As a human rights lawyer, Jonathan Kaufman is used to hearing tales of horrific abuse heaped on innocent civilians by terrorist groups.
But, he said, even he has a hard time listening to his Colombian clients describe how relatives were kidnapped, shot, dismembered and often decapitated by death squads financed, in part, by Chiquita Brands International to increase profits in the violence-plagued South American nation.
That’s why he said he and other lawyers who are representing the families of thousands of victims are asking the U.S. Supreme Court to allow them to sue the North Carolina-based banana giant in federal court in West Palm Beach for committing human rights violations on Colombian soil.
While his clients can pursue the company for wrongful death, assault, battery and negligence, Kaufman said it is important for his clients to hold Chiquita fully accountable.
“It’s a major thing for people to stand up in court and say we were the victims of war crimes and crimes against humanity,” said Kaufman, legal advocacy coordinator for the Washington-based nonprofit EarthRights International.
The petition filed with the high court late last month comes more than three years after U.S. District Judge Kenneth Marra agreed that families of those slain by the Colombian para-military group, Autodefensas Unidas de Colombia, could sue Chiquita under the Alien Torts Statute.
But in July, the 11th District Court of Appeals in Atlanta reversed that decision. The law, that allows people to seek redress in U.S. courts for human rights violations, can’t be used against Chiquita because none of the deaths or action surrounding them occurred in the United States, the court ruled.
“There is no allegation that any torture occurred on U.S. territory,” it wrote.
To West Palm Beach civil rights attorney Jim Green, the conclusion is absurd. Charged by the U.S. Justice Department, Chiquita in 2007 pleaded guilty to doing business with a terrorist organization and paid a $25 million fine. Further, Green said, the decisions to provide money and weapons to AUC were made at the company’s former headquarters in Cincinnati.
Unlike other cases the U.S. Supreme Court has rejected because there was no connection to the United States, the deaths of thousands of Colombians were directed by people here, said Green, who represents some of the families that are suing Chiquita.
In a dissenting opinion, U.S. Circuit Court Judge Beverly Martin agreed. “Critically,” she wrote, “the (victims) instead have alleged that Chiquita’s corporate officers reviewed, approved and concealed payments and weapons transfers to Colombian terrorist organizations from their offices in the United States with the purpose that the terrorists would use them to commit extrajudicial killings and other war crimes,” she wrote.
To say the Alien Tort Statute doesn’t apply is to “disarm innocents against American corporations that engage in human rights violations abroad,” she wrote.
Further, she wrote: “The United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the law of nations with impunity.”
Neither Chiquita officials nor their lawyers returned phone calls for comment about the latest volleys fired in the complex litigation. It began in 2008 when more than a half-dozen lawsuits were filed against it around the country. The cases were all transferred to West Palm Beach, so the overlapping legal issues could be decided by one judge.
In the past, Chiquita officials have claimed the company was a victim, too. It doesn’t dispute that it paid AUC $1.7 million from 1997 to 2004. However, it describes the payments as extortion and says in return, AUC agreed not to interfere with company operations or harm Chiquita workers.
During those years, the AUC killed 3,778 people and displaced about 60,000 in its war on the guerrillas in Urabá, one of several lucrative banana-growing regions in Colombia that was wracked by violence, according to court documents.
After Marra in 2011 ruled that Chiquita could be sued under the Alien Tort Statute, company officials insisted allegations that it committed human rights violations would never stick. “Plaintiffs will have to prove that Chiquita shared the murderous aims of the (terrorist group) — not merely that Chiquita knew that (it) was a violent group,” the company said. “The plaintiffs will never be able to prove this, because it is not true.”
Now they likely will make similar claims to the nation’s highest court.
Meanwhile, another group of lawyers is moving forward with related claims against Chiquita. In a separate lawsuit, attorneys are seeking damages for the deaths of five Orlando-based missionaries who were executed in 1995 by Fuerzas Armadas Revolucionarias de Colombia, which was established in 1964 as the military arm of the Colombia Communist Party.
Rejecting arguments by Chiquita lawyers, Marra earlier this month said the suits filed on behalf of the families of slain members of the New Tribes Mission could proceed under the Anti-Terrorism Act. Citing Chiquita’s own admissions that it paid FARC, a known terrorist organization, $20,000 to $100,000 a month from 1989 to 1997, Marra said the Anti-Terrorism Act seems to be tailor-made for the lawsuit filed by the missionaries’ families.
“If plaintiffs in this case, who allege that Chiquita supplied a group that had been known to harm Americans and that was designated as a terrorist organization by the State Department with funds and weapons, cannot state a claim, it is absolutely unclear what fact pattern would ever satisfy the requirements,” Marra said.