Geneva (Sept. 29) – The United Nations High Commissioner on Human Rights – the top human rights legal body in the world — has issued a stunning ruling in favor of U.S. human rights attorney Steven Donziger on the eve of his sentencing on a highly controversial criminal contempt charge filed after he won a $9.5 billion pollution judgement against Chevron on behalf of Amazon Indigenous groups.
The U.N.’s Working Group on Arbitrary Detention (WAGA) called the lawyer’s two-year home detention “arbitrary”, concluded it violated multiple provisions of international law including the right to a fair trial, and requested the United States government release him immediately and pay compensation for a deprivation of liberty that has now spanned 786 days in a minor misdemeanor case where no lawyer in the U.S. ever has spent even one day in prison.
The decision is a stinging rebuke to U.S. trial court judges Lewis A. Kaplan and Loretta Preska, both of whom were found by the U.N. working group to have displayed a “staggering lack of objectivity and impartiality” toward Mr. Donziger that violated binding provisions of international law including the right to a fair trial and impartial judge. Donziger is best known as the lawyer who in 2013 helped Indigenous groups in Ecuador’s Amazon win a historic $9.5b pollution judgement against Chevron for the deliberate dumping of billions of gallons of cancer-causing oil waste into ancestral lands. (Here is a summary of the evidence against Chevron in that case.)
Issued Sept. 6 but just transmitted to Donziger’s legal team at Amnesty International in London, the U.N. decision has been sent to the United States government for implementation. The announcement comes just two days before Donziger’s sentencing Oct. 1 by Preska in a criminal contempt case largely financed and controlled by Chevron that observers have called an illegal corporate prosecution.
Donziger’s legal team in the New York contempt case, led by Ron Kuby and Martin Garbus, said they plan to file the U.N. decision with Judge Preska and urge her to immediately release Donziger no later than his sentencing scheduled for Friday morning at the federal courthouse in Manhattan. Donziger will be arriving in court that day wearing the same electronic ankle bracelet that has been shackled to his left leg 24/7 since August 6, 2019; he sleeps with it, showers with it, and eats with it on.
Garbus lauded the U.N. decision and criticized the contempt case as a SLAPP-style harassment lawsuit intended by Chevron and the two judges to deny Donziger his First Amendment rights.
“This is an extremely significant and courageous decision by five international jurists who confirm what we have been saying for over two years: Steven Donziger has been subject to an illegal detention orchestrated by Chevron and two ideologically-driven trial judges who are retaliating against him for winning a major pollution judgement in Ecuador against a powerful U.S. corporation,” said Garbus, who has represented Nelson Mandela and Daniel Ellsberg in a career spanning five decades.
“We are calling on Judge Preska to release Steven immediately pending the outcome of his appeal, where we fully expect him to be exonerated,” Garbus added. “We also will open up communications with the U.S. government to ensure that the U.N. decision is fully implemented. At a minimum, that will involve removing Judges Preska and Kaplan, releasing Steven, dismissing the charges, and investigating how this type of corporate abuse of our judicial system could have happened.”
In the decision, the U.N. working group requested that the U.S. Government “take the steps necessary to remedy the situation of Mr. Steven Donziger without delay and bring it in conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights” — both treaties signed by the United States and binding as domestic law on all state actors, including judges.
The Working Group also wrote: “Taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.”
The U.N. decision also summarizes several of the irregularities in the contempt case initiated by Kaplan and Preska that violate international law and also the U.S. Constitution, according to Donziger’s lawyers. Kaplan already was the subject of a judicial misconduct complaint in the United States for his targeting of Donziger that was signed by 200 lawyers.
Evidence cited by the Working Group was that Donziger is being prosecuted for contempt not by the government but by the private Chevron law firm Seward & Kissel which was appointed by Judge Kaplan after his charges were rejected by the regular federal prosecutor in Manhattan. Kaplan also violated local court rules requiring random assignment of criminal cases by appointing Preska to preside; Preska is a leader of the Federalist Society, a pro-business legal group to which Chevron and its large law firms are major donors.
At the urging of Rita Glavin, then a partner in the Chevron law firm prosecuting Donziger, Preska in 2019 ordered that the attorney be locked in his home. She also confiscated his passport, imposed an exorbitant bond of $800,000, denied him a jury of his peers, and this summer convicted him after an abbreviated trial where she was the sole fact finder. At the trial, Preska denied Donziger the right to explain the legal and ethical reasons as to why he refused to hand over his computer and cell phone to Chevron under an unprecedented order by Kaplan that experts believe violated attorney-client privilege.
Kaplan had charged Donziger with criminal contempt after he appealed the lawfulness of his order to turn over the computer and cell phone. Prior to this case, no attorney in U.S. history ever had been charged with criminal contempt while appealing a civil discovery order as Donziger was doing.
Donziger has now been detained on a misdemeanor for 786 days even though the maximum sentence is six months in prison and the longest sentence ever imposed on a lawyer convicted of the charge is 90 days of home confinement. His sentence could add another six months in prison to his lengthy home detention. No attorney in the U.S. ever has spent a day in prison for Donziger’s offense level, considered the most minor in the federal criminal justice system.
Judge Preska also tried to justify Donziger’s two-year pre-trial detention on the grounds he was a “risk of flight” because he faced prison even though he had never missed a court date and had lived for 25 years in Manhattan with his family, which includes a wife and young son.
The Working Group on Arbitrary Detention used particularly strong language in its decision. It said it was “appalled” by the facts of the case and criticized Kaplan for “a staggering display of lack of objectivity and impartiality” in violation of Article 14 of the of the Covenant on Civil and Political Rights. It found that Donziger has been detained arbitrarily in violation of the law since 6 August 2019, or the entire time of his home detention – meaning there was never a valid reason to lock up the human rights attorney and the “risk of flight” justification advanced by Preska was invented entirely as a pretext to retaliate against his successful advocacy against Chevron.
“The charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities, as he refuses to disclose confidential correspondence with his clients in a very high-profile case against a multinational business enterprise,” the decision said. “The Working Group concludes the detention of Mr. Donziger lacks legal basis and is therefore arbitrary.”
Among the international legal instruments that have been violated by Donziger’s detention is the Universal Declaration of Human Rights — known as the gold standard of human rights protections in the world that has been signed by every country — and the International Covenant, which has been ratified by 171 countries. Both have the effect of binding domestic law in the United States.
The U.S. Working Group also noted “the exceptional level of cooperation provided by Mr. Donziger to all authorities.” It added: “Mr. Donziger provided various options on how he could cooperate with the judiciary of the United States of America without violating his professional duty of confidentiality toward his clients, making explicit his concerns over the need to uphold his ethical duty as a lawyer.”
The body also found Donziger was deprived of his liberty on discriminatory grounds due to his status as a lawyer and human rights defender, which is accorded special protection from reprisals under international law.
As follow-up, the WAGA requested that the U.S. government via the Biden Administration notify it when Donziger has been released; when he has been paid compensation or provided reparations for the illegal deprivation of liberty; and whether an investigation has been conducted into the violation of his rights.
The WAGA also referred the matter to other experts and legal bodies in the U.N. system for further investigation and action, including the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on business and human rights, the Special Rapporteur on human rights defenders; the Special Rapporteur on hazardous wastes; and, the Special Rapporteur on a healthy environment.