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Los Angeles Times
Pipeline to Justice? A U.S. appeals court offers hope
to Myanmar farmers who accuse Unocal of complicity in human rights abuses.
First of two parts. By Lisa Girion, Times Staff Writer.
June 15, 2003.
THAILAND, NEAR THE MYANMAR BORDER -- Carrying her gravely injured infant daughter, a woman emerged from the jungle and struggled to make her way to a refugee camp, where she told of their harrowing exodus from Myanmar.
They had been assaulted by soldiers searching for her husband after his escape from a crew of forced laborers. Unable to find him, the soldiers lashed out at her. An officer berated her, beat her and kicked her so hard that she and the newborn she was nursing fell into a cooking fire.
"My baby wasn't even crying anymore, she was so badly burned on her head," the woman said, recalling how she cradled the girl, just a month old, as she searched for help.
The woman blames the "project of the white people" for her misery. Her husband was among hundreds of villagers forced to work for Myanmar's Tatmawdaw, the People's Army. The army had been assigned to guard a $1.2-billion natural gas pipeline built by Unocal Corp. and a French partner through the wooded flatlands and mountain rain forests of the Tenasserim region.
Nine years later, the woman, identified in court documents only as Jane Doe 1, waits to be called as a witness in lawsuits accusing the El Segundo-based company of complicity in human rights abuses allegedly committed by Tatmawdaw soldiers in the country formerly known as Burma.
If Jane Doe 1 and 14 other plaintiffs succeed in forcing Unocal to defend itself in a courtroom thousands of miles from the scene of the alleged crimes, they will make history.
More than two dozen suits have been filed in U.S. courts over the last decade against U.S. corporations -- including Exxon Mobil Corp., Ford Motor Co. and IBM Corp. -- for alleged human rights abuses in countries from Colombia to South Africa. None has been tried.
Should the Unocal case be the first, a Los Angeles jury will face questions moral as well as legal: Can a corporation be held liable for human rights violations by a foreign government that is a business partner? How much of a hand in the abuses must the company have had to be found liable? What if it simply turned a blind eye?
Lawyers for Unocal acknowledge that the soldiers swept the jungle, dragooning men and women to work as porters. But the lawyers say no forced labor was used on any aspect of the pipeline project and no one at Unocal could control the military. They also say the company had no knowledge of the violent acts, including murder and rape, that soldiers are alleged to have committed.
This week, at a hearing in San Francisco before 11 judges on the U.S. 9th Circuit Court of Appeals, Unocal will argue against a ruling made last year by a three-judge panel, which found that there was sufficient evidence for the company to stand trial. The majority opinion said there was reason to believe that Unocal "gave assistance and encouragement to the Myanmar Military."
Unocal, the judges said, was no different from the German armaments firm Krupp, which was tried for war crimes at Nuremberg after World War II: Unocal "resembles the defendants in Krupp, who well knew that any expansion of their business could require the employment of forced labor."
Unocal sees it differently. "The military has a general obligation in every country to maintain authority," said Charles Strathman, the company's chief legal officer. "That's not the same as hiring the military. 7-Eleven investors aren't liable for what police do when they are called to a store."
The pipeline emerges from the warm waters of the Gulf of Martaban in the Andaman Sea at the fishing village of Daminseik, a smattering of weathered wooden and bamboo huts sandwiched between the shore and a strip of rice paddies plied by water buffalo. On a nearby hilltop, a Buddhist temple stands watch.
Baptist missionaries came here in the 19th century to convert the ethnic Karen and Mon from Buddhism, inspiring the construction of a few churches amid the ubiquitous golden stupas. But until the pipeline, the landscape of the Tenasserim hadn't much changed.
Jane Doe 1's life had been as constant, she recalled, until the day in May 1992 when soldiers appeared in her remote village. It was in the path of one of the pipeline routes under consideration by the government, and the soldiers ordered the villagers to move to a relocation camp far from their home.
"Until the pipeline came, we were free," she said. "Burmese soldiers were fairy tales. We never saw them. But they came with the pipeline."
Jane Doe 1 and other plaintiffs, living in hiding under a court-ordered cloak of anonymity, told their stories from safe houses here. The interviews were supplemented with court documents and declassified diplomatic cables. The plaintiffs' lawyers asked that the men and women not be identified by The Times for fear of retribution.
