Dubious Lawsuit

Thursday, March 17, 2005

Dubious Lawsuit

Posted by proxy - this is an post written by Arnold but posted by Eugene
And I really mean “dubious”; I’m not saying the plaintiffs should definitely lose, only that I have serious doubts.

You may remember Rachel Corrie, the American activist who was killed by an Israeli military bulldozer. The bulldozer’s driver was trying to knock down a Palestinian’s house (the government contends the houses it demolishes belong to terrorists and others linked to terrorism), and Corrie was standing in front of the house.

Now Corrie’s parents are suing Caterpillar, which manufactured the bulldozer. The theory is that Caterpillar supplies specially modified bulldozers to Israel knowing that Israel will use the equipment to violate international law by destroying Palestinians’ houses (obviously, Israel denies that its actions violate international law; I am just summarizing the plaintiffs’ claim).

My first reaction was: why not sue the Israeli government, which was the direct (alleged) wrongdoer? But the Corries have already done that in Israeli court. The new suit is in American court. Caterpillar, as you may know, is an American company.

I have strong reservations about holding a company liable for lawfully exporting goods to a foreign government on the theory that the government is going to use the goods illegally and the company knows it. In a way, this is another angle on the continuing effort to use U.S. courts to enforce international human rights laws, a project about which I am ambivalent. The case is being handled by, among others, the Center for Constitutional Rights, an excellent outfit that has been in the forefront of efforts to revitalize the Alien Tort Claims Act by using it to hold individuals and companies liable for human rights violations overseas. I greatly respect CCR and do not lightly criticize a suit that they are supporting.

Still, I think they’re on the wrong track with this one, even if one assumes that their Alien Tort Claims Act cases are a good idea. It’s one think if the U.S. government decides that we shouldn’t be supporting a particular foreign regime and prohibits or restricts sales of weapons or other equipment to that regime. If a manufacturer circumvents or even violates a sales ban in that scenario, I would be much more comfortable exposing it to civil liability to the victims of its actions. And perhaps tort liability would be O.K. even in the absence of government restrictions if the foreign regime were engaged in such heinous actions that no reasonable person could deny that it was violating international law. But in this case, there seems to be a genuine dispute about whether international law bars Israel from demolishing houses in the Occupied Territories as either a punitive or a preventive measure against terrorists and their aiders and abettors (which, if I understand correctly, is what Israel claims it is doing). In that kind of situation, it seems to me to be unfair to expect a company to decide whether its equipment is being used for a lawful purpose, on pain of potentially millions of dollars of liability.

Note what I am not saying. I don’t have a problem with a moral or political or economic campaign to pressure companies into not selling to particular regimes. Through shareholder resolutions, or boycotts, or publicity campaigns, or simply by trying to persuade management, I think people should be able to get a company to stop supplying equipment to the Israeli military, or to the Zimbabwean regime, for example. And of course activists can lobby for export restrictions to be imposed by law. But that’s different from holding a company legally responsible for a foreign government’s alleged crimes when the company is not violating any U.S. law and when there is a colorable dispute about whether the foreign government’s actions are criminal at all.

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