Chiquita Can’t Shuck Colombia Terror Claims

     WEST PALM BEACH, Fla. (CN) – Relatives of banana-plantation workers, political and social activists, and other civilians killed by Colombian paramilitary forces may sue Chiquita over claims of torture, extrajudicial killings, war crimes and crimes against humanity, a federal judge ruled.
     In a multidistrict litigation, the plaintiffs accused Chiquita Brands International and Chiquita Fresh North America of complicity in hundreds of deaths because of its direct and indirect payments to the United Self-Defense Forces of Colombia (known by its Spanish abbreviation AUC). Chiquita was also allegedly involved with arms shipments into Colombia.
     The AUC was created in the 1990s to fight left-wing guerillas led by the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN), which have been engaged in a decades-long conflict with the Colombian government. The AUC, claiming to have 11,000 members by 2001, terrorized civilians throughout Colombia, engaging in executions, rape, torture and large-scale attacks on civilians whom the AUC considered guerrilla supporters or sympathizers. The AUC also targeted “socially undesirable” groups, such as indigenous persons, people with psychological problems, drug addicts and prostitutes.
     Although the Colombian government criminalized membership in and support of paramilitary groups in 1991, it allowed for the creation of private security groups known as “convivir” units, under AUC leadership. The units claimed to provide security from left-wing attacks in high-risk areas such as the Uraba region, where Chiquita operated its banana plantations.
     The U.S. government designated the AUC as a foreign terrorist organization in September 2001.
     The plaintiffs – all family members of AUC victims – claim Chiquita paid the AUC to drive the guerillas out of Chiquita’s banana-growing areas and used AUC forces to suppress union activity on the plantations.
     Despite advice from U.S.-based counsel, Chiquita continued to pay the AUC through its Colombian subsidiary, Banadex, until February 2004. According to the plaintiffs’ complaints, Chiquita made direct payments to the AUC and also used the accounts of Banadex executives to indirectly fund the paramilitaries.
     (Chiquita sold Banadex in June 2004, but it continues to import Colombian bananas from independent suppliers).
     The plaintiffs claimed they first learned of Chiquita’s assistance to the AUC in 2007, when the company pleaded guilty to violating federal anti-terrorism laws. The D.C. Circuit sentenced Chiquita to five years’ probation and a $25 million criminal fine.
     In their amended complaints, the plaintiffs alleged various claims against Chiquita, including material support for terrorism, torture, crimes against humanity, war crimes, extrajudicial killing and other human-rights violations.
     Chiquita asked the court to dismiss all claims for lack of subject-matter jurisdiction and failure to state a claim.
     U.S. District Judge Kenneth Marra addressed Chiquita’s arguments in four separate rulings in Florida’s West Palm Beach- and Fort Lauderdale-based federal courts.
     In the lengthy rulings, Marra rejected the plaintiffs’ contention that Chiquita was directly liable for terrorism and for providing material support to the AUC, a terrorist organization, under the Alien Tort Statute (ATS). Although the court found that non-U.S. nationals could raise terrorism claims under the ATS, it noted that “a claim for terrorism in general, or material support thereof, is not based on a sufficiently accepted, established, or defined norm of customary international law to constitute a violation of the law of nations,” and therefore the court lacked jurisdiction over the plaintiffs’ terrorism-based claims under the ATS. “Reliance on domestic laws, even those of the United States, cannot support recognition of an international norm under the ATS,” the order states.
     Marra added that the “plaintiffs’ allegations are not limited to any specific, narrow category of conduct, such as hijacking civilian aircraft or suicide bombing civilian targets. Rather, plaintiffs allege a broad range of alleged terrorist acts, linked only by the facts that the victims are civilians and the intent is to intimidate.”
     In a second motion to dismiss, Chiquita argued that the court’s ruling on the terrorism-related claims disposed of the plaintiffs’ remaining ATS claims.
     The court rebuffed the argument and upheld the plaintiffs’ claims for torture and extrajudicial killing. Marra noted that Chiquita had paid the AUC with the intent to assist the organization’s war crimes, being fully aware that the AUC would direct its war efforts in the areas in which the plaintiffs’ decedents lived.
     What’s more, the plaintiffs sufficiently pleaded state action – a prerequisite for torture and extrajudicial-killing claims – by alleging that the Colombian government had played a role in training and arming the AUC, according to the ruling.
     The court also upheld the plaintiffs’ claim for war crimes, finding that the complaints sufficiently claimed that the AUC had committed the alleged crimes because of, and not merely during, the civil war in Colombia. Marra’s rulings cite various excerpts from the complaints, reflecting the AUC’s intention to torture and kill the plaintiffs’ relatives to further its military objectives.
     As for the claim of crimes against humanity, the court found that the plaintiffs alleged facts of both “widespread” and “systematic” attacks by the AUC against civilians in Colombia. And, while some complaints contained stray allegations of victims killed for partly personal reasons, most complaints asserted allegations of crimes carried out in furtherance of the war, the ruling states.
     When addressing Chiquita’s liability for the alleged crimes, Marra concluded that the complaints “contain sufficient ‘factual content that allows the court to draw the reasonable inference’ that Chiquita assisted the AUC with the intent that the AUC commit torture and killing in the banana-growing regions.”
     The order adds that “the fact that Chiquita may not have had a military objective of its own, or that it was motivated by financial gain, is not dispositive. A ‘lack of motive does not negate intent to assist the underlying acts that may be war crimes.'”
     Marra also upheld the plaintiffs’ claims for torture and extrajudicial killing under the Torture Victim Protection Act but dismissed their state-law claims, finding that the civil laws of different U.S. states do not apply to the extraterritorial conduct alleged in the complaints.
     The court declined to rule on the plaintiffs’ claims under Colombian law.

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