The interviews were arranged and translated by Ka Hsaw Wa, a Karen human rights activist. He is co-founder of EarthRights International, whose lawyers are representing some of the plaintiffs.
The plaintiffs' accounts are the basis of two lawsuits, which are proceeding concurrently in federal court. They were filed under the Alien Tort Claims Act, a 214-year-old law dusted off in the late 1970s to bring suits in the U.S. against foreign dictators and multinational corporations over alleged abuses abroad.
As Jane Doe 1, a petite woman wearing a loose-fitting T-shirt over faded black pants, began her story in her native Karen, her big, dark eyes welled with tears. Though she and her husband were frightened, they ignored the soldiers' evacuation command. They moved instead to a nearby village, the one where she had grown up, hoping to continue to tend the cows, hens, rice paddies and cashew trees on their small farm.
They sold livestock to satisfy the soldiers' demands for money, she said, until they had nothing left. Then the soldiers took her husband, John Doe 1.
He testified that he worked on a pipeline road. The government was eager to build a line to tap an enormous natural gas field 150 feet below the surface of the Andaman Sea. The field is called Yadana, the Burmese word for treasure.
As the state-owned Myanma Oil and Gas Enterprise was inviting companies to bid on the project, many U.S. firms already in Myanmar were leaving.
When Levi Strauss & Co. quit the country in 1992, an executive said: "It is not possible to do business without directly supporting the military government and its pervasive human rights violations."
Myanmar's ruling junta of generals, victorious in a violent 1988 coup, was widely denounced as brutal in its treatment of political opponents and of Mon, Karen and other ethnic insurgents active along the borders of Southeast Asia's largest nation. It had ignored the results of 1990 elections in which Nobel laureate Aung San Suu Kyi's pro-democracy party won a landslide victory. (Last month Suu Kyi narrowly escaped a government-sponsored attack but was detained soon after and has been held since.)
Unocal already had a foot in Myanmar. In the late 1980s, the company briefly had held a stake in an oil and gas exploration project in the central part of the country. Now it was interested in the Yadana, and it paid the consulting firm Control Risk Group for an assessment.
The May 1992 report was frank: The government "habitually makes use of forced labour to construct roads," it said, adding that the Tatmawdaw was ordering whole villages to relocate. The goal was to cut any ties the villagers may have had with Karen and Mon rebels, a tactic the U.S. Army employed in its "strategic hamlets" relocation program in Vietnam.
"There are credible reports of military attacks on civilians in the regions," the report continued, and "the local community is already terrorized."
Back at headquarters in California, at least one executive was concerned that Unocal would be relying on the Myanmar junta to provide protection for the pipeline and that the military would be "out of our control," as Stephen Lipman, then Unocal's vice president of international affairs, recounted in a deposition.
But the oil and gas exploration project in the central part of the country had proceeded smoothly, Unocal's lawyers noted, with no evidence that locals ever had come to any harm. Oil and gas companies routinely do business in politically unpleasant or unstable climates, and it's customary for foreign governments to provide security.
Unocal made a bid, losing to the French company Total. Then, early in 1993, Total took Unocal on as a partner to develop the offshore field and build the pipeline. The companies signed contracts with the government's Myanma Oil and Gas Enterprise, which owns stakes in both the pipeline and the field.
According to Unocal, the pipeline contract didn't specify that the military would secure the line, clear access roads, build helicopter pads or do any other infrastructure work. What's more, Unocal says, it made no contractual agreement directly with the army of Myanmar.
The plaintiffs have another view. They say that by signing a contract with the commercial arm of a military junta, the company effectively went into business with the Tatmawdaw.
Under U.S. and California law, participants in a business deal can be held responsible for one another's misconduct. As the plaintiffs' lawyers describe it, a bank that contracted with the Mafia to collect its debts could be held responsible under what is known as joint enterprise liability should the mob get rough.
"When you enter into a partnership with the devil knowingly," said Dan Stormer, a Pasadena lawyer representing some of the plaintiffs, "there are going to be bad results."
John Doe 8's job for the People's Army was to carry supplies -- bullets, boots and rice -- in a basket held in place against his back by a strap stretched across his forehead. The loaded basket weighed so much he couldn't sit or stand without help. Even during the most searing hours of the tropical afternoon, the soldiers never gave him water.
