This past summer, the Ninth Circuit Court of Appeals ¹ ended a case brought by six Malian survivors of child slavery on cocoa plantations against the American corporations who profited from their enslavement: Nestle USA and Cargill ² . Cocoa harvested by child slaves is used to make common household treats like KitKats and Nesquik. The Ninth Circuit ruled that it had to dismiss the plaintiffs’ claim against the American corporations in light of a recent Supreme Court decision, Nestle v. Doe I, that greatly increased the survivors’ burden to know the details of the internal processes at the corporation in order to bring a lawsuit for slavery against the corporation³ . This decision entrenches the same legacies of racism and colonialism which continue to haunt us today and which, in my work as UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, I have stressed require urgent action.

These horrors form part of a system in which international corporations support cocoa plantations by providing farm equipment, agricultural training, and unrestricted cash, despite knowing that child slavery is clearly underwritten by this support.

In their lawsuit, the plaintiffs describe their years of enslavement on cocoa plantations as children⁴. They were all child-trafficked from Mali to the Ivory Coast between age 10 and 14. They describe being trapped on the plantations through heavy guarding; being beaten, threatened and tortured; and being held in locked rooms at night to prevent their escape. During the day they harvested cocoa, sometimes for up to 14 hours straight. One of the children only managed to escape by digging a hole under the floor of the hut where he was being held.

These horrors form part of a system in which international corporations support cocoa plantations by providing farm equipment, agricultural training, and unrestricted cash, despite knowing that child slavery is clearly underwritten by this support ⁵ . By providing plausible deniability, the supply chain maximizes Nestle USA and Cargill’s profits while distancing them from accountability in the United States. Many international corporations have their suppliers sign agreements about the type of labor they will use without any type of meaningful monitoring, despite widespread knowledge of the endemic trafficking and child labor problems in the industry.

Many international corporations have their suppliers sign agreements about the type of labor they will use without any type of meaningful monitoring, despite widespread knowledge of the endemic trafficking and child labor problems in the industry.

Nestle USA and Cargill are based in the United States and make their business-related decisions here – including deciding to profit from the enslavement of child laborers. But the Court described this kind of conduct as merely “general corporate activity” and decided that therefore the lawsuit could not continue because the plaintiffs had not been able to allege sufficient conduct had occurred within the United States.

In order to continue, the plaintiffs must now find out what internal actions these American corporations took in the United States before they can seek remedy for the harms they experienced in the Ivory Coast. For example, instead of simply finding out that the corporation made advance, unrestricted payments that went to slaveholders to assist in their operation, the plaintiffs must now allege whether a United States employee at the corporation was responsible for making the payment and whether the payment originated in the United States. The plaintiffs are now expected to not only overcome their trauma, but to also stare down steep financial, infrastructural, international and legal impediments to gathering evidence from within opaque and shielded American corporations. As a result of this decision, American corporations can enjoy impunity for egregious violations of international law occurring abroad with their support.

Instead of simply finding out that the corporation made advance, unrestricted payments that went to slaveholders to assist in their operation, the plaintiffs must now allege whether a United States employee at the corporation was responsible for making the payment and whether the payment originated in the United States.

This type of activity by American corporations can only be understood as “general” or “ordinary” within a system that at the end of the day still considers slavery to be acceptable when it affects Black Africans, who are dehumanized for profit. In their response to the lawsuit, Nestle USA and Cargill argued that their continued legal impunity was necessary for “development” and “investment” in Africa – as if African children somehow benefitted from their own enslavement. As I noted in my 2019 report on reparations, development aid is frequently cited as a means of repairing the legacy of colonialism. As I wrote then, if development aid is to be meaningful, it must be guided by an understanding of the connection between historic and contemporary racial discrimination and injustice. Here however, African development was used as a self-serving justification for why courts should not enforce laws prohibiting American corporations from profiting from the suffering of children.

Nestle USA and Cargill argued that their continued legal impunity was necessary for “development” and “investment” in Africa – as if African children somehow benefitted from their own enslavement.

Furthermore, the very global supply chains at issue in this lawsuit arose from and are shaped by the global reverberations of colonialism and slavery. For centuries, Africa was the site of extraction of human beings; their labor was forced to advance wealth for others around the world. As outlined in the lawsuit, American corporations are still the beneficiaries of a system of slavery. In the case of Cargill, the profits resulting from enslaved child labor are accruing to a single American family which owns the privately-held corporation.

To comply with America’s own ideals and its human rights obligations, Congress must act to ensure that American corporations are held accountable for their role in the enslavement of children abroad. Furthermore, consumers shouldn’t be burdened with themselves having to somehow glean the intricacies of a corporation’s shielded and worst practices in order to ethically shop. It is up to Congress to assert the moral backbone this nation — and our common values — have demanded be codified time and time again.

All photos courtesy of Terry Collingsworth.