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African workers cannot sue in US over DBCP |
25th September 2008, San Francisco Chronicle
The San Francisco Chronicle reports that nearly 700 workers in the Ivory Coast who claim they have been made sterile cannot sue manufacturers and distributors of the nematicide DBCP in the USA because they cannot prove that the companies intended to harm them. The workers' lawyer had claimed that this was a crime against humanity, but the Los Angeles court ruled that "crime against humanity" cannot apply to a business.
In a lawsuit filed in a Los Angeles federal court, nearly 700 workers
in the West African nation accused the companies of genocide and crimes
against humanity for allegedly marketing DBCP abroad after the
pesticide, used to kill nematodes on banana crops, was outlawed in the
United States.
The chemical was first banned in California in 1977 after men working
at a San Joaquin County chemical plant were found to be sterile. The
Environmental Protection Agency prohibited use of DBCP nationwide in
1979. But export of the chemical remained legal, and the Ivory Coast
plaintiffs alleged that it was sold and used in their country through
the mid-1980s by companies that had known of its hazards since the
1950s.
The defendants included Dow Chemical and Shell Oil, which made DBCP,
and Dole Foods, which allegedly entered into a partnership with the
Ivory Coast government to grow bananas sprayed with the pesticide. The
suit was filed under a law nearly as old as the United States - the
1789 Alien Tort Statute, which allows foreigners to file damages claims
in U.S. courts for violations of international human rights.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said the
workmen's allegations, even if proven, wouldn't show that any of the
companies had violated well-established international law.
Genocide, as defined by "customary international law" and U.S.
treaties, requires proof that the perpetrator intended to destroy all
or part of a national, racial, ethnic or religious group, the court
said.
The Ivory Coast workers claimed only that the companies knew DBCP was
likely to sterilize them and did not allege an intent to do so, the
three-judge panel said. A 1998 treaty known as the Rome Statute defines
genocide more broadly to include actions that the defendant knows will
destroy part of a population, but that treaty, which also created the
International Criminal Court, has been rejected by the United States,
the court noted.
The court also said a charge of crimes against humanity can be made
only against a government or a "state-like organization," such as a
militia that controls certain territory, and does not apply to a
business.
Raphael Metzger, the workers' lawyer, said he disagrees with the ruling
and will ask the full appeals court to order a new hearing before an
11-judge panel.
"It's a violation of international law to undertake acts which you know
will prevent births," Metzger said. He accused the companies of
"marketing this poison to the Third World for population control."
Edwin Woodsome, lawyer for Dow Chemical, said the court followed a 2004
U.S. Supreme Court ruling that narrowly defined the serious violations
of international law for which foreigners could sue. He also said Dow,
one of the manufacturers of DBCP, "is completely blameless, both
factually and legally," for the use of the pesticide in Ivory Coast.
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