"The load was so heavy and I was so hot and thirsty that I just had to suck on my own sweat," he said from a safe house, recalling how he would stick his tongue out to catch the beads of perspiration as they dripped off his brow.
The porters cleared land and built barracks for the battalions the ruling generals sent to the Tenasserim, toiling for 10- or 15-day stretches several times a year. They had to abandon their crops, sometimes for so long that they couldn't feed their families.
One day, porter John Doe 5 remembered, a fellow laborer got sick and collapsed under the weight of the basket on his back, and a soldier kicked him and punched him "over and over," leaving him on the side of the road. John Doe 5 said he later found the man's body in the brush.
In the United States, some Unocal shareholders were growing uneasy.
The international community had long decried the brutality of the Myanmar regime and its widespread use of forced labor. At Unocal's annual meeting in the spring of 1994, there was a vote on a resolution to force Unocal to issue a report on operations in Myanmar. The resolution, opposed by management, was defeated.
That spring, John Imle, then Unocal's president, had dispatched the first of several fact-finding missions to the Tenasserim. "I thought it would be a good idea in order to be able to more directly defend ourselves against what I felt and still feel were very unfair allegations," he explained in a deposition.
The company's chief executive at the time, Roger Beach, summarized the findings: There was "absolutely no evidence of human rights violations," he wrote in December.
About the same time, with Christmas fast approaching, Jane Doe 2 and her grandniece set out on a two-day walk to buy pigs to roast for a holiday feast.
Their squealing purchases in tow, the women stopped to drink from a stream. Suddenly, they were surrounded by soldiers carrying machine guns. "They said they'd kill us," recounted Jane Doe 3, who was 17 at the time. "I was scared."
As night fell, the women said, they were marched for about two hours until they got to a bamboo forest so thick they barely could see the sky. Then someone turned on a flashlight. Jane Doe 3 said she realized that "there were soldiers everywhere."
An officer demanded that Jane Doe 2 bring her grandniece to him and then chased the older woman away with a knife. "After a while I heard my grandniece screaming for me," she said. "She was screaming and crying for my help. I yelled back, 'I cannot go near you. I cannot help.' "
The officer ripped the girl's clothes, popping the buttons off her blouse. "I cried and I didn't even realize I was crying," Jane Doe 3 said. "I was so scared. While he raped me, I cried because it was so painful. I screamed. I screamed for my great-aunt. He said, 'Don't.' He closed my mouth with his hand, and it was hard for me to breathe."
Afterward, the officer allowed her to go back to her great-aunt. They whispered to each other in the dark. The next day, the soldiers let them go.
"Before they came and built the pipeline, there were no soldiers," Jane Doe 2 said. "When the pipeline came, it destroyed our lives. We lost our home. We lost our livelihood. We lost everything."
John Imle, Unocal's president at the time, made no apologies for the military's conduct, especially in a country beset by ethnic insurgency.
"What I'm saying is that if you threaten the pipeline, there's gonna be more military," Imle told human rights advocates who met with him at company headquarters in early 1995, according to a transcript of the session entered into evidence in the suits. "If forced labor goes hand in glove with the military, yes, there will be more forced labor. For every threat to the pipeline there will be a reaction."
In a deposition, Imle later sought to clarify his remarks. "I did not intend to agree that there was forced labor being used in connection with this project, because I'm not sure."
Unocal and Total mark October 1995 as the start of pipeline construction.
French, Japanese and Italian firms were hired to manufacture and lay 5,134 lengths of pipe, each weighing 5 tons. The project employed 2,500 people, including 300 expatriates and 2,200 locals. The work, limited to the dry months from October to April, was completed in 1998.
The two companies maintain that -- as distinct from the porters conscripted by the army -- all the workers hired by the pipeline contractors were voluntary and adequately paid. "We built everything," said Jean du Rusquec, head of exploration and production in Myanmar for Total. "We built the roads. We built the helipads. We built the bridges. We built the wharf."
The plaintiffs say it wasn't that simple.
Before the building of the pipeline began, according to court filings and interviews with plaintiffs, some of the forced laborers chopped trees and pulled out muscular roots to clear the jungle floor for infrastructure later used by Unocal and Total.
John Doe 9 testified that he was forced to lay roads leading to the pipeline construction area and help build a helipad that was used by Unocal and Total officials visiting the region. John Roe 10 testified that he too was pressed into working on helipads.
