A criminal legacy

December 3, 1984: Victims on a Bhopal street, after the gas leak. - PRAKASH HATVALNE/AP

Even two decades after the disaster, Union Carbide refuses to face criminal charges and the Indian authorities, in breach of their obligation under international law, are unwilling and unable to act.

DECEMBER 3, 2004 will mark the 20th anniversary of the catastrophe that took place in Bhopal around midnight in 1984, an event that has been described without hyperbole as the worst industrial disaster ever to befall a peacetime civilian population. It happened when a pesticide plant leaked some 27 tonnes of a toxic chemical, methyl isocyanate or MIC, over the sleeping city in the form of an asphyxiating cloud of toxic gas. Somewhere between 3,000 and 10,000 residents died in the immediate, 48-hour aftermath. Nearly 20,000 people, by some accounts, have died in the intervening years since the catastrophe.

According to the Indian Council for Medical Research (ICMR), more than 250,000 people continue to suffer from permanent disabilities and chronic ailments as the result of exposure to the poisonous gases on that night. The International Commission for Medical Research on Bhopal has concluded that owing to chromosomal and genetic damage among the victims the wake of this unprecedented disaster will ripple through the next three to four generations in Bhopal in the form of spontaneous abortions and birth defects.

The plant belonged to an Indian subsidiary of Union Carbide, an American multinational corporation. In 1991, the Supreme Court of India approved a collusive, and grossly unjust, settlement between the Government of India and Union Carbide amounting to $470 million to discharge all claims for compensation against the U.S. company, a fraction of the nearly $3 billion that India had claimed as damages in its complaint. However, the Supreme Court also ruled that the criminal charges against Union Carbide for "culpable homicide not amounting to murder" and "causing death by use of a dangerous instrumentality" must proceed and be fully prosecuted in order to prevent a "miscarriage of justice".

The orders of the Supreme Court were clear and unequivocal that "in the particular facts and circumstances, it is held that the quashing of the criminal proceedings was not justified. The criminal proceedings are, accordingly, directed to be proceeded with." (emphasis added). In its response to the class action suit filed before the New York District Court by the plaintiff-organisations representing the survivors of the tragedy, Union Carbide contended that although the Supreme Court had ordered the criminal case to proceed, there was no order requiring it to submit to the jurisdiction of India's criminal courts:

"Finally, plaintiffs' argument that Union Carbide's refusal to appear in the criminal case brought in India violates an order of the Supreme Court is wholly unfounded." (Union Carbide Memorandum of Law on page 28.)

There is no such order. In oral argument before the U.S. appeals courts, Carbide's counsel has insinuated that the Indian government never expected or wanted it to appear to face those criminal charges in India, noting that surely the Indian authorities know where to find the company if they really wanted it to appear.

Those criminal charges have languished in the Bhopal District Court since 1992 when summons and notices to appear for trial were served upon Union Carbide through the U.S. Department of Justice. The company flatly and publicly refused to appear to face those charges, proclaiming that it was not subject to the criminal jurisdiction of India's courts. Neither the Indian Government nor the Central Bureau of Investigation (CBI), which is responsible for prosecuting the criminal case, has done anything to ensure the appearance of Union Carbide or to pursue the prosecution of those charges against it over the past 14 years.

Present-day estimates by non-governmental organisations indicate that over 90 per cent of claimants have received less than $400 from the claims process in India, an amount insufficient to pay for medications over a five-year period. If Union Carbide were found guilty of the offences with which it is charged, an Indian court could order the company to pay fines as "restitution" to the victims of its crime under the country's Criminal Procedure Code.

In the 20 years that have lapsed since this tragedy, it seems that India, a country where thousands of schoolchildren wrote anguished letters to the victims of 9/11, has largely forgotten the victims and survivors of this sorry chapter in the nation's recent history. The occasion of this anniversary should serve as a reminder that the social and economic forces that gave birth to this unparalleled disaster are, in this halcyon age of globalisation, on the march everywhere today, particularly in India where a large number of chemical companies including Dow Chemical, which now owns 100 per cent of Union Carbide, continue to invest in ultra-hazardous manufacture and transfer dangerous or polluting technologies, with the knowledge that the country's weak regulatory and legal system will serve as both a shield and a sword when and if something goes terribly wrong. The fate of the criminal case against Union Carbide should be understood in the context of this new `politics of catastrophe'.

