BREAKING: Chiquita Liable!! Read More.

One Friday afternoon in October 2004, Anvil Mining employees transported a Congolese army detachment in company plane to Kilwa, a copper mining town located near Anvil’s Dikulushi copper mine, which had come under the control of a small group of poorly armed men who had explicitly announced they did not intend to stop the company’s mining activities.  Over the course of two days, Anvil employees drove the soldiers around Kilwa in Anvil cars while they slaughtered townsfolk, burned their houses, and buried them in mass graves.  When the smoke cleared, over eighty civilian Kilwans were dead.

On January 24, three judges on the Québec Court of Appeals informed the representatives of the victims that the courts of Canada are closed to their claims for redress.  (The judgment, in French, is available here.)

As I described in a previous post, the victims of the Kilwa massacre sought justice in Congolese and Australian courts for years.  A Congolese military tribunal acquitted several defendants (including three company employees) of all responsibility for the killings after a trial marred by internationally criticized irregularities.  Australian lawyers who initially took on the case with the intention of suing Anvil at its headquarters in Perth ended up dropping it due to intimidation through costly procedural maneuvers, and interference by D.R.C. officials who prevented them from meeting their clients.

All this seemed set to change when a judge in Montréal accepted the case and rejected Anvil’s efforts to dismiss the claims.  In an April 2011 decision, the court found that jurisdiction in Québec was proper, as Anvil maintained an office in the province, and its staff in Queébec necessarily dealt with issues related to the Dikulushi mine, which was Anvil’s sole asset.  The court also noted that as a practical matter, the plaintiffs were unable to find justice anywhere else, as evidenced by their failed efforts to date.

The latest ruling reversed the lower court’s decision, wiping away not only legal conclusions but also findings of fact, in what I can only describe as a judgment that is either naïve, unjust, or both.  First, the court decided that jurisdiction was improper, reasoning that Anvil’s activities in Québec, which began after the events at Kilwa, had no link to the massacre or the management of the mine in the D.R.C.  The legal issue is complicated, and I’m not a Québecois lawyer, but the court’s logic appears to have created a standard that is literally impossible to meet: although the links necessary to establish jurisdiction need not have existed at the time of the events giving rise to the claim as long as they exist at the time the lawsuit is filed, the activities conducted in Québec, which must have a link with the events giving rise to the claim in order to suffice for jurisdiction purposes, cannot be reasonably related to those events if they began after the events took place.  If anyone can figure out how to thread this needle and meet the jurisdictional standard, I’d love to hear it.

More troubling, the appellate court dismissed the trial court’s finding that the plaintiffs could not find justice elsewhere, concluding – evidently based on precisely no evidence – that the Congolesecivil courts were available even though the military courts had committed a miscarriage of justice and Congolese officilas had already intimidated one group of Australian lawyers from retaining the case.  The court also discounted the very real problems the plaintiffs had encountered in seeking legal representation and judicial redress in Australia.  This was a key finding, because it permitted the court to decline to apply Québec’s very forward-looking “forum of necessity” provisions, which allows an assertion of jurisdiction in extraordinary circumstances where justice would otherwise be denied.

The Québec Court of Appeals judgment takes its place among a growing list of cases in which Canadian courts have rejected human rights-based claims on the theory that they should proceed elsewhere, only to see those cases prove stillborn in the countries where the events occurred.  I couldn’t agree more with a press statement released by Amnesty International about the decision:

“In cases of alleged human rights abuses, decisions on jurisdiction must be informed first and foremost by human rights considerations; in particular the extent to which claimants stand a realistic chance of accessing justice and obtaining adequate reparation in other forums. If these elements have no place in the balancing exercise that a judge conducts to assess jurisdiction, it is no surprise that alternative forums, found to be adequate, blatantly fail to provide victims of corporate human rights abuses with access to justice and reparation in practice.”

But beyond the failure to balance human rights considerations in deciding on jurisdiction, I’m troubled that the court ignored important facts and judicially imposed a Kafka-esque legal hurdle in order to reach their conclusions.  This, to me, signals an institutional tendency to avoid providing a forum for transnational human rights cases that stands apart from actual legal formulas and reflects instead a political sense that home countries should not have to deal with the problems caused by their companies abroad.  If I’m right, then the decision undermines the right to a remedy that sits at the heart of international human rights law and decreases the chances that victims of serious abuses will find a path to justice.

The plaintiffs have announced their intention to pursue their case to the Canadian Supreme Court, and ERI will be supporting their efforts. I can only hope that the justices of Canada’s highest court will recognize a sensible application of the law that vindicates the aspirations of the Kilwa community, and recognizes home countries’ duties to provide effective remedies for victims of human rights abuses.