US judge allows Colombian paramilitary victims to sue Chiquita, in landmark ruling
World War 4 Report June 6, 2011
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, 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 and Talisman 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 [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 and Drummond. 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: 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.
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