Tag Archives: criminal trial

Doubts ahead of Bhopal gas verdict

RASHEED KIDWAI, CALCUTTA TELEGRAPH

Bhopal, June 5: The 23-year-old criminal trial of the Bhopal gas tragedy will see the verdict delivered on Monday, but survivors fear the “glaring omissions” by prosecuting agency CBI may deny them justice.

Several Indian officials of Union Carbide India Limited (UCIL) will be in court on June 7 as the accused in one of the country’s longest criminal cases. But missing will be all the foreign accused, including the then chairman of the US-based Union Carbide, Warren Anderson.

“I hope the guilty will be punished but when I look at the lacklustre way the CBI fought the case, I fear the worst. The guilty may escape simply because the prosecuting agency had little inclination to punish them,” said Abdul Jabbar, convener of the Bhopal Gas Peedit Mahila Udyog Sangathan.

“In this era of liberalisation and global trade, not many are willing to punish a big company fearing it will discourage foreign investment.”

Thousands were killed when methyl isocyanate gas and other toxins leaked from the Union Carbide plant here on the night of December 2-3, 1984, in what is considered the world’s worst industrial disaster.

The trial has involved 178 prosecution witnesses and 3,008 documents, with the CBI seeking to blame the leak on the chemical plant’s defective design and poor maintenance.

Chief judicial magistrate Mohan Tiwari will decide if the accused are guilty of causing death by criminal negligence, an offence that can bring a two-year jail term.

Some survivors, however, plan to award the “capital punishment” to the accused by hanging their effigies at public places. “The idea is to provide some solace to the survivors,” said Shamshad Bi, who lost close relatives in the tragedy.

NGOs working with the survivors want the Prime Minister to create a special cell to get the accused foreigners, including some from Union Carbide’s Hong Kong subsidiary, handed over to India and punished.

“How can justice be delivered if the principal accused, Warren Anderson, is not brought to trial?” Jabbar asked.

The Indian accused include former UCIL officials such as Keshub Mahendra (then chairman), Vijay Gokhle (managing director), Kishore Kamdar (vice-president), J. Mukund (works manager), S.P. Choudhary (production manager), K.V. Shetty (plant superintendent) and S.I. Qureshi (production assistant).

The police have made security arrangements to ensure the accused are not attacked inside or outside the court premises.

Rachna Dhingra and Satinath Sarangi, representing the Bhopal Group for Information and Action, blamed the Centre for the prosecution’s “criminal negligence”.

The CBI did not try to execute the two warrants issued against Anderson by the Bhopal court, in 1992 and 2009. Nor did it appeal the Supreme Court order of 1996 diluting the charges from culpable homicide, punishable by 10 years in jail, to a life term.

The agency failed to present evidence that the Indian accused took several steps that undermined the plant’s operational safety. The CBI is also accused of ignoring important witnesses and seeking repeated adjournments that slowed the trial.

The gas leak had killed an estimated 8,000 people in three days, a further 15,000 had died of the gas’s long-term effects, and some 100,000 continue to suffer “chronic and debilitating illnesses”, Amnesty International had reported in 2004. Even now, thousands are forced to drink the toxic water in the area around the plant.

The NGOs want Dow Chemicals, which has taken over Union Carbide, to clean up the site. But Dow is unwilling to do so on the ground that all liabilities relating to the disaster were settled when Union Carbide concluded a $470-million compensation settlement in 1989.

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Key source documents in the unheard case against UCC

The people most responsible for the disaster in Bhopal will not be in the courtroom when the verdict against the Indian defendants is announced. Union Carbide Corporation and its ex-Chairman Warren Anderson, and Union Carbide Eastern, have refused since 1992 to obey the summons of the court and answer charges of culpable homicide. The evidence against them has remained largely unheard, as the prosecution sought to focus on the small fry, the Indian managers, who were, despite their own failings and shortcomings, ultimately implementing decisions and carrying out orders that originated in the United States.

Testimony of Edward Muñoz.

UCC’s appointee to run the Indian subsidiary. Muñoz testifies that the MIC plant in Bhopal was designed and its construction managed by the Engineering Department of Group 1, UCC in South Charleston, West Virginia, who also designed the three huge MIC tanks. This group overruled Muñoz’s and UCIL’s objections to storing MIC in such large quantities, contrary to normal industry practice. Control over Union Carbide India Limited (UCIL) was strictly maintained by Union Carbide Corporation (UCC) directly and through its holding company Union Carbide Eastern (UCE) whose managing director was a UCC Corporate Vice President.

