Given that 94% of all civil suits brought by foreign plaintiffs in the US never even reach the trial stage, no one should be surprised at this cowardly and insulting judgement, intriguingly published on the eve of coalition forces' assault on Iraq. What is surprising, however, is the impunity with which the presiding judge has displayed his partiality on the matter - how else are we to explain that the judgement could be factually wrong on so many counts?
Carbide's 'voluntary' hospital, that has so impressed Keenan, was forced upon the company by the Indian Supreme Court and the Chief Judicial Magistrate's Court in Bhopal. It became Carbide's means to escape criminal prosecution in India and enhance its pr at the same time. The Supreme court had ordered Carbide to build it from their own coffers. Not long after this, the CJM, Bhopal attached Carbide's Indian properties due to their absconding from the criminal case, the judge explicitly stating that Carbide would not be able to use these assets to pay for the hospital. Nonetheless, this is exactly what eventually happened: in the process, the Indian courts lost all power to enforce the criminal case against the company.
According to the testimony of survivors, the hospital has been slow to address the needs of the gas-affected, instead concentrating on non gas-related fields such as cardiology and often excluding the very poorest from its available treatment. When we visited it in 2001, just one year after its opening, with its 80 security staff it resembled a military compound more than a hospital, and it was already profiteering with private patients - though it had been directed by the Supreme court to solely treat the gas-affected for a minimum of eight years. The hospital's pr representative, Sangmitra Mohyanti, told us at that time, "the gas tragedy is over: all these people are acting. They relate anything to the gas, anything that happens to them. They just want an excuse to get free treatment. I'll be very happy when this becomes a commercial hospital in eight years!" In no way could this cynical venture be described as an adequate response to the needs of 150,000 chronically ill Bhopalis.
In respect of Carbide's other efforts for the gas-affected, is Keenan referring to the non-disclosure of their toxicological studies on MIC that for 18 years has disabled Bhopal doctors from finding a treatment protocol for the gas-affected? Is he talking of the parade of Carbide sponsored doctors who have, in the face of all field evidence to the contrary, consistently denied the multi-systemic and long-term effects of MIC exposure? Or does he refer to the Red Cross hospital Carbide were forced by the US courts to fund and which closed after Carbide demanded its money - each and every cent of it - back?
Concerning the 'Statute of Limitations', Keenan asserts that Haseena Bi's claim is time barred because she, an impoverished basti dweller, did not file a case in New York State within three years of suspecting that the local drinking water was poisoning her and her family. However, Haseena Bi is to this day being injured by the water she drinks, making her injuries continuous and ongoing. CERCLA legislation also allows for specific exemption from this Statute in some cases of 'toxic harm': Haseena Bi could not have been fully aware of her injuries until Greenpeace conducted a 1999 environmental study identifying toxins in her local water supply; the class action began during the same month in 1999.
Finally, Keenan suggests that because Carbide have abandoned their former factory site, their responsibility to decontaminate it has ended. Wherever is the 'Polluter Pays' principle, that statutory US law and international common law - a law regularly enforced in Indian Courts - in this opinion?
Through examining all of the affidavits in this case, it is impossible that Keenan is unaware of the countervailing facts, nor - due to company documents revealed through the limited discovery process - is he unaware of Carbide's exact role, not only in doing absolutely nothing to clean up the 5000 tonnes of deadly toxins they dumped in the grounds of the Bhopal factory, but also in misleading the local government and public concerning their knowledge of that contamination's probable migration into local water supplies. If Carbide acted with callous deception, what are we to make of the judge who rules that 'Union Carbide has met its obligations to clean up the contamination in or near the Bhopal plant', in the full knowledge that even today Bhopali women breast feed their babies with mercury and organo-chlorines from Carbide's death factory?
The survivors of Bhopal, some of the poorest people in the world, are concerned not with revenge but with due process and the rule of law and they will not remain silent; the question is, when will they ever find a legal forum equally concerned with these principles?