John Doe 7 said in an interview that one day, while he was clearing the ground for a helipad, a chopper touched down and dropped off three "Westerners," who he assumed were pipeline workers. He said he got a good look at the strangers, but they didn't see him. His overseers, he said, "knew the helicopter was coming and told us to stop work and hide in the bushes."
The companies say villagers who believe they were forced to work on pipeline-related projects must be confused. Some may have worked on a government-run railway that used forced labor; the two projects run along perpendicular lines, at one point intersecting.
One of the road laborers, John Doe 1, could take only so much.
After the rice he had brought with him ran out, his wife recalled, the hunger pangs were unbearable and he fled. He collected her and their two children, and they set out to find a refuge in the jungle. Along the way, their 2-year-old son died. But they didn't change course.
"It was very difficult," said Jane Doe 1. "We ran out of money, and we knew if we went near the military we'd be working a lot for the army."
Soldiers eventually found them, she said, about a month after she had given birth to a daughter in the fall of 1994. They came when her husband was away fishing, and that is when she was beaten and she and her newborn kicked into the fire.
As Jane Doe 1 searched for medical assistance, she said, she, her baby and her older daughter were caught twice by soldiers, who robbed them and forced them to sleep outside in the cold. When they reached the border camp about two weeks after the assault, doctors told Jane Doe 1 that her baby had a broken back and had been bleeding internally for some time. "They said there was no hope."
She held Baby Doe in her arms for two days, comforting her until she died.
"The project of the white people turned our life upside down," Jane Doe 1 said. "We believe they are responsible for that."
Just how much Unocal officials knew about specific episodes is far from clear. In May 1995, a Unocal representative told officials from the U.S. Embassy in Yangon, Myanmar's capital, that "the military had not given Total/Unocal foreign staff access to the helipads within many miles of the border during the period of their construction."
"It is possible that some of those complaining of abuses to journalists and human rights groups," the embassy cable to the State Department concluded, may be from areas "where the Burmese military might have had a freer hand out of range of the direct oversight of the oil companies."
Executives from Unocal and Total take pride in their efforts to improve the lives of thousands of villagers.
The companies have spent about $1 million a year to help build schools, medical clinics, a pig farm and other facilities. They hired and trained teachers and midwives. And they brought the first doctors to the area to treat malaria victims, inoculate children and perform emergency caesarean sections.
Some of the companies' efforts to reach out to locals, however, are being used against them in court.
Total, for instance, paid porters engaged by the military. It also gave them food as well as physical exams, according to an embassy cable. John Doe 8, for one, said a doctor brought in by Total once handed him 600 kyat, the equivalent of about $10.
Though Unocal and Total paint such acts as gestures of goodwill, the plaintiffs portray them as evidence that the companies were in league with the Tatmawdaw.
In February 1996, Herve Chagnoux, then Total's regional coordinator, captured what he saw as the ambiguity. When it came to the military's use of conscripted labor, he wrote to Unocal, "let us admit between Unocal and Total that we might be in a gray zone."
Others believe that the situation was more black and white.
John Haseman, a former military attache at the U.S. Embassy in Yangon who worked as a consultant to Unocal, told the company in December 1995 that there was no doubt "egregious human rights violations have occurred and are occurring now" in the Tenasserim.
In a letter, Haseman said that Unocal's reputation had been harmed when one of its spokesmen was quoted as saying the company was satisfied with the Myanmar military's assurances that human rights weren't being abused in the pipeline region.
That, Haseman wrote, made Unocal appear "at best naive and at worst a willing partner in the situation."
The Unocal lawsuits were filed in 1996. Jane Doe 1 and her family live on the food her husband receives in exchange for odd jobs, often no more than a tin or two of rice a day.
Before fleeing to Thailand, "I had my own farm, my rice fields, my kettles, my house," she said, as she fed her youngest, a daughter born last year, a bottle of sugar water. "We never had hunger. We had extra food. Now I live on nothing. We used to own our land, and they took it away. They made a big hole in our lives."
Unocal says her situation, tragic though it be, isn't the company's doing.
"Unocal is not responsible for all bad things that happen in Burma" just because it invested in a pipeline project there, said Daniel Petrocelli, a Los Angeles lawyer who represents the company. "That's the logical extension of this case and of the story of this woman and her family.
"How can Unocal be responsible for that?"
Tomorrow: Unocal case arises from an obscure 1789 law.