97 Corrie et al v. Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts Grietje Baars* 1 INTRODUCTION1 In 2005 an attempt was made at enforcing international law against an American corporation said to be complicit in war crimes, extrajudicial killing and cruel, inhumane and degrading treatment committed by the Israeli military. The civil suit, brought in a U.S. court, was dismissed without a hearing, in a brief statement mainly citing reasons of political expedience. The claimants in Corrie et al v. Caterpillar2 include relatives of several Palestinians, and American peace activist Rachel Corrie, who were killed or injured in the process of house demolitions carried out using Caterpillar’s D9 and D10 bulldozers. They brought a civil suit in a U.S. court under the Alien Tort Claims Act,3 for breaches of international law, seeking compensatory damages and an order to enjoin Caterpillar’s sale of bulldozers to Israel until its military stops its practice of house demolitions. An appeal is pending and will be decided on in the latter half of 2006. * PhD Candidate, University College London and Coordinator, International Criminal Law at the Institute of Law, Birzeit University. 1 The author thanks Victor Kattan, Jason Beckett, Jörg Kammerhofer, Akbar Rasulov, André de Hoogh, Anne Massagee, Reem Al-Botmeh and Munir Nuseibah for their helpful comments and suggestions, and Maria LaHood of the Center for Constitutional Rights in New York for providing the documentation. Any mistakes are the author’s own. This article is an elaboration of a paper presented at the conference, “The Question of Palestine in International Law” at the School of Oriental and African Studies in London, on 23-24 November 2005. 2 Cynthia Corrie and Craig Corrie, et al v. Caterpillar, Inc., a Foreign Corporation (“Caterpillar”) Case No. CV-05192-FDB. Documents on file with the author, and available from: http://www.ccr- ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg& Content=546 3 28 U.S.C. § 1350. 98 Articles 2 THE CATERPILLAR CASE IN ITS CONTEXT The idea of a number of Palestinian and American families taking the manufacturer of the machines, that were used in the killing or injury of their relatives by the Israeli military, to court in the United States, may seem far fetched in more than one way. Why sue a foreign supplier to the Israeli army, in a foreign court? What did the U.S. company have to do with deaths and injuries that occurred half-way around the world? This introductory section shows how such actions are feasible, and plausible. I will discuss the context in which the facts complained of occurred, and the legal and political reasons (such as the “Intifada Law”4) why a Palestinian claimant may resort to a foreign court. Caterpillar commenced in March 2005. The plaintiffs are represented by the Center for Constitutional Rights in New York, and the Seattle University Ronald A. Peterson Law Clinic. On 29 November 2005 the District Court for the Western District of Washington, Tacoma Division, dismissed the case.5 The plaintiffs filed a Notice of Appeal on 20 December 2005 and on 20 March 2006 filed their Appellants’ Opening Brief with the United States Court of Appeal for the Ninth Circuit.6 The defendant company, Caterpillar, is due to file its response in June 2006 but has been granted an extension. The Caterpillar litigation takes place in the context of house demolitions and civilian deaths and injuries caused by the Israeli military in the Occupied Palestinian Territories (“OPT”).7 In particular, the complaints that form the basis of the litigation arose during the April 2002 Israeli incursions into the West Bank population centres of Nablus and Jenin Refugee Camp, and two major operations in Gaza, in Rafah in March 2004, and Khan Yunis Refugee Camp in July 2004. The plaintiffs in the Caterpillar case are four Palestinian families and the parents of Rachel Corrie, the American peace activist who was killed in Rafah in March 2003. Rachel Corrie’s death has been much publicised and has even formed the subject of a play, “My Name is Rachel Corrie”, that was directed by Alan Rickman, a famous U.K. actor, and has toured theatres around the world, although it was recently barred from appearing in New York City.8 Rachel was one of a number of “Western” volunteers who use the privilege of their 4 The popular nickname of the Civil Wrongs (State Responsibility) (Amendment No. 7) 2005, 5712-1952, Available in English from Adalah, The Legal Centre for Arab Minority Rights in Israel, at http://www.adalah.org/eng/complaw.php . 5 Order granting defendant Caterpillar’s motion to dismiss, USDC Western District of Washington at Tacoma, filed 11/22//2005 (“Order”). 6 Appellants’ Opening Brief, United States Court of Appeals for the Ninth Circuit (“AB”): available from the Center for Constitutional Rights: http://www.ccr-ny.org/v2/legal/ corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. 7 For a detailed description of the Israeli military’s activities in the Occupied Palestinian Territories, see, for example, the daily, weekly, and annual reports of the Palestinian Centre for Human Rights in Gaza, available at http://www.pchrgaza.org, and the Palestinian Monitoring Group: http://www.nad-plo.org/main.php?view=pmg_pmg. 8 “A Message Crushed Again – Three years after American activist Rachel Corrie died under an Israeli bulldozer in Gaza, her words are being censored for political reasons.” LA Times, by Katharine Viner, 1 March 2006..