Export-Import Bank of the United States documents

Obtained under the Freedom of Information Act (although almost half the documents requested were refused on the grounds that they contained “trade secrets”), they confirm that the plant was designed and goods and services for it were to be procured in the US. UCC would also furnish technical services during the first five years of operation. (MIC production began on May 4, 1980 and the five years were not yet up at the time of the catastrophic gas leak)

Excerpt from May 1982 safety audit of the Bhopal plant by US engineers

On December 24, 1981 a faulty valve gushed phosgene liquid over a factory worker, Ashraf Khan, who died a horrible death after several hours of suffering. A safety audit was ordered and carried out in May 1982 by American safety engineers from UCC. They identified 61 hazards, 30 of them major and 11 in the dangerous phosgene/MIC unit. The page excerpted from the report is uncannily prophetic in its description of the risks involved in trying to clean filters without slipbinding process lines or addressing leaky valves. It recorded MIC leaks, some of which were not able to be controlled.

Union Carbide Eastern assessment of the failing UCIL factory in Bhopal

This document sets out the clearest possible proof that the affairs of the UCIL plant in Bhopal were being run by UCC. Lamenting the steady stream of losses that were accruing, the UCIL Board, said UCE, were keen to establish “what UCC is going to do to resolve the problem”. UCE reported that a programme of vigorous cost-cutting “including a reduction of 335 men” had resulted in savings of $1.25 million, but warned that there was pretty much nothing left to cut. (Cuts in manpower, safety training and maintenance were all major contributors to the disaster.) The plan outlined by UCE and approved by Warren Anderson was to dismantle the Bhopal factory and ship it to Brazil or Indonesia. UCE acknowledged that the Alpha Napthol facility would be impossible to sell because it was “unproven”. This corroborated the fears about “unproven technology” expressed by engineers in the earliest project proposal for the MIC plant. The board decided that it was an acceptable risk. The full proposal can be seen here. The crucial pages are 10, 11 and 12.

September 1984 Safety Survey of MIC unit at Institute, West Virginia

Bhopal’s ‘sister’ factory had markedly superior systems but nonetheless this survey warned that “a runaway reaction could occur in one of the MIC Unit Storage tanks and that response to such a situation would not be timely or effective enough to prevent a catastrophic failure of the tank.” UCC did not circulate the report to the Bhopal factory and less than seven weeks later, its grim warning came true and caused the excruciating deaths of thousands of innocent people in a night.

Bhopal: Courting Disaster

Magazine article written by Rob Hager, published summer 1995, analysing Union Carbide’s historical attitude to risk, its strong ties with the US establishment, and its strategies for evading responsibility for the disaster in Bhopal. Hager identifies Carbide’s triple legal strategy – collusive class action settlement, the bankruptcy defence, and the use of forum non conveniens, which he describes as avoiding an inconvenient rule of law. He notes the role played by lawyers and judge presiding over the Bhopal case in New York, the likelihood of an arms deal being struck between the governments of Rajiv Gandhi and Ronald Reagan, Rajiv Gandhi’s and the Indian Supreme Court’s sell out of the Bhopal victims in the “Valentine’s Day” settlement of 1989, the subsequent reversal by incoming Prime Minister V.P. Singh and the continuing clashes and contradictions between politicians and high officials, including the Attorney General Soli Sorabjee who went out of his way to argue against requesting the extradition of Warren Anderson.

The case against Union Carbide Corporation by Michael V. Ciresi

Forty two pages of argument by Michael V. Ciresi about why Union Carbide’s “forum non conveniens” plea should be dismissed, setting out the case against UCC. Reading this after Hager’s article throws a particular and grim light on what was going on behind the scenes.

Dow-Union Carbide Corporation Merger document

Union Carbide’s submission to the Securities and Exchange Commission dated August 3, 1999 in which it falsely declares that “there are no (i) civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the actual knowledge of its executive officers, threatened against it or any of its Subsidiaries”. At the time of writing, UCC had been facing criminal charges in India for seven years and had been declared an “absconder from justice”.

Emails relating to India’s request for the extradition of Warren Anderson

Obtained via a FOIA request. A May 1, 2003 exchange of emails between officials in the US Department of Justice and the State Department. The subject of the thread is “Mike or Bruce may start getting calls on Indian extradition request in Bhopal case”. Speaking of their strategy for getting Anderson off the hook, Samuel M. Witten remarks, “Hope it works.” Molly Warlow of the Department of Justice speaks of Anderson being accused of “some sort of negligent homicide in connection with the disaster at the Union Carbide plant in Bhopal in 1984” and reveals that “there had been extensive discussions with India in the past about pursuing a criminal homicide case against UCC executives would not be helpful.”

Warren Anderson should not be extradited to India

This opinion by Joseph E Geoghan, Union Carbide’s Chief International Counsel, dated July 24, 2003 reveals that the US administration’s concern was not with justice but with business. “The (extradition) request should be rejected. No issue has greater potential to destroy US business leaders’ confidence in India than the handling of the Warren Anderson case.” The document goes on to mount a disingenuous defence of Anderson, and notes that the Indian government had waited 11 years before submitting the extradition request, something the Bhopal survivors had long complained about. Read this story about a 1991 meeting between Joseph Geoghan and Satinath Sarangi of the Bhopal Group for Information and Action.

