Chiquita’s Alleged Victims Can Sue for Torture, But Not Terrorism
As fatster noted, Judge Kenneth Marra has allowed the suit against Chiquita for its support of Colombian terrorists to go forward. But the ruling is fascinating, because it holds that the plaintiffs can sue for Chiquita’s involvement in torture, but not for its involvement in terrorism.
Relying in part on a 1984 Robert Bork opinion finding there was ““international law and the rules of warfare as they now exist are inadequate to cope with this new mode of conflict,” Marra ruled the Alien Tort Statute doesn’t apply to terrorism. (Note, Marra also cited more recent District Court rulings on this issue.)
So in spite of our decade-long war against terrorism, it appears corporations can support terrorism in other countries and not be held liable.
But unlike terrorism, torture, extra-judicial killing, and crimes against humanity are widely recognized under international law to qualify for the ATS, so plaintiffs can sue for Chiquita’s involvement in it.
Marra also rejected Chiquita’s claim that it could not be held liable under the Torture Victims Protection Act.
Chiquita first argues that the “‘plain reading of the TVPA strongly suggests that it only covers human beings, and not corporations.’” First Mot. at 68 (DE 93) (quoting Exxon Mobil, 393 F. Supp. 2d at 28). This limitation to individuals, Chiquita contends, bars Plaintiffs’ TVPA claims against it, a corporation. Recent Eleventh Circuit precedents, however, hold that “‘an individual’ to whom liability may attach under the TVPA also includes a corporate defendant.” Sinaltrainal, 578 F.3d at 1264 n.13; see also Romero, 552 F.3d at 1315 (“Under the law of this
Circuit, the Torture Act allows suits against corporate defendants.”). Thus, under the precedent of this Circuit, the Court rejects Chiquita’s first basis for dismissal.
Particularly gratifying, a key part of Chiquita’s liability was its intent to support AUC’s violence. Marra notes, for example, that plaintiffs had shown Chiquita supported AUC in part to quell labor unrest.
The AUC’s agreement with Chiquita involved forcing people to work using threats and illegal violence, as well as the quelling of labor and social unrest through the systematic terrorization of the population of Uraba.
[snip]
The complaints here 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.
So in American courts, corporations like Jeppesen helping the US commit torture won’t be held liable for torture. But corporations like Chiquita helping terrorists and other governments torture may well be held liable!
The damage to this country and its Constitution that this man has done! Our only saving grace is imagining how much more worse it would be if this man had been given a lifetime appointment to the land’s highest court.
It was probably the right decision–plus his was just one of three concurring opinions ruling the same way.
Am I allowed to be amused that the idea that corporations are people with regard to campaign donations might now be biting Chiquita in the butt with regard to the Torture Victims Protection Act?
Yes, I’m aware that I need to keep my amusement to a minimum because Scalia will undoubtably come up with a way to get around this.
There are several central and south america countries with enduring histories of trade in food products with north america; with varying amounts of ancillary irregularities with respect to fairness of implementation of both international and various respective domestic laws. Consider an offTopic but in some ways parallel case involving Tyson, which is incorporated in Delaware, has corporate central office in Arkansas, and has international divisions as well; this is OT in the sense it is not an instance of selective due process in the various countries; yet, it may illustrate the lapses that occur when business relationships exist transcending international boundaries but in disproportionate configurations. In a sense, there were many similar instances in southern hemisphere countries involved in some degree of trade with the US during the years following 1959; many of which nations during any given decade might have appeared to be harboring perhaps 2 or 3 governments or protogovernments. I think L. Breuer, DOJ crim div was appropriate to address such matters in a speech at World Bank last month. I want to include a further divergent theme even more offTopic, but in the region, too; the issue of environment cleanup, this one is in Ecuador; courts are rife with these matters, and reparations historically decades in the offing, at best.
Thanks ever so much for staying on this story, EW, giving it the analysis it so richly deserves and revealing how entwined this corporation is with other entities doing despicable things. Its predecessor, United Fruit, was not called “El Pulpo” (The Octopus) for nothing.
Drummond Coal is in the same boat on a different tack.
http://www.scribd.com/doc/48918633/EleventhCircuitCourtDrummondReversal2011
US Court Revives Lawsuit Against Drummond Coal in Colombia Coal Killings
http://alabamacorruption.blogspot.com/2011/02/us-court-revives-lawsuit-against.html
If you look into the history of Drummonds conflicts with unions in Alabama and their subsequent strategy to move operations to Colombia to circumvent having to deal with unions it becomes clear why the murder of union opponents in Colombia began. Murder is much cheaper than negotiating.
