Moving beyond the dichotomy or not?

Two avenues therefore are open: to use criminal law to prosecute the TCO or, where there is no willingness on the part of the state or an inability owing to lack of law, a rights violation can be identified through tort law or specialized committee. Recent examples illustrate this. In 2002, the African Commission on Human and Peoples’ Rights decided whether Nigeria had violated various rights, protected under the African Charter on Human and Peoples’ Rights, of members of the Ogoni people through the operations of its national oil company in partnership with a multinational oil company.[1] [2] [3] [4] The rights engaged were the right to the best attainable state of physical and mental health, to a generally satisfactory environment favourable to their development, to freely dispose of their wealth and natural resources, to property, and to family^7 As the Commission found in considering the Merits, a state has a duty under IHRL to respect, protect, promote, and fulfil the rights contained within a human rights treaty, and under the African Charter those include under Article 2(1) the taking of ‘steps ... by all appropriate means, including particularly the adoption of legislative measures/18 The Commission found Nigeria wanting in all respects of its duty; the absence of national legal options in this instance meant the alternative avenue of a specialized human rights committee was needed. A second example would be the cases brought under the Alien Tort Statute in the USA: where local jurisdictions have not been able or willing to prosecute human rights violations, victims have brought suit in a foreign jurisdiction to seek accountability^

The vanguard case under this law, Filartaga vPena-Irala, concerning the torture and death of a member of the complainants’ family by a local police captain in Paraguay; when attempts at criminal prosecution in Paraguay itself were corrupted, and the accused moved to New York, the Filartagas brought a wrongful death action against the

Pena-Irala.50 The success of this case—holding to account a state official for a violation under IHRL that took place extra-territorially—led to a steady stream of similar actions, and whilst some may criticize this on the grounds of forum shopping, it is an unfair accusation when the alternative is no accountability owing to inadequate, nonexistent, or corrupt local laws or processes.51

  • [1] Social and Economic Action Rights Centre and Centre for Economic and Social Rights v Nigeria,African Commission on Human and Peoples’ Rights, ACHPR/COMM/155/96, Decision on 13-27October 2001 [Ogoni Decision].
  • [2] Respectively Arts 16, 24, 21, 14, and 18(1), African Charter of Human and Peoples’ Rights.
  • [3] Ogoni Decision, cited in note 46 above, paras 43-8.
  • [4] Judiciary Act of 1789, Ch. 20, p. 9(b), 1 Stat. 73, 77 (1789), codified at 28 USC s. 1350 (‘all causeswhere an alien sues for a tort only (committed) in violation of the law of nations’). Kiobel v Royal DutchPetroleum Co., 133 S.Ct 1659 (2013).
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