Email from Burson-Marsteller to Dow and Carbide PR people

Email dated July 20, 2004 from Karen Doyne, Burson Marsteller’s New York chief of Crisis & Issues Management to Union Carbide counsel William Krohley and Dow/Union Carbide public affairs spokesmen John Musser and Scott Wheeler. The subject is “US rejects India’s request for extradition of Warren Anderson and Doyne writes “Looks like the news is out.” This was the day that news broke and the email clearly demonstrates that the US government departments handling the extradition had been working with Dow and Carbide and their PR agency.

US intelligence report from Mumbai, July 26, 2004

The snippets of information sent from Mumbai include information that then Minister of State for Chemicals and Fertilizers Tapan Sikdar had told parliament that “the investigation agency (CBI) had been asked to strengthen the evidentiary links connecting Anderson to the Bhopal gas leak tragedy.”

But former CBI Joint Director B. R. Lall, speaking after the June 7 verdict revealed that, “The Central Bureau of Investigation (CBI) received a letter from the Ministry of External Affairs that the extradition proceedings should not be pursued; obviously the government’s intention was to not include him (US citizen Anderson heading the Union Carbide). I do not know what the agreement was between the two countries on the issue. And anyway, in a country like ours, no investigations can be done against the rich and people with high contacts.”

Former CBI Joint Director B. R. Lall speaking after the June 7 verdict on Indian television

A further snippet from the Mumbai spook’s dispatches says “G.O.I. (Government of India) officials may well feel that, for political reasons, they need to perceived as being concerned about extraditing Anderson.”

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Ten years, zero convictions

The criminal case that is Bhopal’s second, seemingly eternal disaster

SOMEBODY was criminally responsible for the Bhopal gas leak of December 1984, somebody should have been punished. Nothing of the sort happened. Instead the case lies trapped in the labyrinth called the Indian legal system.

The CBI filed the chargesheet before the chief judicial magistrate (CJM), Bhopal, on December 1, 1987. From the very beginning Union Carbide Corp (UCC) chief Warren Anderson was absent from the court. So notices were issued.

After three such notices failed to elicit any response, on November 15, 1988, the CJM issued a bailable warrant of arrest against Anderson.

Meanwhile, the criminal charges were quashed abruptly as a result of the settlement brought about between the government of India and UCC by the Supreme Court on February 14-15, 1989. But passing the order on review petitions, the Supreme Court, on October 3, 1991, revoked the quashing of criminal cases.

This effectively revived the cases against all accused in the Bhopal District Court.

The process of framing of charges against the accused — including Keshub Mahindra, Vijay Gokhale and J Mukund, respectively chairman, managing director and works manager (Bhopal) of Union Carbide India Limited (UCIL) in December 1984 — proceeded before the Sessions Court in Bhopal from July 17, 1992.

On April 8, 1993, the court framed charges against the nine accused based in India, under Section 304, part II (culpable homicide not amounting to murder). Under this provision, the maximum punishment was 10 years in prison.

On September 13, 1996, the Supreme Court partly upheld an appeal by the accused and ordered they be tried for lesser offences, under Sections 304-A of the IPC (rash and negligent act). The maximum punishment under this provision was only two years imprisonment.

With regard to Anderson, the CBI, under directions from the Ministry of External Affairs, moved an application before the CJM, Bhopal, on May 24, 2002. The application sought reduction of charges against Anderson from Section 304, part II, to Section 304-A of the IPC. On August 28, 2002, the CJM turned down the request.

On July 16, 2003, the CBI finally informed the CJM, Bhopal, that the government of India had forwarded the necessary request to the US administration to extradite Warren Anderson to India. That request was made on May 5, 2003. A year later, in June 2004, the US Department of Justice got back. Extradition was ruled out.

So as things stand, Anderson is still at his plush home in Long Island, New York. The mess is still in Bhopal. Justice is still in another universe.

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A man with friends in the highest places…
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A few of Warren Bhai’s victims
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Abu Salem, soon to be in Indian custody

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Bhopal court rejects application to dilute charges against Carbide CEO Anderson

We have just had a phone call from Bhopal to tell us that the criminal charges against former Union Carbide CEO Warren Anderson are not to be diluted. “The women are literally dancing in the streets,” said our caller.

Speaking from Johannesburg where Bhopal supporters have been protesting against the presence of Dow Chemicals at the Earth Summit, Satinath Sarangi of the Bhopal Group for Information and Action, which opposed the application to dilute, said “The Indian Government must now pursue extradition proceedings against Warren Anderson without delay.”

Meanwhile we have had a report that Mr Anderson has been sighted and photographed in the USA, where the law enforcement agencies have apparently been unable to trace him. Anyone who knows anything about this please contact us with more information.(But please, no Elvis-type sightings and no need to spy on your neighbours.)

Find key excerpts of the judgement, translated from Hindi here.

Tim Edwards, of the UK Campaign speaks on BBC TV.

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