On June 3, US District Judge Kenneth A. Marra in Southern Florida issued a 95-page opinion in the case in re Chiquita Brands, International, allowing lawsuits brought by some 4,000 Colombians seeking compensation for violence by armed groups the company backed to move ahead. Chiquita had asked for the suits to be dismissed, arguing it was a victim of extortion and bore no responsibility for any crimes carried out by armed groups. Attorney for the plaintiffs Paul Wolf said the ruling "provides a roadmap for holding American corporations responsible for war crimes and crimes against humanity committed overseas."
The case arose from Chiquita's admitted payments of millions of dollars to the warring factions in Colombia's decades-old civil war: the right-wnig United Self-Defense Forces of Colombia (AUC), and the left-wing Revolutionary Armed Forces of Colombia (FARC). In March 2007, Chiquita pled guilty to engaging in financial transactions with these State Department-designated "foreign terrorist organizations." Represented by now-Attorney General Eric Holder [2], the $4 billion dollar company admitted its guilt, and agreed to pay a $25 million fine over a period of five years. Under the deal, no individuals were to be prosecuted.
However, writes attorney Wolf in a press release (links and bracketed annotation added):
By admitting its guilt in a criminal proceeding, the company set itself up for lawsuits, brought by the families of thousands of individuals slain by these groups during the years they were in Chiquita's pay. Judge Marra upheld a variety of claims brought under the Alien Tort Statute, or ATS, including summary execution, torture, war crimes and crimes against humanity. These claims are violations of international law, which was called the Law of Nations back in 1789 when the ATS was enacted.
The crux of the case was not whether the AUC and FARC committed war crimes, torture and the like. That is really beyond dispute. The difficult issue in the Chiquita case was whether a corporation paying these groups could be held responsible for what they do, and if so, what more must be proven, other than the payments themselves?
Following the reasoning used in the Khulumani [3] and Talisman [4] cases [involving South African apartheid and genocide in Sudan, respectively], brought in federal courts in New York, Judge Marra held that in order to be liable for the Colombian groups' crimes, Chiquita must also have intended that those groups commit the crimes, at least in some general way. Just knowing that the groups might massacre and torture innocent civilians would not be enough. In order to be held responsible, the victims' families must also show that Chiquita wanted those groups to do what they did.
As in the New York cases, Judge Marra relied on international law standards for what constitutes "aiding and abetting" crimes committed by someone else. Since no consensus exists, at the international level, whether a mens rea (mental state) of "knowledge" or "intent" is required, the court chose the more restrictive standard of intent, in keeping with the US Supreme Court's decision in Sosa v Alvarez Machain [5] [concerning an accused Mexican cartel hitman who was abducted to the US to stand trial]. In the Sosa case, the Supreme Court warned the lower courts not to be too quick to recognize "new" concepts in international law: any disputed concept is not actionable under the ATS. Using the same reasoning, Judge Marra struck the Chiquita plaintiffs' claims for terrorism, holding that terrorism is not a sufficiently defined legal concept in international law.
The Chiquita victims need not prove this intent on a case by case basis, though. They don't have to prove that Chiquita specifically intended that the AUC, or FARC, torture or kill the specific individuals in this case, or even knew their identities. They must show that Chiquita intended the AUC and FARC to torture and kill civilians in Colombia's banana growing regions. According to Judge Marra, this reduces to the allegation that Chiquita "took a side" in the conflict, in the course of that side's efforts to defeat its adversary.
Judge Marra distinguished the Chiquita case from several others brought by Colombian victims against Coca Cola [6] and Drummond [7]. In those cases, although the alleged murders of union leaders may have occurred during a war, they were not really part of the war, and thus not actionable as war crimes. They were crimes committed under cover of war. The lesson for human rights lawyers is that one of the key things to prove in this type of case is the nexus between the crime committed, and the war itself. Crimes that occur during a war are not necessarily war crimes. We have seen similar arguments made in the context of lawsuits against private security contractors in Iraq [8]: that the contractors are not actually part of the war, they are part of the reconstruction of Iraq. As shallow as this may sound, the outcome of the case may depend on this determination.
Two of the claims in Chiquita, for torture and extrajudicial execution, are different from the others in that they are under law only committed by state actors. But Wolf states that a good case can be made for this nonetheless:
The banana growing region of Urabá was the birthplace of paramilitarism in Colombia, as an outgrowth of the Colombian government's program to organize private militia groups, called convivires [9], to assist the Colombian military. Although Chiquita Brands originally dealt directly with AUC commander Carlos Castaño, it later helped organize a system of convivir militias, which were really just front organizations of the AUC. The Colombian army also directly assisted the AUC in many of its operations, and most importantly, supplied the AUC with lists of names of guerrilla sympathizers to kill.
The victims' claims are bolstered by allegations that several shipments of arms passed through Chiquita's port facilities, including thousands of AK-47 assault rifles delivered to the AUC. The claims are also supported by the public statements of a number of AUC commanders who claim that Chiquita approached them —not vice versa—to organize what the Colombian Prosecutor General Mario Iguaran, called the "bloody pacification of Urabá." Salvatore Mancuso, Raul Hasbun, and Ever Veloza—all top AUC commanders involved with Chiquita Brands—all say that the banana companies depended on them for protection, and that there was nothing extortive at all about their relationship.
About 10% of the people suing Chiquita Brands were killed by the FARC, rather than the AUC. In the decade before Chiquita began paying the AUC, from about 1987-1997, Chiquita relied on the FARC for security in the Urabá region. At some point in the mid-1990s, Chiquita changed sides and helped organize the AUC to fight their old protectors.
The FARC victims do not make the same state action arguments, since the FARC was always fighting against the Colombian government and never on its side. But their claims are just as compelling, as long as they can prove Chiquita's intent. At any rate, Chiquita was certainly not indifferent to what the FARC was doing. Documents released by the Department of Justice to George Washington University, in response to a Freedom of Information Act request, show that FARC combatants were used as armed guards on Chiquita's plantations, to protect them from rival guerrilla groups in the area.
Chiquita spokesman Ed Loyd, in response to the ruling, called the Colombian plaintiffs' claims "outrageous." In a statement, he said that for the cases to succeed, the claimants would have to prove "that Chiquita shared the murderous aims of the AUC—not merely that Chiquita knew the AUC was a violent group." He added they would never be able to do this, "because it is not true."
The courts will now have to hear the cases, one by one. These include scores of people butchered with chainsaws and machetes, or with battery acid poured down their throats, young children slain, gang rapes, villages burned to the ground, and more. States Wolf: "The individual stories are beyond what most of us can even imagine. We can't imagine these kinds of things actually occur in remote areas of the world, but they do. And they are, apparently, just the cost of doing business, as far as some people are concerned."
"At some point, Chiquita may wish to settle all these claims, establish a fund and just be done with all this," Wolf concludes. "But there is no turning back now. More than a dozen law firms represent the 4,000 claims already filed. Some may want to settle, others may not. And a lot more may be on the way." With a 10-year statute of limitations on the ATS, there is still time for thousands more victims to come forward. "Now that the Chiquita case has been proven to be viable, there is no power on earth that can stem this tide." (Paul Wolf press release, June 5; CNN [10], June 4; BBC News [11], June 3)
See our last posts on Colombia [12], the civil conflict in Urabá [13] and the bananagate scandals [14].
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