In the summer of 2002, Chinese security officers arrested Doe VIII (whose name is withheld to protect his family), a practitioner of the Chinese spiritual practice Falun Gong. His arrest was part of a campaign of persecution by the Chinese government that included targeting those who visited Falun Gong websites and shared information about widespread human rights abuses of Falun Gong practitioners in China. Sometime in late August of 2002, Doe VIII was beaten to death in a Chinese detention center. Doe VIII’s family joined other victims of this persecution and torture to file a lawsuit seeking accountability for these abuses. The victim-plaintiffs were all subjected to forced conversion through torture practices in addition to numerous other horrific human rights abuses.
While the Silicon Valley tech company Cisco may bring to mind only computer firewalls and routers, Cisco is alleged to have played a deeply disturbing role in human rights abuses against Falun Gong practitioners. The company is alleged to have designed, implemented, and maintained the surveillance and internal security network known as the “Golden Shield” and its anti-Falun systems, which were used by Chinese security (1) to identify Internet users as Falun Gong, apprehend and locate them as part of a widespread campaign of religious persecution, and (2) to subject them to forced conversion through torture practices. Those who refused to abandon their spiritual beliefs were subjected to further abuses, and in the case of Doe VIII, death.
The lawsuit against Cisco was filed under the Alien Tort Statute (ATS), which allows non-U.S. citizens to sue in U.S. courts for violations of international law. In 1979, in the landmark case Filártiga v. Peña-Irala, CCR pioneered the use of the ATS for accountability for human rights abuses. Since then, the ATS has been used to bring claims for human rights violations against government officials, private actors, and multi-national corporations. But in the 2013 case Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court limited the scope of the ATS to claims that “touch and concern the territory of the United States.” Since that ruling, CCR and others have been urging courts to understand the Supreme Court’s language in light of the history and purposes of the Statute – i.e., as a vehicle to provide non-citizens redress for well-recognized international law violations including those committed by U.S. nationals – so that the ATS remains a tool that ensures human rights abusers do not find a safe haven in U.S. courts.
When it comes to U.S.-based corporations, we believe it is clear that when those companies significantly contribute to or commit human rights abuses, civil claims for those violations “touch and concern” the United States. CCR joined the amicus brief in the case against Cisco, filed by Earth Rights International, to highlight for the Court of Appeals for the Ninth Circuit why citizenship matters in the context of the ATS. Last year, the Court of Appeals for the Fourth Circuit agreed with us that it is a relevant factor for court’s to consider in our case Al Shimari v. CACI. In Al Shimari, CCR represents former Iraqi detainees who sued a private government contractor, Virginia-based CACI Premier Technology, Inc. (CACI), over the company’s role in the torture of prisoners at Abu Ghraib, in which U.S. military investigators determined CACI employees participated.
As in Al Shimari, the fact that Cisco is a U.S.-based corporation means that the diplomatic concerns present in the Kiobel case of hauling a foreign corporation into a U.S. court to answer for harms caused overseas do not arise. We argue that the risk of causing “international discord” would not arise from adjudicating this case; discord, we submit, would result more from allowing a U.S. company to evade its responsibility for contributing to serious and internationally-recognized human rights violations. Indeed, the principles we urge the court to recognize in Cisco – that “home” States have an obligation to provide a forum for claims against their domestic corporations for violations that occur extraterritorially – are reflected in international legal instruments and codified many national laws. Victims are successfully bringing such cases in other countries, including The Netherlands, the United Kingdom, and France, and new cases have recently been filed in Canada.
Here, the law must not be interpreted as giving U.S. companies a free pass to commit serious harms in other corners of the globe – harms which the United States has undertaken to prevent and redress. That Cisco is alleged to have designed the Golden Shield for the Chinese government with the knowledge and for the purpose that it would be used to surveil and commit human rights abuses against Falun Gong practitioners incurs liability under international law – and the ATS is the appropriate vehicle for victims to pursue accountability and redress for it.
This case is part of a global movement for corporate accountability. Indeed, a process is now underway to have the principles the plaintiffs are advancing in Cisco, Al Shimari and other ATS cases codified in a new binding international legal instrument that addresses businesses and human rights. The process gained momentum with the meeting of a United Nationals inter-governmental working group in Geneva that I attended over the summer. Communities directly impacted by the activities of multi-national corporations, along with activists, and legal experts are working together to ensure that the treaty process is inclusive and that the proposals – and the outcomes – reflect the perspectives and priorities of global civil society. I also participated in the African regional consultation in October, which was organized by FIDH and ESCR-Net. It was clear that while there are many areas of shared concern about corporate behavior and power, such as “corporate capture,” solutions must be informed by voices from all parts of the world, including and particularly the Global South.
While priorities about the scope and nature of remedies and redress remain to be determined, on one point the global movement is clear: corporations must be held to account for their participation in human rights abuses. We hope that the Cisco case moves us one step closer to achieving that goal, for the family of Doe VIII and the other plaintiffs, and for the larger corporate accountability movement.