Lago Agrio: Doug Cassel on the ICC Complaint

Chevron advocate Doug Cassel gives his thoughts on the Lago Agrio plaintiffs’ new complaint to the ICC prosecutor. Doug’s piece is pretty strident. In fact, he seems to take the complaint so seriously that I wonder whether a post like this really gets what the plaintiffs are trying to do. Maybe the ICC complaint should not be read as a serious effort to initiate a prosecution, but rather as a political document or as a PR document.

I invited representatives of the plaintiffs to share their views of the merits of the ICC complaint here but have not heard back yet. Readers may, however, be interested in a piece by Kevin Jon Heller, who is sympathetic to the LAPs’ overall case, at Opinio Juris.

Lawyers for the Lago Agrio plaintiffs have now asked the International Criminal Court (“ICC”) to investigate Chevron executives. They accuse company execs of the supposed “crimes against humanity” of resisting enforcement of the judgment of Ecuadorian courts and of “maintaining” environmental contamination in Lago Agrio. Although plaintiffs’ legal theory is opaque, they appear to try to invent at least one new ICC crime—opposing enforcement of a court judgment—and possibly a second—refusing to concede liability which has not been established in credible judicial proceedings.

As such, their petition does not warrant so much as a preliminary inquiry. Among other fatal defects, it fails to allege criminal acts amounting to crimes against humanity, or to show the requisite criminal knowledge and intent. Moreover, it is not in the interests of justice.

At the outset, it is important to clarify what plaintiffs’ petition does not involve. It does not and cannot ask the ICC to investigate Chevron. The ICC has jurisdiction only over individuals, not corporations. While evolving legal standards may have a place in common law tort litigation against companies, inventing new offenses has no place in criminal charges against individuals. Thus the ICC’s “Elements of Crimes,” which guide the interpretation of its Statute, admonish that the definition of crimes against humanity “must be strictly construed”—not rewritten to suit a litigator’s wish list.

Plaintiffs’ ICC petition also does not, and cannot, bring a case for polluting the environment. Chevron has never operated in Ecuador. In 2001 Chevron effectively acquired Texaco. But Texaco ceased operating in Ecuador in 1992. The ICC has jurisdiction only over crimes committed after its treaty came into force in 2002. Neither Texaco nor Chevron operated in Lago Agrio after 2002.

Hence plaintiffs’ resort to creative drafting. They cannot ask the ICC to investigate Texaco’s alleged pollution. So they stretch to assert that Chevron executives committed crimes against humanity by “maintaining” the situation caused by Texaco’s alleged pollution.

No Criminal Act

Thus constrained, plaintiffs’ petition fails to allege any acts constituting crimes against humanity. Article 7 of the ICC Statute defines a “crime against humanity” as certain heinous acts “when committed as part of a widespread or systematic attack directed against any civilian population …”

What is an “attack”? Plaintiffs make much of the point that an attack need not be carried out by violent or military means. For example, the ICC statute defines apartheid as a crime against humanity.
But not every non-violent act or omission amounts to an attack. Here, the acts claimed by plaintiffs to amount to an attack are Chevron execs’ defending the company in the litigation and elsewhere from what they consider— rightly—to be fraudulent litigation and a fraudulent judgment. Exercising rights of self-defense against even a legitimate lawsuit—let alone a fraudulent one—is a legal right, not a criminal “attack.”

And if resisting the fraudulent Ecuadorian judgment were indeed an “attack,” then Chevron execs would not be the only ones in the dock. So, too, would be the international arbitrators who have repeatedly—and unanimously—ordered Ecuador not to enforce the judgment against Chevron. So, too, the United States federal judge who found the Ecuadorian trial and judgment to be fraudulent and accordingly enjoined its enforcement in the US. (See below.)

Even if Chevron execs’ legal defense could somehow be deemed an “attack,” that would still not suffice. In order to constitute a crime against humanity, an “attack” must be carried out by certain heinous acts that, in and of themselves, violate international law. Yet nowhere does the ICC Statute make defending oneself in a lawsuit or refusing to accede to enforcement of a judgment (even a legitimate judgment, let alone a fraudulent one) an international crime.

Cognizant of the need to allege actual crimes, plaintiffs’ petition claims that Chevron execs committed murder, extermination, deportation or forcible transfer, persecution, and “other inhumane acts.” But the only facts alleged to support these allegations are the refusal of Chevron execs to accept legal liability or to respect the fraudulent Ecuadorian judgments. Yet self-defense in litigation—far from amounting to murder or the other offenses—is a legal right under international law.

Knowledge and Intent

Even if plaintiffs had alleged criminal acts (they have not), that would still not suffice to show crimes against humanity. Under the ICC Statute, the acts must also be committed with criminal knowledge and intent. In addition, to constitute an “attack” on a civilian population, the perpetrator must act “with knowledge of the attack.”

None of these mental elements is satisfied by plaintiffs’ petition. Chevron execs had no reason to believe that their refusal to comply with the Ecuadorian judgment was criminal. On the contrary, they had every reason to believe that they were defending themselves from unlawful acts committed by the Lago Agrio plaintiffs’ lawyers.

The Chevron executives’ belief was (and is) reasonable. They commissioned and received reports by eminent environmental and public health experts, who consistently disavowed continuing adverse impacts in Lago Agrio resulting from Texaco’s operations two decades earlier. They also discovered private admissions by plaintiffs’ own environmental experts. A statement by one of plaintiffs’ consultants is illustrative of other such admissions: She was caught on videotape telling lead plaintiffs’ lawyer Steven Donziger that “all the reports are saying it’s [i.e., groundwater contamination] just at the pits and the stations and nothing has spread anywhere at all.”

