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A key part of litigation is to identify the party that you can sue.
There is little point in taking action against someone unless;
The person or entity against whom action is brought is often known as the “defendant” (The term relevant for your legal action will depend upon the legal system and type of action).
The appropriate defendant may not be the one that first comes to mind. It may not even be the person who actually did the acts you are complaining of.
The range of appropriate defendants for your action might include the following;
An obvious target to bring a claim against is the person or entity that is directly responsible for the harm that has been caused.
This could include:
a) An Individual or Group
If you are discriminated against by an individual (e.g. you are the victim of a hate crime), the starting point is to bring civil or criminal proceedings against the person who have threatened/assaulted you.
b) A Government Department, Public Authority or Institution
For further information, see section 6 on “Countries”
c) A Corporation.
After being subjected to forced labour by a multinational ship repair company, 3 exploited Cuban workers brought a civil case against the company before a US court and were awarded $80 million in compensation for their severe physical and psychological injuries.
Claims can also be brought companies. Many corporate groups have a complex structure.
A “parent company” is that which owns the overall company, including all the subsidiaries. Whereas a “subsidiary” is a more localised company under the ownership of a bigger parent company.
The main company (the “parent”) may be situated in one country, while subsidiaries of that company may be based elsewhere, perhaps where the harm actually occurred. Claims can often be brought against both.
Although the subsidiary may be directly responsible for the harm caused, it may be possible and useful to sue the parent company, for example, if the subsidiary caused damage while acting on instructions of the parent.
This is a complex issue, and often involves analysis of the laws of different countries (more information on this can be found here).
In Brazil, multinational Odebrecht was successfully held liable for human trafficking and slave labour in the operations of its subsidiary in Angola (Biocom), paying $13 million in compensation to victims.
Sometimes a case can be brought not only against a company, but against the stakeholders connected with it.
A “stakeholder” refers to anyone with an interest or connection with a company. These might include:
a) Directors and Senior Management
In Brazil, prosecutors have filed homicide charges against top executives of BHP Billiton, a mining giant, for the collapse of one of their dams which destroyed communities and killed 19 people.
b) Shareholders and Investors
In US courts, Indian farmers are currently bringing an action against IFC, an international financial institution, for its investment in a coal mine which caused severe environmental damage to their lands.
c) Bankers, Lenders, Auditors and Insurers
Those provide key financial services to a group/company committing wrongful acts can be sued in some circumstances.
In US courts, Jordanian-based Arab Bank were found liable for providing financial services to terrorist organisations and ordered to compensate victims.
d) Contractors or Sub-Contractors
In US and Ecuadorian courts, farmers have sued DynCorp (a private contractor the US and Colombian government authorised under a plan to eradicate drug production) for its widespread use of toxic anti-drug sprays which caused local farmers severe physical and property damage.
e) Successors to its Property, Interests, Rights or Liabilities
A “successor” is a person/company who inherits the property, rights and/or liabilities of another person/company, such as a company which rebrands itself under a new legal name and takes the assets of the old company (A “liability” is something a company is responsible for, such as a debt to another company).
In Papua New-Guinea, courts have allowed BHP Billiton, a mining giant, to be sued for the environmental devastation caused by its predecessor, BHP.
An “agent” is a person/company who acts on behalf of another person/company. It is often the case one company will act on behalf of another in part of its operations.
An “accessory” is a person/company who gives assistance to another person/company in their performance of an act.
In addition to those directly responsible for acts or harm, agents and accessories can be considered liable for the damage caused.
In Germany and the Democratic Republic of Congo, cases are being brought against senior management of a Swiss-German timber company (Danzer) for financial and logistical support they gave Congolese security forces as they committed war crimes against local villagers.
For example, if land is wrongfully taken by party A, it may be possible to bring a claim against party B who now owns, or has bought products grown on, the wrongly taken land.
This is particularly likely if B knew that the land had been wrongfully acquired.
In English courts, Cambodian villagers are suing Tate & Lyle (a sugar giant) for the alleged acts of a Cambodian sugar company who violently evicted the villagers from their rightful lands. The contracts Tate & Lyle have with these companies and the profits they have made from the sale of their sugar mean they could be sued for compensation.
Where a country is responsible for or connected to the harm that has been caused, it may be an appropriate defendant.
a) Countries Have an Obligation to Respect Human Rights
Countries have a duty not to violate the human rights of people in their territory or that they are otherwise responsible for.
This means an action could be brought against a country when:
i) It is directly responsible for a harm caused in its territory.
This includes human rights violations committed by public bodies or officials.
In the European Court on Human Rights, Kurdish villagers successfully brought a case against the Turkish government for forcefully removing them from and destroying their homes. The Court ordered Turkey to pay compensation and stop their practices of forceful eviction.
ii) It is directly responsible for harm caused outside its territory, but that it was responsible for.
This includes human rights violations in a foreign territory it controls, or against an individual under its control.
Russia has been held liable for human rights abuses of local authorities in Transnistria, a region of Moldova under its effective control. While the UK has been held liable for human rights abuses in Iraq when victims were under the control of its army.
iii) It actively and knowingly assists or encourages the wrongful acts of other countries and corporations.
This assistance can include logistical, military or financial support.
In the International Court of Justice, the USA were held liable for giving military, logistical and financial support to paramilitary groups in Nicaragua who committed gross human rights abuses. The US were then ordered to pay compensation.
b) Countries Have an Obligation to Protect Human Rights
Countries have a duty to protect people in their territory, or that they are otherwise responsible for, from the human rights violations of others.
This means an action could be brought against a country when:
i) It fails to protect individuals within its territory from harms caused by other individuals, corporations or countries.
This may be by its failure to make laws/policies protecting people’s rights, enforce existing laws, regulate the activities of corporations, or investigate abuses.
The Inter-American Court on Human Rights held Guatemala liable for its failure to protect street children from abuse and provide for their well-being. The Court ordered Guatemala to pay compensation, establish a school for street children, and provide for their social care and security generally.
ii) It fails to protect individuals (anywhere) from harms caused by individuals or corporations it has a degree of control/influence over and, therefore, would be in a position to regulate.
This is a developing area of law. It could be used to sue countries for the abuses of corporations with which it provides export credit agencies or licenses.
However, it can be difficult to bring a legal action against a country in some circumstances. For instance, countries and senior public officials (e.g. the president etc) often have immunity, meaning they are protected from claims in the courts of other countries.
In your case, multiple persons or entities could be involved in the wrongdoing, contributed to the harm, or failed to act when they should have.
If this is the case;
Case Study: Shell in Nigeria
For decades, Shell oil and the Nigerian government have contributed to human rights abuses and environment devastation in the Niger Delta.
Responding to the injustice, different community groups and organisations have taken PIL cases against the government, Shell and their subsidiaries, in different courts across the world.
A combination of these efforts has brought communities closer to achieving justice.
This shows you may have to be creative in deciding who to bring your claim against.
When making this decision, think about the following;