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Who Can I Bring Legal Action Against?

A key part of litigation is to identify the person or entity (“the party”) that you want to sue.

There is little point in taking action against someone unless:

(i) There is a court or tribunal that can hear the case against them (see Where Can I Take Legal Action?); and

(ii) You have a real chance of getting and enforcing a court order against them, if that is your main objective (see How Can I Enforce a Court Order?)

The party 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:

1

The Individual Directly Responsible

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 police officer has demanded that you pay him a bribe;
  • If an individual has allowed toxic waste to pollute your land; and
  • If you are a victim of domestic abuse, a criminal investigation could be started against the abuser.
2

Corporations & Businesses

A business can be any organisation that engages in commercial activity (generally activity to make money or a profit). Businesses can take many forms. All businesses can negatively impact human rights. Businesses or people within a business could be the appropriate defendant in your case.


(a) Taking Action Against a Corporation as a Legal Entity


If the harm you are complaining of was caused by the actions of a company or employees/agents of a company, another option is to take legal action against the corporation as an independent legal entity.

Example: Curacao Drydock Lawsuit
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.

There are many different types of businesses or corporations that could have caused you harm. For example:

  • Sole traders or small partnerships; or
  • Big multinational corporations that operate in different countries and have complex structures.

It’s key that you identify the correct business entity that is responsible for the harm in your case.


(b) Taking Action Against Stakeholders in a Business


A “stakeholder” refers to anyone with an interest or connection with a company. You could potentially take action against any of the following “stakeholders” in a corporation:

 

(i) Directors and Senior Management

Example: BHP Billiton & Vale Lawsuits (Brazil)
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.

 

(ii) Shareholders and Investors

Example: IFC Lawsuits (USA)
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.

 

(iii) Bankers, Lenders, Auditors and Insurers

Those provide key financial services to a group/company committing wrongful acts can be sued in some circumstances.

Example: Arab Bank Lawsuit (USA)
In US courts, Jordanian-based Arab Bank were found liable for providing financial services to terrorist organisations and ordered to compensate victims.

 

(iv) Contractors or Sub-Contractors

Example: DynCorp Lawuits (USA/Ecuador)
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.

 

(vi) 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).

Example: BHP Billiton Lawsuit (Papua New Guinea)
In Papua New-Guinea, courts have allowed BHP Billiton, a mining giant, to be sued for the environmental devastation caused by its predecessor, BHP.


(c) The A4J Business and Human Rights Guide


If you want to find out more about taking legal action against corporations, go to the A4J Business and Human Rights Guide

This will help you answer the following questions:

  • What are businesses? What types of businesses exist?
  • What human rights responsibilities to businesses have?
  • What types of legal action could I take against a business?
3

Agents & Accessories

In addition to the individual or corporation that’s directly responsible for harm, you may be able to take legal action against persons or corporations that are agents or accessories.

  • 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. For example:

  • Land illegally cleared not by a local ministry, but by a local private security firm hired to do the work. The private firm (the agent) may be liable, as well as those who have hired them.
  • A big company gives financial or logistic support to the government or private security firm clearing the land. The company, having assisted and encouraged the clearing of the land, can also be held liable.

Example: Danzer Lawuits (Germany/DRC)
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.

4

Those Who Have Gained From the Wrongs of Others

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.

Example: Tate & Lyle Lawsuit (UK/Cambodia)
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.

5

The State


(a) What Is the State?


The State is the sovereign political entity that we commonly refer to as a “country” or a “nation”. The State is made up up thousands of different components, all of which could be the subject of legal action. You can find key examples below:

 

(i) The State as a Whole

In some cases, it is possible to bring legal action against the abstract notion of the State as a whole (e.g. the State of India).

Key Concept: State Responsibility

At international law, the circumstances when you may be able to hold the state responsible for an action is governed by a concept called “State Responsibility“. This sets out the circumstances when an action or an individual or body can be attributed to the State as a whole.

For more information, see the International Law Commission’s Articles on State Responsibility. The national laws of many countries reflect these principles.

