Strategic litigation broke the back of the British slave trade. In 1772, James Somerset, an escaped slave brought to England by his owner, Charles Stewart, sued for his freedom. In the case Somerset vs Stewart, the Chief Justice, Lord Mansfield, ruled that no slave could be forcibly returned to a colony for sale.
Somerset was the first salvo in a series of anti-slavery civil cases brought in British courts. Those cases helped end the transatlantic trade in slaves. Nearly 250 years later, activists are again turning to strategic litigation to fight the modern day slave trade.
The dirty secret of today's human trafficking is that almost no one is held accountable. Modern-day slavery, particularly in the transnational supply chains of major international corporations, is too often a risk-free proposition.
Nowhere is this better illustrated than the Thai seafood industry. This year has seen some impressive investigative reporting into the horrendous human rights abuses rife in this industry. The reporting highlighted the widespread violence, forced labor, and human trafficking that taint the supply chain delivering seafood to European and American supermarket shelves. Burmese fisherman enslaved on Thai fishing boats reported long hours with no pay, brutal whippings with toxic sting ray tails, and shackling to boats for those men thought to be flight risks.
These powerful reports provoked outrage -- but they did not spark criminal prosecutions. Governments have spectacularly failed to prosecute those engaged in modern-day slavery, despite their rhetorical commitment to fight these abuses, particularly in the supply chains of corporations. But rhetoric is not accountability. Words will not end -- or even deter -- these abuses. Litigation will. Changing the cost-benefit calculations of corporations will drive action.
A network of private lawyers, many working pro bono, has grown to fill this accountability lacuna. Slowly, victims held in modern day slavery are learning that they can bring their own suits for damages against the perpetrators. We are on the cusp of a new movement: accountability litigation to end modern-day slavery.
One recent case, involving the U.S. corporation, Signal International, demonstrates how lawsuits can hold traffickers accountable and hit the corporate bottom line. Hundreds of Indian skilled workers sued Signal, a large maritime services corporation, in U.S. federal courts, alleging forced labor.
The men had paid corrupt labor brokers in India tens of thousands of dollars for the opportunity to work in the United States. Their visas were legal. They came with contracts to rebuild shipyards in Texas and Mississippi after Hurricane Katrina. But a jury found that the company had held the men in forced labor in the United States, and awarded $14 million to just five of the workers who had sued. In a global settlement, the company then agreed to pay $20 million in damages to all of the workers. Signal sought the protection of Chapter 11 bankruptcy. The bankruptcy court approved the settlement, which also included a public apology to the workers.
The case garnered headlines and ushered in a new era of accountability through litigation. At a meeting of leading lawyers held in London earlier this year, strategic litigation to combat trafficking and forced labor dominated the agenda. The attorneys agreed to continue efforts to build an international network of lawyers to do what states have failed to do: end impunity for modern-day slavery.
In the United States, federal law permits trafficking victims to recover damages from traffickers and those who "knowingly benefit" financially from the crimes. Victims have filed more than 150 cases since 2003, recovering millions of dollars in damages. Of 152 civil trafficking cases filed, more than 80 list corporations as defendants. More than 60 cases were brought by domestic workers alleging forced labor, many in the homes of diplomats posted in the United States.
A recent report by the Human Trafficking Pro Bono Legal Center and the Freedom Fund outlines the promise of strategic litigation in this arena. It concludes that litigation does more than just increase risks for those who engage in human trafficking. Strategic litigation also restores dignity -- and wages -- to those subjected to forced labor.
Prosecutors' dismal failure to bring criminal charges against human traffickers has guaranteed impunity for those who would hold men, women, and children in forced labor. Consumers have yet to demand justice for those exploited in the supply chain. Corporate shareholders have started to make their voices heard in boardrooms. But without risk of corporate liability, shareholders' demands fall on deaf ears.
It is trafficking survivors -- those who have escaped forced labor and servitude -- who have begun to fight. In the absence of criminal indictments, these courageous individuals have launched civil cases against their traffickers.
One of the fishing industry trafficking victims interviewed in Indonesia declared, "If Americans and Europeans are eating this fish, they should remember us". Like James Somerset, the survivors of human trafficking will be remembered for their courageous efforts to fight for justice. The courts are awaiting them.
Martina Vandenberg is founder and president of the Human Trafficking Pro Bono Legal Center. Nick Grono is CEO of The Freedom Fund. The Center and the Fund released on 15 December a report entitled Ending Impunity, Securing Justice: Using Strategic Litigation to Combat Modern-Day Slavery and Human Trafficking. The opinions expressed are solely theirs.