Corporate Complicity in Human Rights Abuses: Insights from CAL's Panel Discussion

(Minghui.org) In a groundbreaking event, the Corporate Accountability Lab orchestrated a comprehensive two-part panel discussion in November 2023, aimed at dissecting the emerging trends in corporate accountability litigation. This pivotal forum provided a platform for human rights advocates and legal practitioners to exchange insights on the dynamic interplay between global corporate practices and human rights enforcement. The deliberations centered on the evolution of legal strategies to hold corporations to account for their impact on human rights and the environment, fostering an in-depth understanding of the complex legal challenges and advancements in this field. This assembly of experts highlighted significant legal battles and landmark rulings, serving as a critical touchstone for practitioners committed to the pursuit of justice in the realm of corporate accountability.

The Doe I v. Cisco Systems, Inc. case filed and litigated by the Human Rights Law Foundation (HRLF), Washington D.C. (primarily) with assistance from Schonbrun DeSimone Seplow Harris & Hoffman, LLP, Venice, California, was one of the cases selected for review based on the strength of the case.

The Human Rights Law Foundation, an organization focused on leveraging the law to protect Chinese dissidents from torture and other egregious human rights violation, has a history of filing complex cases that prevail. These include Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004); Jingrong et al, v. CACWA et al., 311 F.Supp.3d 514 (2018) as well as in Spain on behalf of Tibetan Buddhists.

The Corporate Accountability Lab (CAL) is a pioneering organization founded in the US in 2017, dedicated to utilizing the law to hold corporations accountable for abuses against human rights and the environment globally.

The Panel Discussion

The first panel discussed Al Shimari v. CACI, a lawsuit on behalf of Iraqi torture victims against U.S. government contractors, and Doe v. Cisco Systems, a lawsuit on behalf of Falun Gong practitioners against an American technology company. The second panel discussed Ratha v. Phatthana Seafood, a human trafficking lawsuit on behalf of Cambodian nationals against Thai and American corporations working in the seafood industry, and Doe v. ExxonMobil, a lawsuit on behalf of Indonesian nationals against an American oil company and its affiliates.

During the first panel, counsel in Cisco, Terri Marsh, described how the case is brought by several Falun Gong practitioners who were subjected to arbitrary detention, torture, and forced conversion in China with the assistance by Cisco. Ms. Marsh emphasized Plaintiffs’ allegations that China sought out the assistance of western technology companies to create a tool to advance its persecution against Falun Gong, and Cisco promised to assist, ultimately designing, and developing multiple sophisticated technological features to facilitate the identification, apprehension, and forced conversion of practitioners.

In particular, she noted:

- The case was brought on behalf of thirteen practitioners of Falun Gong who were identified, apprehended, and tortured by China after engaging in Falun Gong religious activity on the internet which was captured by a high-tech surveillance apparatus called the Golden Shield.

- Falun Gong is a religion based on the tenets of truthfulness, compassion, and tolerance that originated in China in the 1990s. As the religion grew in popularity, the Chinese Communist Party launched a brutal crackdown with the goal of forcing practitioners to renounce their beliefs.

- In the 1990s, China sought the assistance of western technology companies in creating a total surveillance apparatus because Chinese engineers lacked the relevant expertise. In planning this “Golden Shield” project, Chinese authorities were clear that they needed features to facilitate the crackdown on Falun Gong.

- Plaintiffs allege that Cisco answered this call, viewing it as a lucrative business opportunity to gain a foothold in the Chinese market. To that end, Cisco designed and developed “first-of-their-kind features” to aid in identifying, apprehending, and torturing Falun Gong believers. These included:

- A library of patterns of Falun Gong internet activity which enabled large-scale real-time alerts and automated surveillance.

- Databases of detailed personal profiles of practitioners accessible to officials at the detention centers and psychiatric hospitals where Falun Gong practitioners were subjected to forced conversion.

- One product that Cisco advertised as the “only product capable of recognizing over 90% of Falun Gong pictorial information.”

- The Plaintiffs or their family members were each harmed after Cisco developed these features for China. Three of the Plaintiffs, for example, were picked up as part of the same investigation in 2001. During a sham trial of one of those individuals, Public Security relied on “evidence” of Falun Gong internet activity collected via the Golden Shield. In addition to brutal physical torture (for example, beatings with electric batons), Chinese security also used personal information collected from the Golden Shield to attempt to force the Plaintiffs to renounce their beliefs.