Compare the response of the American government to the events of 9/11 with the unaccountably lame efforts of the Indian state in response to what is, after all, a comparable national disaster in Bhopal. Much has been said and written about India's emergence as a great power in the world community in the 21st century. Perhaps, it bears mentioning, in the context of these aspirations, that so-called great powers in the international community do not tolerate the victimisation of their citizens and the flouting of their laws by criminals, whether of the terrorist or the corporate variety.

INDIA'S inability or unwillingness to enforce its own criminal laws on behalf of victims of the world's worst industrial disaster, hundreds of thousands of its own nationals, is particularly galling because it undeniably constitutes a breach of India's legal, to say nothing of moral, obligations to the victims of Bhopal under international law. India has an obligation to ensure that this crime is effectively prosecuted. Article 8 of the Universal Declaration of Human Rights stipulates that: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law." As a signatory to the International Covenant on Civil and Political Rights, India has undertaken to (pursuant to Article 2 of the Covenant) to "ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy," and to "ensure that the competent authorities shall enforce such remedies when granted."

Article 16 of the Covenant further provides: "Everyone shall have the right to recognition everywhere as a person before the law." The refusal or inability of the Indian government to prosecute the criminal charges against Union Carbide for nearly 14 years now is not consonant with these fundamental guarantees of international law.

To comply with its international legal obligations, India must secure the appearance of Union Carbide or its new parent, Dow Chemical, to face trial at long last on the criminal charges pending against it in the Bhopal District Court. The criminal case against Indian officials has dragged on for a number of years and judges presiding over the case against the American company have been repeatedly transferred. A single judge should be appointed to preside over the entire matter and expedite proceedings so that the criminal case can be quickly adjudicated and disposed of under the law. The Indian government served Union Carbide with a summons and notice to appear for trial in 1992 through the U.S. Department of Justice. Now is the time to remind appropriate U.S. authorities that there has been no response to its judicial summons. The Bhopal District Court can and should issue an order to show cause to Dow Chemical, which has assets and subsidiaries in India, as to why its wholly-owned subsidiary, Union Carbide, continues to refuse to appear to face criminal charges in India.

Union Carbide has strenuously maintained that Indian courts lack jurisdiction over it for the purposes of criminal prosecution, arguing that the original judgment from the New York federal court only required it to submit to civil - not criminal - jurisdiction. The argument is entirely specious and should not deter the Indian government from efforts to secure the appearance of the American company to face criminal charges in India. Under the principles of international law pertaining to criminal jurisdiction, recognised by both the United States and India, the Bhopal District Court clearly has such jurisdiction over the U.S. company. There are five such bases of jurisdiction with respect to the enforcement of domestic criminal law.

In the context of this case, India would have jurisdiction over Union Carbide under several of these principles, most notably the "passive personality" theory where jurisdiction is determined by reference to the nationality of the person injured. The well-settled rule in international law is that: "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect... " Thus, for the purposes of the criminal charges pending in the Bhopal District Court, Union Carbide was and is `constructively present' in India. American courts recognise this latter principle of international law as having received the general assent of all nations.

As early as 1927, the U.S. Supreme Court was able to affirm that "the principle that a man who outside of a country wilfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognised in the criminal jurisdiction of all countries."

There is no question, therefore, that India could and should properly exercise its criminal jurisdiction over Union Carbide to prosecute these offences by issuing another summons to Union Carbide and Dow Chemical demanding its appearance for criminal trial through appropriate channels with the U.S. The well-established rule in international law and in the U.S. as well, is that, "the summoned witness may not resist the summons on the sole ground that he is a non-resident alien".

On this 20th anniversary of the Bhopal disaster, the Indian government as well as civil society organisations and activist groups should work together to ensure that this historic crime does not go unpunished and that the victims' rights are not abandoned to their toxic fate without the remedy to which they are entitled under national and international law.

H. Rajan Sharma is counsel for the plaintiffs in the United States.