The threat or use of violence to force people out of their communities can be a crime under international law. A company may face liability if it has gained access to the site on which it operates, where it builds infrastructure, or where it explores for natural resources, through forced displacement.
Depending upon the circumstances, forcible displacement may be a crime against humanity or a war crime under customary international criminal law, including the Geneva Conventions and the Rome Statute of the International Criminal Court. There are numerous provisions of these conventions which also prohibit the intentional directing of attacks against civilians.
Under domestic laws, acts amounting to forced displacement may also be actionable under tort laws (civil actions), or may violate domestic statutes or constitutional provisions which protect persons from being deprived arbitrarily of their property rights (e.g. indigenous peoples). The International Finance Corporation Guideline 5 Involuntary Resettlement (April 2006) outlines private sector responsibilities under government-managed resettlement.
Case 1.1 Tokyo Electric Power Services in Indonesia
A Japanese company was sued in Japan for its involvement in the alleged involuntary resettlement of people in Indonesia prior to the building of a dam.
This is an ongoing case commonly referred to as the Dam Kotopanjang (Dam Kotapanjang) Litigation. The lawsuit was filed with the Tokyo District Court in September 2002 by plaintiffs representing Indonesian plaintiffs against the Tokyo Electric Power Services Company, the Japan International Cooperation Agency (JICA), the Japan Bank for International Cooperation (JBIC), and the Japanese Government.
The plaintiff’s claims relate to a project in Sumatra, Indonesia. They allege that
(i) the defendant company committed illegal acts in the course of conducting a feasibility study, while creating the detailed design based on the study, and while performing supervision; and
(ii) as a result, plaintiffs suffered harm related to involuntary resettlement in violation of international guidelines, resulting in a variety of social, physical and economic harms accompanying the resettlement, including the destruction of the local communities and the destruction of the natural environment.
News reports indicate that this case marks the first time Japanese overseas development assistance (ODA) has been legally challenged by people adversely affected by projects it has funded. A total of 3,861 affected villagers filed a suit seeking USD 165 million in compensation for losses caused by the dam project. In 2003 the case was joined by an additional 4,535 people and an Indonesian environmental NGO. The plaintiffs claim that as many as 23,000 people were forcibly resettled or partially lost their property due to the dam construction.
Under the Japanese Civil Code, Art. 715, and the Corporation Act, Art. 350, claims for torts may be brought against individuals and the related business entities. Plaintiffs will likely face hurdles in asserting the jurisdiction of Japanese courts and the applicability of Japanese law over this case. Plaintiffs claim that a material portion of the alleged torts occurred in Japan and that Japanese law should apply.
Status
Since 2002, the case has had a series of hearings at the Tokyo District Court and Tokyo High Courts. In September 2009, the Tokyo district court rejected the plaintiffs argument on the grounds that the harm was an internal affair within Indonesia. Plaintiffs indicated they will appeal.
Sources for this summary
Business and International Crimes-Japan
Additional information from news media sources such as The Yomiuri Shimbun, AFP, and Rueters as summarized in Down to Earth IFIs Update, No 28, September 2002
Other Relevant Cases
Other cases which have alleged company involvement in the expulsion of people from their communities include, for example;
Cal et al. v Attorney General of Belize et al
Belize, Action No. 171 of 2007
The Supreme Court of Belize found that timber and oil grants and leases issued by the Government infringed indigenous property rights under the Belize constitution. In a judgment issued on October 18, 2007, the Supreme Court found that the applicants’ customary land tenure qualified as protected property rights under the Constitution of Belize, and that the issuance of leases, grants and concessions to these lands violated the equality provisions of the Constitution. The Defendants were enjoined by the Court from issuing permits for further exploitation of the lands in question without the consent of the claimants
John Doe I et al v. Unocal Corp
Plaintiffs included Burmese citizens who alleged that they suffered abuses committed by military officials hired to provide “security” to a pipeline project including, inter alia, forcible dislocation from their homes. In December 2004, in a court-approved settlement, the two sides agreed that Unocal would pay the plaintiffs an unspecified amount of money and fund programs to improve living conditions for people affected by the pipeline, as well as those “who may have suffered hardships”. For more details see case summary below under Forcing People to Work.