A case on Exxon Mobil’s alleged human rights abuses in Indonesia can proceed in a U.S. court, but only if it can be proven that the decision-making process that led to those abuses unfolded on U.S. soil.
WASHINGTON — Two court cases stemming from longstanding human rights abuse allegations against Exxon Mobil Corp. operations in Indonesia are again going forward, following a federal judge’s decision here that supporters call a “huge victory.”
Rights advocates say the news is being welcomed by the plaintiffs and others in the Indonesian province of Aceh, who have been waiting for 13 years for a resolution to these and similar allegations. Indeed, the new movement in the cases could now result in a full trial, leaving open the prospect of Exxon Mobil executives coming face to face with Aceh villagers.
Legal scholars note that the judge’s decision, which also rejected the oil and gas giant’s request that the cases be dismissed, could now prove consequential around broader questions of corporate accountability. This has to do with the continued legal roiling that has followed a decision by the U.S. Supreme Court that last year significantly limited the ability of foreign victims of corporate rights abuse to have their cases heard in this country’s courts.
“This ruling is going to be important for the audience in Aceh, 10,000 miles away from Washington, D.C., to learn that Exxon Mobil might face these Acehnese villagers in a U.S. court. It is also obviously important for the audience in Indonesia,” Andreas Harsono, an Indonesia researcher with Human Rights Watch, told MintPress News.
“It is also important to advance the possibility of legal redress when companies are implicated in human rights abuse, especially because there are few avenues for victims when their rights are violated. U.S. courts have recently been hostile to the notion that companies should be domestically accountable for human rights problems abroad.”
The allegations stretch back to abuses carried out by the Indonesian military between 1999 and 2004 against villagers in Aceh. According to complaints first filed by locals in 2001, Exxon Mobil should be held responsible for some of these abuses because the company had hired and armed military personnel to run security around some of the massive gas fields in the province.
The plaintiffs allege that “Exxon had the ability to control the actions of these soldiers by such methods as conditioning payment on provision of specific security services, making decisions about placement of bases, engaging in strategic mission planning, and deciding on deployment zones,” according to the decision, which was handed down by U.S. District Court Judge Royce Lamberth in late September.
“Plaintiffs further assert that Exxon provided material support to the security personnel by, for example, constructing facilities, providing funding for weapons, providing supplies and equipment, and paying for the services of consultants in training and equipping the personnel.”
No answer on liability
Of course, abuses by the Indonesian military against villages in Aceh continued for decades, in the context of the violent civil war that had long wracked the region. Exxon Mobil took control over what are known as the Arun gas fields, some of the largest in the world, when it merged with Mobil Oil in 1999.
At that time, the military was simultaneously working for the company and harshly pursuing separatist militants. According to details in the complaint, while working for Mobil Oil and, later, Exxon Mobil, Indonesian security personnel caused injuries and even the deaths of local villagers.
Exxon Mobil, meanwhile, has vigorously maintained its innocence. Legal attempts to hold the company accountable have stretched on through multiple judges and more than a dozen years.
“The plaintiffs’ claims are without merit … We have fought these baseless claims for many years,” a spokesperson for the company told the media following Judge Lamberth’s decision.
“While conducting its business in Indonesia, Exxon Mobil has worked for generations to improve the quality of life in Aceh through employment of local workers, provision of health services and extensive community investment.”
The spokesperson noted that the judge has reached no conclusion about Exxon Mobil’s liability.
Indeed, the recent decision adds new complexities to the case, although it does also clarify how the prosecution should proceed. The process will now take place under Indonesian state law, thus spanning U.S., Indonesian and international legal regimes. It will also take into account the new legal environment in the aftermath of last year’s U.S. Supreme Court decision.
In fact, that case, known as Kiobel v. Royal Dutch Shell, involved circumstances somewhat similar to the allegations against Exxon Mobil.
Touch and concern
The Kiobel case revolved around claims by Nigerian citizens that the local subsidiary of Royal Dutch Shell, abetted by the Nigerian government, abused local communities that were opposing the company’s oil and gas development.
Such cases are notoriously difficult to pursue, given questions over jurisdiction. However, the U.S. legal system has long had a law on the books, known as the Alien Torts Statute, that has been used to provide a unique avenue for redress for victims of certain crimes that have taken place in other countries.
The Kiobel case was indeed brought against Royal Dutch Shell’s U.S. subsidiary under the ATS. Yet in a unanimous decision that shocked many observers, the Supreme Court last year severely limited this option.
Further, while questioning the extent of Shell’s connection to the United States, the justices introduced a new metric. ATS cases may still be able to go forward, the Supreme Court stated, but only if plaintiffs’ complaints “touch and concern” the U.S. directly. The actual degree of this required connection was not defined, though “mere corporate presence” is not enough. Since then, lower-level courts have been conflicted over how exactly to interpret this new mandate.
Thus, while Royal Dutch Shell’s decision-making process was deemed too removed from the U.S. in the Kiobel case, the plaintiffs in the Aceh case point out that Exxon Mobil was and remains headquartered in Texas. In what is considered a major move, Judge Lamberth has now allowed the plaintiffs’ lawyers to re-argue their case in light of this new “touch and concern” standard.
The central question for the court is defining the extent to which Exxon Mobil’s decision-making around its security operation in Aceh came directly out of the company’s Houston headquarters.
“In light of the Supreme Court’s holding in Kiobel … the Court must determine what U.S.-based conduct is alleged by plaintiffs to decide whether the presumption against territoriality is overcome in this case,” Judge Lamberth writes.
“If plaintiffs have sufficiently alleged conduct within the United States that is actionable under the ATS, their ATS claims are not defeated on the basis of the presumption against extraterritoriality.”
As noted in the complaint quoted at the end of the first section of this story, the plaintiffs appear to feel they have evidence that this U.S.-based decision-making was indeed significant.
“This was a really strong opinion, and this will now be one of the first cases to consider how Kiobel applies when significant control is exerted from within the United States,” Agnieszka Fryszman, the lead counsel in the case, told MintPress. “Here, pretty much everything was run out of Houston.”
Message on impunity
An important facet to Judge Lamberth’s legal logic – and to any ATS claim – is the finding that the plaintiffs would be unable to find justice for their allegations through the Indonesian courts and in the absence of any human rights tribunal. The judge notes that this is in part due to political corruption.
This points to an ongoing concern for many rights activists focusing on Indonesia, including here in the U.S. Beyond allegations of U.S. corporate use of the Indonesian military, after all, the U.S. government is known to have supported Indonesia’s security forces in its years-long fights against separatist groups.
“The failure of Indonesia to fulfill its pledge to establish a truth commission and human rights court for Aceh clearly demonstrates how impunity prevails in Indonesia,” John M. Miller, the national coordinator of the East Timor and Indonesia Action Network, an advocacy group, told MintPress.
“This lawsuit can shine a light on U.S. complicity with systematic violation of human rights in Indonesia, while sending a strong message to U.S. companies that they can’t participate in repression abroad with impunity.”
Following Judge Lamberth’s decision, the plaintiffs’ legal team will now file an amended complaint before the end of this month.