In an interesting side note Uribe has floated the idea of those politicians involved in the murders by paramilitaries to plead guilty in exchange for no jail. You know.. looking forwards, not backwards.
http://www.elespectador.com/noticias/wikileaks/articulo-274274-soluciones-de-uribe-el-lio-del-paramilitarismo
OOps, meant to translate
The para-political scandal that erupted when then-president just Álvaro Uribe began his second term , not only changed the course of the dilemmas between the government and the opposition, but that once created legal uncertainty of such dimensions that put the national leaders to seek alterative truths about the ties between members of the political and paramilitary groups . This whole scene was caught on cables U.S. Embassy in Colombia.
In one of these reports, in the context of the then President Uribe announcements about the release of FARC prisoners for reasons of state, the embassy elaborated on the president’s sudden proposal that politicians accused of paramilitary links to be declared guilty and confess their activities, in exchange for the guarantee of no jail time. The argument was that it was impossible to send to jail all those involved in paramilitary activities.
In that same vein, and l cable to Washington detailing the other formula Uribe before the crisis of parapolitics: to promote a national debate to politicians, farmers, businessmen and other senior figures in the country, who had collaborated with the paramilitary groups. The idea was designed to receive freedom in exchange for full confessions of their activities, provided they were not involved in killings or in activities associated with violence.
However, the then director of communications for the Presidency, Jorge Mario Eastman, said that if successful the initiative, it should be a legislative process. Even more uncertain ground since, as emphasized by the Embassy in your cable, then the Congress and expressed a clear division to such proposals, fearing that any bill that benefits would for Congress could damage the legitimacy the legislature.
Amid the debate, Sen. Gustavo Petro then proposed a “stop law,” the U.S. Embassy in cable dated May 2007 described as a concept similar to the formula of President Uribe , while the second looked more like a strategy to free their political allies. Although at that time the Liberal Party has publicly rejected the option of “stop law, senior officials of the same community said they had contacts anyway to find solutions.
A month later, the U.S. Embassy sent another cable, this time taking as the source statements of the then legal adviser to the Presidential Palace, Mauricio Gonzalez, now a judge of the Constitutional Court, “in which she put into consideration the possibility submit a bill to reduce sentences to politicians linked to paramilitary groups. The aim was to create an alternative sentence that would involve not accept it in cases of heinous crimes and related conduct.
Washington made the report to evidence that the Colombian government did not know how to address the issue and that President Uribe was considering to go to Congress to seek a way out, making clear that it was not an amnesty law, but only reduced sentences in exchange for the confession of crimes . In other words, reduced jail time and permanent inability to participate in political activities.
The initiative sought that the sentences were proportionate to the degree of collaboration with paramilitary groups in order to avoid injustice. Yes, it was clear he could not rely on politicians involved in massacres. The cable was written how the legal adviser Palacio, Mauricio Gonzalez, acknowledged that several lawyers involved in the scandal lawmakers lobbied heavily for the conspiracy was listed as a political crime.
In the end, none of the proposals unsuccessful, the parapolitics took its course and today several members of Congress face not only convictions for conspiracy, but they are prosecuted for crimes against humanity. In addition, after a first wave of research between 2006 and 2008, as far this year has returned to revive the specter of parapolitics and leaders have come to swell the ranks of those under investigation for ties to paramilitary groups.
How will they sue for torture if State Secrets ™ gets invoked, as we know it will?
There are MOTUs involved, they will be protected, and this sets up the method to spike the investigation in my view, since State Secrets ™ has been a magic bullet every other time in court.
I agree with the court.
Predator drones to the boardroom are a much more appropriate way to deal with corporate misdeeds.
Another example of government support of illegal big business. Donations and support pay off big.
Well, maybe it’s better than sending in the Marines, as we used to do.
“Chiquita first argues that the ‘plain reading of the TVPA strongly suggests that it only covers human beings, and not corporations.'”
But since SCOTUS claims corporations are people now, Chiquita can eat a bowl of dicks. The law cuts both ways, banassholes.
I’m sure judge Scalia will find some loophole just for the Int’l Corps. so when being sued they can revert to being just businesses again. Hell, he did that for BV$H when as Preznit he was a person masquerading as a Corp. wasn’t he and he wasn’t ever held liable for all the crimes against humanity he authorized was he?
Eric Holder defended Chiquita Banana in favor of the workers the company poisoned and murdered.
That’s the kind of top banana Obama chose for AG.
This article recalls Latin America and those horrendous Death Squads–courtesy of the CIA.
Secret Wars of CIA Have Cost Taxpayers Billions LINK