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Total lawsuit in Belgium (re Myanmar)

Author: Business & Human Rights Resource Centre, Published on: 18 February 2014

Pour une version française de ce profil, cliquez ici.

 

In April 2002, four Myanmar refugees filed a lawsuit against TotalFinaElf (now Total), Thierry Desmarest (chairman of Total) and Hervé Madeo (the former director of Total’s Myanmar operations) in Brussels Magistrates’ Tribunal.  The Myanmar refugees brought the lawsuit pursuant to a 1993 Belgian law of universal jurisdiction.  This law provides Belgian courts with jurisdiction to hear cases for certain serious crimes, such as crimes against humanity and war crimes, even those committed outside Belgium.  This case is the first to be brought under this law against a company rather than an individual.  The plaintiffs allege that Total and its managers have been complicit in crimes against humanity, such as torture and forced labour, committed by the Myanmar military junta in the course of the construction and operation of the Yadana Gas Pipeline in Myanmar.  Total owns the largest stake in this pipeline (31%).  The plaintiffs allege that Total provided moral and financial support to the Myanmar military government with full knowledge that its support resulted in human rights abuses by the military.  A procedural issue arose as to whether the plaintiffs had standing to bring the lawsuit because they were not Belgian citizens.  In April 2005, the Court of Arbitration (Cour d’arbitrage, renamed the Constitutional Court in May 2007) ruled that the exclusion of refugees from access to the provisions of the law on universal jurisdiction was unconstitutionally discriminatory.  However, in June 2005, the Cour de cassation (court of highest appeal) dismissed the proceedings against Total, disregarding the ruling by the Court of Arbitration.  In June 2006, the Constitutional Court struck the provision of the universal jurisdiction law that barred non-citizens from bringing lawsuits under the law.  In March 2007, the Cour de cassation dismissed the entire proceeding, ruling that it could only continue on the basis of a law modified by the Constitutional Court if the modification favoured the defence (in this case, Total).  In October 2007, based on the universal jurisdiction law as modified by the Constitutional Court, the Belgian federal prosecutor’s office opened a new investigation into this case.  The Belgian authorities declared the "case closed" in March 2008, dropping the case against Total.

 

-  “Belgium drops Myanmar rights case against Total”, Agence France Presse, 6 Mar 2008

- “French oil firm accused of complicity with military regime”, John Lichfield, Independent [UK], 4 Oct 2007

- [français] “Birmanie: reprise en Belgique de la longue bataille judiciaire contre Total”, AFP, 2 octobre 2007

- “Belgian court stops human rights probe of Total oil”, Reuters, 1 Jul 2005

 

- Total: Total in Myanmar, 26 Sep 2007

- Actions Birmanie: Civil action for Crimes against humanity and complicity in Crimes against humanity committed in Burma (Myanmar) Lodged on Thursday April 25 2002 in the Brussels magistrates court against X, the company TOTALFINAELF S.A., Thierry Desmarest and Herve Madeo, 25 Apr 2007 [English summary of complaint]

- [français] Comité pour l’Annulation de la Dette du Tiers Monde (CADTM) : Crimes en Birmanie : Total 1 – Justice 0, 24 avril 2007

- Burma Campaign UK: Total Oil: Fuelling Oppression in Burma, Ch. 8 The Lawsuits, 21 Feb 2005

 

- [français] Cour de cassation de Belgique: [PDF] Arrêt, 28 mars 2007
- [français] La cour d’arbitrage: [PDF] Arrêt, 21 juin 2006

- [français] Cour de cassation de Belgique: [PDF] Arrêt, 29 juin 2005

- [français] Cour de cassation de Belgique: [PDF] Arrêt, 5 mai 2004

Related companies: Total