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Alien tort claims act.


Dole Food Company, Inc. entered into an agreement with Societe d' Etat pour le Developpement de la Production des Fruitieres et Legumes (Sodefel), an entity of the Ivory Coast government. It allegedly called for Sodefel, which owned and operated the plantations, to grow fruit according to Dole Food's specifications; these included the use of DBCP produced by Dow Chemical Company, Shell Oil Company or AMVAC Chemical Corporation (collectively Defendants).

Akebo Abagninin, and other African nationals who have worked on Ivory Coast plantations (Plaintiffs) sued the Defendants in a California federal court. Plaintiffs allege that exposure to DBCP caused male sterility and low sperm counts and that Defendant AMVAC had been aware of these risks since the 1950s. The Plaintiffs' alleged the Defendants' commission of genocide and Crimes against Humanity under the Alien Tort Claims Act (ATCA), 28 U.S.C. [section] 1350.2. Plaintiffs' also claimed racial discrimination and unlawful distribution of pesticides.

Defendant Dow Chemical, joined by AMVAC, moved for judgment on the pleadings. The district court then dismissed the Plaintiffs' claims for genocide and unlawful distribution of pesticides for failing to allege a violation of applicable norms of international law. The court determined that genocide required a specific intent to destroy a particular racial or other identifiable group of victims. The court rejected Plaintiffs' argument that the Rome Statute of the International Criminal Court required only knowledge of the effects of DBCP, because the statute did not constitute a norm of international law under ATCA. The district court dismissed the remaining claims for failure to allege a State or organizational policy to injure civilians.

Plaintiffs next filed an amended complaint alleging Crimes against Humanity and racial discrimination under the ATCA. Dow Chemical joined by AMVAC moved to dismiss. The district court found that Plaintiffs had failed to sufficiently allege a State or organizational policy to sterilize Plaintiffs and dismissed the case with prejudice.

When Plaintiffs appealed these rulings to the Ninth Circuit, it affirms. The Court finds that Plaintiffs failed to sufficiently allege violations of applicable norms of international law, either with regard to [1] the specific intent necessary to sustain a claim of genocide or [2] the presence of a State or organizational policy necessary to state a claim of Crimes against Humanity.

The Court explains that all claims under the ATCA must be "committed in violation of the law of nations or a treaty of the United States." It construes the phrase "law of nations" narrowly to include only those "norms of international character accepted by the civilized world." The Court, however, does decline to limit such claims to universal violations of international law, such as piracy. The Court recognizes the need to avoid creating new violations of international law and the need to consider the practical consequences of making such claims generally available.

As to the Plaintiffs' genocide claim, the Circuit Court focuses its analysis on the international norms issue. The U.S. has not ratified the Rome Statute that the Plaintiffs identify as lowering the standard for genocide to mere knowledge that its actions would have a genocidal effect. This precludes any jurisdictional basis under the "treaty" language of the ATCA.

The Court also determines that the Rome Statute lacks the status of a "norm of international character" and could not therefore provide the basis for a new standard of liability on the genocide claim. While the Court recognizes that many nations have ratified the new standard, the court is not convinced that the standard has reached the level of definiteness and acceptance contemplated by the ATCA. Therefore, absent an allegation of specific intent to destroy an identifiable group of people, it was proper to dismiss the genocide claim.

As to the claims of Crimes against Humanity, the Circuit Court agrees with the district court that neither AMVAC, nor the governmental entity, Sodefel, had violated a norm of international law, neither one had acted pursuant to a "State or organizational policy" to attack civilians.

In upholding the dismissal of the ATCA claim for Crimes against Humanity against AMVAC, the Court rejects the Plaintiffs' claims that AMVAC, as a business organization, used DBCP under an "organizational policy" to injure or kill civilians. The Court does recognize some modification of the ATCA requirements to include certain non-state actors. The Court does not agree with Plaintiffs, however, that international law has relaxed the requirement to the extent of including a business organization like AMVAC.

"The traditional conception regarding crimes against humanity was that a policy must be present and must be that of a State, as was the case in Nazi Germany. [Cite]. This conception was expanded to include non-State entities which, although not a part of the legitimate government, have de facto control over a defined territory [...] De facto control thus requires control analogous to that of a State or government, such as erecting checkpoints on main roads, examples of exercising command and control, developing civilian structures, and holding a substantial percentage of territory. [Cite]:" [Slip Op. 15]

As to the ATCA claim for Crimes against Humanity against Sodefel, the Circuit Court does not find that Sodefel acted pursuant to a State or organizational policy as defined by customary international law. Although Sodefel is an agency of the Ivory Coast government, its actions fell short of satisfying the "state action" requirement. The simple charge of buying DBCP for use on plantations failed to allege a state or organizational policy to "sterilize the plantation workers," that would support a claim for Crimes against Humanity.

CITATION: Abagninin v. AMVAC Chemical Corporation, 2008 WL 4330544; No. 07-56326 (9th Cir., 2008).
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Publication:International Law Update
Date:Aug 1, 2008
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