 

(ii) Public Officials or State Agents

These are the individuals that act on behalf of the State. These include police officers, social workers and doctors.

 

(iii) Public Bodies and Authorities

These are institutions that have been created to carry out State functions or public services. These include healthy authorities and hospitals, education boards and schools, police departments.

 

(iv) Government Departments and the Executive

These are part of government. They are responsible for setting and implementing government policy over a number of diferent areas. For example, the Department of Justice or the Ministry of Agriculture.


(b) When Can I Take Action Against the State?


The State, public officials and public bodies all have legal obligations that require them to do certain things and not do certain things. These obligations form what is called “public law“. To find out more about public law, see What Laws Can I Enforce?.  The key message for this section is that when the State breaches public law, you may be able to take an action against the State as a whole or the responsible official/body.

Actions could be brought against a State body when you are challenging the following:

 

(i) Government Policy or Law

If there is a government policy or law that has harmed you or interfered with your rights, you could bring legal action against:

  • The government department that was responsible for creating the policy or law; or
  • The State as a whole, which is responsible for the acts of government departments.

 

(ii) Acts of a Public Official

When a public official commits an unlawful act, it may be possible to take legal action against:

  • The public official directly;
  • The public body, public authority or government department that the public official works for; or
  • The State as a whole, which is responsible for the acts of “State agents”.

Example: Akdivar v Turkey
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.

 

(iii) Omissions of the State

When any State body has an obligation to take a certain action and it fails to do that action, legal action can be brought against:

  • The public official or public body that had a specific obligation to act; or
  • The State as a whole for violating a general obligation to act (e.g. the obligation to protect human rights).

Example: Morales v Guatemala
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.

 

(iv) Acts of a Private Body Carrying Out a Public Function

Public functions are services or areas of responsibility that are traditionally reserved for the State. These include law enforcement, military activity, public health and education.

However, in many countries, some public functions have been privatised or outsourced so private bodies now carry out those activities (e.g. private hospitals or education providers, private military contractors or security providers).

But, even if a private actor undertakes a public function, the State can still be held responsible that unlawful acts committed by the private actor.

Example: Carlos Cabal v Australia

A complaint was brought to the UN Human Rights Committee for inhumane conditions in a detention centre in Australia that was run by a private contractor. The HRC held that the contracting out to the private sector of core State activities involving the use of force and the detention of persons does not absolve a State party of its obligations under the International Covenant on Civil and Political Rights.

 

(iv) Acts of Private Individuals or Groups that the State Controls

Even if private individuals or groups are undertaking activities that are not considered public functions, the State could be held responsible if it exercises “effective control” over the private individual or group. A state could exercise effective control where it orders, commands or directs the actions of an individual or group.

  • For example, where a State pays, sets the strategy of, and orders the specific actions of a non-state militia group, it may be possible to hold the State responsible.

 

(vi) Assistance

Legal action could also be taken against a State when it is not directly or indirectly responsible for an act/omission, but has provided assistance to another State or private actor to commit an action. This assistance can include logistical, military or financial support.

Example: Nicaragua v The USA

Nicaragua brought a case before the International Court of Justice complaining of US involvement during its civil war. It argued that the US was responsible for crimes against humanity and war crimes committed by a paramilitary group called the “Contras” because of the level of control it had over the group.

Although the ICJ found that USA did not have effective control over the Contras (and could not be directly responsible for their actions), the Court found that the US was liable for giving military, logistical and financial support to paramilitary groups in Nicaragua. The US were then ordered to pay compensation.

 

(vii) Actions of the State Outside its Territory

In some cases, it may be possible to hold the State responsible for actions committed outside its territory or where its actions cause impacts outside its territory. There is growing acceptance that governments human rights obligations extend to persons outside their borders. These obligations could arise in the following circumstances:

  • Where one State occupies or controls territory outside of its borders. In these circumstances, the State will owe the full range of its human rights obligations to persons who live in territory it controls

Example: Ilascu v Moldova and Russia
Russia has been held liable for human rights abuses of local authorities in Transnistria, a region of Moldova under its effective control.

