Drummond Cleared on Death Squad Murders

(CN) - Relatives of victims killed by Colombian paramilitary forces cannot sue Drummond Co. in U.S. courts for its alleged support of the murders and other war crimes, the 11th Circuit ruled.

Drummond, a coal mining company based in Birmingham, Alabama, allegedly conspired with right-wing paramilitary forces of Autodefensas Unidas de Columbia (AUC) to murder and terrorize union workers at mines owned by its Columbian subsidiaries.

The AUC was created in the 1990s to fight left-wing guerillas led by FARC and the National Liberation Army, which have been engaged in a decades-long conflict with the Colombian government.

AUC terrorized civilians throughout Colombia, engaging in executions, rape, torture and large-scale attacks on civilians it considered guerrilla supporters or sympathizers. It also targeted "socially undesirable" groups, such as indigenous persons, people with psychological problems, drug addicts and prostitutes.

The Colombian government criminalized membership in and support of paramilitary groups in 1991.

However, private security groups known as "convivir" units still organized under AUC leadership, and claimed to provide security for companies from left-wing attacks.

The 11th Circuit recently threw out a similar lawsuit against Chiquita Brands International and a prior suit against Drummond for allegedly funding AUC murders, basing its decision on the Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum.

Decided in 2013, Kiobel barred torture claims brought against Shell Petroleum under the Alien Tort Statute (ATS) because none of the activity underlying the suit took place in the U.S.

Similarly in this case, the 11th Circuit found that the alleged violations of international law all took place in Columbia, not in the U.S.

"Although we find that the U.S. citizenship and corporate status of Defendants, the U.S. interests implicated by Plaintiffs' claims, and the U.S. conduct alleged are relevant in considering whether Plaintiffs' claims have a U.S. focus and touch and concern the territory of the United States, we must conclude that, in these circumstances, those factors are not sufficient to displace the presumption against extraterritoriality," U.S. Circuit Judge Charles Wilson said, writing for the three-judge panel.

The Atlanta-based appeals court found that it did have jurisdiction over plaintiffs' claims under the Torture Victim Protection Act, but dismissed them on the merits.

It upheld the lower court's factual findings that there is "no evidence [Drummond President James] Tracy knew that noncombatants were being murdered along the rail lines," or that "AUC was allegedly being paid by Drummond."

While the TVPA does not require that a defendant personally execute the torture or extrajudicial killing, indirect liability for aiding and abetting requires plaintiff to prove "active participation" in the killings.

"To the extent that the district court's opinion may be construed as holding that, as a matter of law, command responsibility liability does not apply to Tracy and [President of Drummond's Columbian branch Augusto] Jimenez simply due to their statuses as civilians and/or officers of a private corporation, we disagree. However, the doctrine is not broadly available to support liability under the TVPA," Wilson said.

A corporate officer "could feasibly" be held liable under the TVPA, but the facts as presented by the plaintiffs cannot support their lawsuit, the 75-page opinion concluded. (Emphasis in original.)

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