Paul Hoffman, another lawyer on the case, summarized the recent opinion from the Ninth Circuit Court of Appeals. Mr. Hoffman noted that the panel affirmed that claims based on aiding and abetting are permissible under the Alien Tort Statute and held that an essential element of the standard for aiding and abetting is knowledge that assistance facilitates abuses. On the longstanding issue of corporate liability, Mr. Hoffman explained that the panel recognized five Justices of the U.S. Supreme Court agree that corporations are not immune from suit. And Mr. Hoffman described how the panel weighed potential foreign policy concerns in the suit, ultimately finding that there was no reason to dismiss the case on that basis.

Several panelists emphasized the strength of our evidence and praised our evidence team as one of the very best.

Summary

In this pivotal panel discussion hosted by Corporate Accountability Lab (CAL) in November 2023, legal experts and human rights practitioners convened to dissect recent developments in corporate accountability litigation. A particular focus was on the significant case of Doe I v. Cisco Systems, Inc., where the U.S. Court of Appeals for the Ninth Circuit allowed Chinese Falun Gong practitioners to advance their claims against the American tech giant Cisco Systems under the Alien Tort Statute (ATS).

These practitioners alleged that Cisco aided and abetted the Chinese government in human rights violations by creating surveillance technology used to target and persecute them. The Ninth Circuit's ruling clarified that U.S. corporations could be held liable under the ATS, setting a precedent for corporate accountability. The panel also shed light on other prominent cases, emphasizing the evolving legal landscape where multinational corporations face increased scrutiny for their role in human rights abuses.

The Ninth Circuit's decision, which hinges on the standard of knowledge rather than intent for aiding and abetting claims, marks a crucial step in ensuring justice for victims of corporate complicity in human rights violations. As the Defendants seek an en banc rehearing and possibly Supreme Court review, the implications of this case reverberate through the corridors of international law and corporate governance.

This panel's discussions underscore HRLF’s ongoing mission to utilize legal frameworks in safeguarding human rights and environmental standards against corporate malpractices globally.

About the Doe I v. Cisco Systems, Inc. Case

Doe I v. Cisco Systems, Inc. is a significant legal case that addresses human rights concerns related to the role of U.S. corporations in facilitating abuses abroad. In this lawsuit, Chinese practitioners of Falun Gong brought claims against Cisco Systems, Inc., a prominent American technology company. The plaintiffs accused Cisco of aiding and abetting human rights violations perpetrated by the Chinese government against them.

Indeed, the Doe I v. Cisco Systems, Inc. case is a landmark in the field of corporate legal accountability and human rights, highlighting the complex interplay between international human rights norms, corporate actions, and U.S. legal frameworks.

In July 2023, the U.S. Court of Appeals for the Ninth Circuit made a significant decision in this case. The court ruled that Chinese practitioners of Falun Gong could proceed with claims of aiding and abetting human rights violations against Cisco Systems. This decision is particularly notable for its implications regarding the Alien Tort Statute (ATS).

Key aspects of the ruling include:

1. Corporate Liability Under ATS: The Ninth Circuit clarified that U.S. corporations can be sued under the ATS. This interpretation aligns with the Supreme Court's position in the Nestlé USA case, where it was implicitly acknowledged that U.S. companies are appropriate defendants under this statute.

2. Aiding and Abetting as a Cause of Action: The court confirmed that "aiding and abetting" human rights violations is recognized as a violation of international law, thereby actionable under the ATS. This establishes that entities can be held accountable not just for direct violations, but also for indirectly facilitating such abuses.

3. Standard of Knowledge for Aiding and Abetting: The Ninth Circuit adopted a more accessible standard of "knowledge" rather than "purpose" for aiding and abetting. This means that a company’s knowledge of its assistance in the commission of human rights violations is sufficient for liability, which is easier to prove than a company's purposeful engagement in such violations.

4. Application of ATS for U.S. Actions: The court held that for an aiding and abetting claim under the ATS, the actions constituting substantial assistance need to have occurred largely in the United States, which was found to be the case with Cisco.

Future of the Cisco Case

Following the July 2023 court ruling, the Defendants in the case asked for rehearing by an “en banc” panel of the Ninth Circuit. That request is still pending. If the request is denied, the Defendants will have the chance to ask the U.S. Supreme Court to review the decision of the Ninth Circuit before the case returns to the district court for further proceedings.

The Supreme Court will have several options: It can grant review and address all outstanding issues, which will be explored in considerable depth in future articles, or it can deny a grant of certiorari and decline to hear the case, in which case, the determinations of the 9th Circuit will shape the case as it proceeds to trial.

The Cisco case, due to its significant implications for international human rights law and corporate accountability, is expected to generate considerable debate, news coverage, and public interest, especially if it escalates to the Supreme Court level. This will also bring increased global attention to the plight of Falun Gong practitioners.