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Occidental Averts Suit for Colombia Massacre

PASADENA, Calif. (CN) - Occidental Petroleum is not liable for an air raid in Colombia that left 17 dead, the 9th Circuit ruled Wednesday, citing diplomatic grounds.

Luis Alberto Galvis Mujica and others sought to prove that Occidental had contracted with the Colombian air force and Florida-based AirScan to guard against guerrilla attacks on its pipeline in Santo Domingo by leftist militants.

Even though it knew that the insurgents were not in the town, a Colombian Air Force helicopter dropped cluster bombs on Santo Domingo during a security flight over the Occidental pipeline on Dec. 13, 1998.

In addition to demolishing local properties and wounding dozens, the raid killed 17 people, including six children. One plaintiff, Mario Galvis Gelvez, lost his wife, daughter and niece.

A Colombian criminal court convicted the pilot and co-pilot of the helicopter of murder. They received 30-year prison sentences. The Colombian government awarded Galvis $55,800 in compensation, and each of his sons $21,762.

The plaintiffs alleged that AirScan pilots and a Colombian army liaison flew a plane that provided logistical support for the raid.

U.S. District Judge George Wu dismissed the federal complaint that the families filed in California, however, and the 9th Circuit affirmed, 2-1, Wednesday, citing the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co.

The majority found no "valid claim" under the Torture Victim Protection Act or the Alien Tort Statute, and saidn an amended complaint would not "serve any purpose."

"The crimes plaintiffs allege are abominable, but the facts of this case nonetheless favor applying adjudicatory comity," Judge Jay Bybee wrote for the majority. "The Colombian courts have shown themselves willing to vindicate plaintiffs' legitimate claims against that country's government for its military's acts, and the government has proven itself both willing and able to hold the individuals responsible for the bombing to account."

U.S. District Judge Thomas Zilly, sitting by designation from Seattle, wrote in partial dissent that the court should have given the victims' families a chance to amend their complaint after more than a decade fighting the corporations in court.

"Having enjoyed the benefits of incorporation within the United States, defendants in this case should also be required to answer in a court of the United States for any role they might have played in the 1998 bombing of Santo Domingo," Zilly wrote.

Zilly noted that the compensation from the Colombian government was purely "symbolic."

"Because the majority would, without good reason, deny plaintiffs the right

to seek basic justice, I must dissent," the dissent states.

Zilly also faulted the court for "needlessly announc[ing] novel standards that will thwart the ability of not only these plaintiffs, but also of every other alien who seeks to hold a U.S. Corporation accountable for atrocities committed abroad."

Judge Sandra Ikuta joined the majority.

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