Finally, Chevron execs were well aware of the repeated orders by the international arbitral tribunal, convened under the Ecuador-US Bilateral Investment Treaty, directing Ecuador not to execute the judgment against Chevron until the tribunal completes its proceedings (which remain pending). All these orders were issued by unanimous vote of the three arbitrators – including the arbitrator selected by Ecuador, a distinguished international lawyer and scholar. Were Chevron execs supposed to believe that their resistance to the Ecuadorian judgment was somehow criminal, in the face of repeated rulings by the arbitral tribunal that the judgment could not be enforced?

Chevron executives, then, reasonably relied on their own experts, on admissions by plaintiffs’ experts, and on repeated arbitral awards to believe—rightly—that their resistance to the Ecuadorian judgment was and is lawful.

Interests of Justice

Even where (unlike here) a crime within the jurisdiction of the ICC is properly alleged, Article 53 of the ICC Statute directs the Prosecutor, in deciding whether to open an investigation, to consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice.”

The interests of justice could hardly be served by investigating a litigant for refusing to comply with a fraudulent judgment. As found by Judge Lewis Kaplan of the United States District Court in New York this March, the Ecuadorian judgment was, in fact, fraudulent.

In response to Steven Donziger’s appeal from Judge Kaplan’s ruling, an amicus brief was filed by a group of eminent human rights and anti-corruption jurists. While disclaiming any knowledge of the facts as found by Judge Kaplan, or any view on the merits of the Ecuadorian litigation or of the appeal, they succinctly summarized Judge Kaplan’s findings as follows:

  • “Forged Reports of the Ecuadorian Plaintiff’s Expert: The Ecuadorian plaintiffs’ representatives affixed the signature of one of their American environmental experts to a report purporting to find pollution at two inspection sites. They then filed the report in the Ecuadorian action. The expert later testified, however, that he did not write the report and that, in fact, he had not found ‘that any site posed a health or environmental risk.’”
  • “Coerced a Judge to Appoint a ‘Global’ Expert: The Ecuadorian plaintiffs’ representatives coerced an Ecuadorian judge, by threatening to file a complaint against him, so that he would cancel a previously agreed-upon set of site inspections and instead appoint a single, supposedly independent expert to make a ‘global’ assessment of damages. Although the judge initially refused to cancel the inspections, he later changed that ruling after the plaintiffs’ representatives threatened him.”
  • “Bribed the Court-Appointed ‘Global’ Expert Through Money-Laundering: The Ecuadorian plaintiffs’ representatives funneled covert, illegal payments to the supposedly independent, global damages expert from funding sources in the United States, and provided other assistance to the expert, in order to ensure that the expert ‘would totally play ball with’ the plaintiffs’ team.”
  • “Secretly Wrote the Court-Appointed ‘Global’ Expert’s Report: The Ecuadorian plaintiffs’ representatives then arranged for their U.S. consultants and others to secretly write most or all of the global expert’s report, which the expert then filed under his own name. Once the report was made public, the plaintiffs then attacked (their own) report for not coming up with a high enough damages figure in a submission written by their consultants. Those same consultants then also secretly wrote the expert’s reply to (their own) critique. The principal Appellant personally directed this entire charade.”
  • “Obtained Orders in Their Favor Through Bribery: The last judge who presided over the Ecuadorian action, before the case was assigned to him, secretly paid an associate to ghostwrite the presiding judge’s orders in certain cases. As documented by photocopies of deposit slips (and other evidence), once the presiding judge took over their case the Ecuadorian plaintiffs’ representatives bribed the ghostwriter to write orders that would favor them. The court then issued the ghostwritten orders as its own decisions.”
  • “Bribed the Judge to Issue a Judgment that They Secretly Wrote: Finally, the Ecuadorian plaintiffs’ representatives promised the presiding judge a cut of the proceeds from the enforcement of a judgment in their favor, in exchange for which the judge permitted them to secretly ghostwrite the judgment against Chevron, which the presiding judge then issued as the judgment of the court.”

Chevron executives can hardly be blamed—let alone subjected to criminal investigation—for refusing to honor such a judgment. As the human rights jurists concluded, “If the District Court’s factual findings are accurate in whole or significant part, the corruption of the judicial process in Ecuador undermined human rights and corroded the rule of law.”

Curiously, plaintiffs’ petition to the ICC quotes a portion of my own report filed with the United Nations in 2013. I wrote:

Fraudulent litigation against any defendant—including corporate defendants—deserves repudiation by the human rights community. First, it offends human rights principles. Perversion of the judicial process violates due process of law, an essential bulwark of human rights and the rule of law. Second, committing—or condoning—fraud in the pursuit of justice for human rights victims risks the credibility of the human rights movement. And third, if we fail to distance ourselves from fraudulent litigation against business corporations, business may be less inclined to take seriously its own human rights responsibilities.

After quoting this passage, plaintiffs’ petition responds that their legal team “merely pursues justice.” If that were true, I would be the first to applaud their vindication of human rights. But it is not true. As observed by the amicus brief of the human rights and anti-corruption jurists, the plea by plaintiffs’ lawyers “to look the other way in the name of human rights must be rejected. Advocates for human rights do not advance human rights by violating them …”

Even if plaintiffs’ petition were not otherwise fatally flawed, then, launching a criminal case before the ICC would not be in the interests of justice.

A proper judicial assessment of the environmental situation in Lago Agrio (or else a reasonable settlement based on credible scientific evidence) is still needed. For too long, any conceivably legitimate claims by the plaintiffs have been held prisoner by their lawyers’ misconduct. An ill-conceived and unfounded proceeding before the ICC will only further delay and distract from the justice which plaintiffs’ lawyers profess to seek.

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