  • Where State agents or public officials exercise control over an individual outside of its territory. For example, the State will be responsible for violations committed by its armed forces outside of its territory.
  • It may also be possible to hold a State responsible where actions within its territory cause harm outside its territory (these can be called “extraterritorial effects”). For example, where industrial activity in one state caused pollution in another state. 

Key Resource: The Maastricht Principles on Extraterritorial Human Rights Obligations
If you would like to learn more about States’ extraterritorial human rights obligations, the Maastricht Principles are a great place to start. They are a set of principles created by a group of experts who outline the circumstances in international law where a State can be responsible for human rights violations outside its borders.


(c) Limitations


There are certain legal limitations where legal actions cannot be brought against States or public officials.

 

(i) State Immunity

State immunity is a legal doctrine that limits the ability of courts in one country from hearing legal actions brought against foreign states. As a general rule, courts in one cannot hear cases that are complaining about the acts of foreign states. For example, a Pakistani citizen cannot use Pakistani courts to hold the United Kingdom liable for unlawful acts.

However, there are exceptions to state immunity where people can often use courts in one country to hold a foreign state liable. In some countries, cases can be brought against foreign States when:

  • They concern “commercial acts“. For example, where a State is involved in financial transactions or business ventures; and
  • They involve serious human rights violations, such as crimes against humanity and war crimes.

Example: Simoncioni v Germany

The Italian Constitutional Court ruled that Italian courts could hear cases against Germany for WWII human rights abuses. They ruled that the right to judicial protection for human rights violations could not be sacrificed by the law of State Immunity.

However, it is important to remember that this relates to your ability to take actions against a foreign State in the national courts of another country. It may be possible to take action against a foreign State in a regional human rights court or international human rights body. For more information, see Where Can I Take Legal Action?

 

(ii) The Immunity of State Officials

In some cases State officials have immunity. Where this is the case, legal action cannot be taken against them in the national courts in another country.

All officials will enjoy immunity where their actions involve an exercise of sovereign authority. For example, where they are representing their government. A key aspect about this type of immunity is that it lasts forever.

However, a key exception to the immunity of State officials is where international crimes, such as crimes against humanity or war crimes, are committed.

Example: The Pinochet Cases

UK courts held Augusto Pinochet, the ex-dictator of Chile, liable for torture committed during his rule. The court decided that individuals could not enjoy immunity for torture after they left office.

Certain high level officials also enjoy a different type of immunity for all their actions but only while they are in office. For example, presidents and key ministers enjoy this type of absolute immunity.

However, remember that this only applies to cases in foreign courts. High level ministers could still potentially be held liable for human rights abuses in the following courts:

  • National courts in their own country; and
  • International criminal courts and tribunals.
6

International Organisations

Individuals can also sometimes take legal action against international bodies.

Traditionally, this has been very difficult as international organisations generally have immunity in national courts.

For this reason, complaints against international organisations like the United Nations or the World Bank have had to have been taken in internal complaints procedures in those organisations.

Key Resource: The Global Administrative Law Project

The Global Administrative Law Project provides further information on possibilities that are available to hold international organisations accountable.

7

Multiple Defendants

In your case, multiple persons or entities could be involved in the wrongdoing, could have contributed to the harm, or may have failed to act when they should have.

If this is the case;

  • It may be possible, and necessary, to bring different claims against different entities to secure justice.
  • Because of the nature of each claim and defendant, this may involve bringing different actions to different courts/countries (this requires significant resources/organisation).

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;

  • What person(s) or entity(ies) do you have the strongest claim against?
  • In which court/body can you bring a claim against a certain person or entity? (for further information, see Where Can I Take the Legal Action?)
  • How does bringing a claim against one entity relate to the objectives of your case? (for further information, see Is Legal Action Right for Me?)
  • What level of resources are required to bring a claim against a certain person or entity? (for further information, see How Can I Finance my Action?)
  • What are the risks involved in bring a claim against a certain person or entity? (for further information, see How Do I Deal with Security?)
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