Victims of Terrorists Cannot Sue Chiquita

     (CN) – Relatives of banana-plantation workers, political activists, and others killed by Colombian paramilitary forces cannot sue Chiquita in U.S. courts for its alleged support of torture, extrajudicial killings, and crimes against humanity, the 11th Circuit ruled.
     In 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).
     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.
     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 organization, which claimed to have 11,000 members in 2001, terrorized civilians throughout Colombia, engaging in executions, rape, torture and large-scale attacks on civilians whom the AUC 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 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.
     However, Chiquita allegedly continued to pay the AUC for its violent services until February 2004, and in 2007, the company pled guilty to violating federal anti-terrorism laws. The D.C. Circuit sentenced Chiquita to five years probation and levied a $25 million criminal fine.
     A federal judge found that plaintiffs’ 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” of Columbia.
     But the 11th Circuit reversed that decision on Friday in a 2-1 opinion, relying on the Supreme Court’s ruling last year in Kiobel v. Royal Dutch Petroleum Co. that the Alien Tort Statute (ATS) “governs domestically, but does not rule the world.”
     In that decision, the Supreme Court found that Nigerian refugees could not sue Royal Dutch Petroleum for allegedly conspiring with the Nigerian government to torture them for resisting oil drilling on their land.
     “We reiterate that the ATS does not apply extraterritorially,” said Judge David Sentelle, a D.C. Circuit judge sitting by designation on the 11th Circuit.
     “There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force,” he continued.
     Both judges who joined the majority opinion were appointed by Republican presidents.
     In her dissenting opinion, Judge Beverly Martin, appointed by President Obama, said that “the Kiobel court left the door open to the extraterritorial application of the ATS for claims made under the statute which ‘touch and concern the territory of the United States … with sufficient force to displace the presumption [against extraterritoriality].'”
     She said, “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.”
     In 1795, British colonists in Sierra Leone sued their American attackers under the ATS.
     Likewise, “the Colombian plaintiffs here should be allowed to hold an American corporation liable for its participation in a campaign of torture and extrajudicial killings in Colombia,” the dissent said.
     Plaintiffs said that they will appeal the ruling to the full 11th Circuit.

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