCHR, this number had grown to 1.6 million people by early March 2016.

As the shaky ceasefire implemented by the Minsk Protocol became increasingly untenable in early November 2014, it was reported that the number of people that had fled insurgent-held areas of Donbas had reached one and a half million. Those forced to stay in the region were largely elderly, destitute, or otherwise unable to flee. Schools had been abandoned, and many had been converted into weapons depots or unlawfully used for other military purposes, as roughly half of the pre-war population of school-age children had left Donbas.

A map of human rights violations committed by the separatists called the “Map of Death,” was published by the Security Service of Ukraine (SBU) in October 2014. The reported violations included detention camps and mass graves. Subsequently, on October 15, 2014, the SBU opened a case on “crimes against humanity” perpetrated by insurgent forces.

Amnesty International reported evidence  of summary killings of Ukrainian soldiers on April 9, 2015. Having reviewed video footage, it determined that at least four Ukrainian soldiers had been shot dead “execution style”. The AI deputy director for Europe and Central Asia said that “the new evidence of these summary killings confirms what we have suspected for a long time”. AI also said that a recording released by Kyiv Post of a man, allegedly separatist leader Arseny Pavlov, claiming to have killed fifteen Ukrainian prisoners of war was a “chilling confession”, and that it highlighted “the urgent need for an independent investigation into this and all other allegations of abuses”.

Russia and its leadership bear substantial responsibility for the War Crimes and human rights abuses committed by the insurgent forces in Donbas, since the insurgents are basically nothing more than proxies for Russia, in its attempt to carve off a large chunk of Ukraine close to its borders. Since Russia aided and abetted the violations of international law committed by the insurgent forces, it may be held legally responsible in U.S. courts and in various international courts for the loss of human life and destruction of property caused by the insurgent forces. Plaintiffs in such a case could be either Ukrainian or other non-U.S. citizens, who could utilize the Alien Tort Statute (28 U.S. 1350), or they could be U.S. citizens or refugees currently within the United States who could seek jurisdiction in the U.S. courts under federal common law, which incorporates customary international law.

The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “killercoke.org” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.