Colombian families whose relatives were massacred by paramilitaries cannot sue the Chiquita Brands fruit company in federal court, the 11th Circuit United States Court of Appeals ruled last week. The victims charged that Chiquita was responsible for the deaths by funding a right-wing paramilitary group.
A panel of judges decided the victims did not have standing in U.S. court, even though the North Carolina-based banana giant pled guilty to U.S. criminal charges in 2007. The victims were claiming potentially billions of dollars in damages from the company.
The ruling was a big victory for the banana giant — and for the rights of American companies to finance international terrorism.
In a general statement sent to ThinkProgress, a Chiquita spokesman said, “Chiquita has long maintained that these cases do not belong in the U.S. courts and that the claims should be dismissed. We are gratified that the U.S. Court of Appeals has now agreed with us.”
As for the families whose loved ones were murdered, Chiquita says it has “great sympathy for the Colombians who suffered at the hands of these Colombian armed groups” but asserts “the responsibility for the violent crimes committed in that country belongs to the perpetrators, not the innocent people and companies they extorted.”
The perpetrators, in this case, are the United Auto-Defense Forces of Colombia (AUC), the paramilitary umbrella group responsible for the most heinous human rights atrocities committed over the course of Colombia’s 50-year armed conflict.
By its own account, Chiquita made at least 100 payments — $1.7 million in total — to the AUC between 1997 and 2004. In the decade prior to that, the company had maintained a similar arrangement with the Revolutionary Armed Forces of Colombia (FARC), the nominally leftist rebel group chased out of the region by the combined (and coordinated) efforts of the AUC and Colombian military.
During that period, Colombia’s banana-growing region became the key battleground in the armed conflict, which had already degenerated into “by far the biggest humanitarian catastrophe of the Western Hemisphere,” in the words of then-UN Undersecretary for Humanitarian Affairs Jan Egeland. Civilian populations throughout the Uraba region– and journalists, labor organizers, human rights advocates, community leaders, and left-leaning politicians, in particular — were targeted as part of a crude but effective paramilitary total war.
Between 1997 and 2004, 3,778 people were murdered in Uraba, with an additional 60,000 forced into what is now the second-largest internally displaced population in the world. Between 1991 and 2006, 668 unionists were killed from the main banana-workers union alone, according to the National Union School.
If the testimony of several former high-level paramilitaries can be believed, Chiquita played an integral role in the formation of Uraba’s so-called Quintuple Alliance, a sprawling conspiracy made up of politicians and public servants, large landowners and business interests, military officials, paramilitaries, and narcotraffickers. This would at least partly explain why, in 2001, some 3,400 AK-47 assault rifles sent to the AUC from Nicaraguan trafficking partners were unloaded by a Chiquita subsidiary on a Chiquita dock, the same dock where a company official had recently paid $30,000 in bribe money to Colombian customs officials.
In its 2007 settlement with the Justice Department, Chiquita assured it never received “any actual security services or actual security equipment in exchange for the [AUC] payments.” Instead, the company says it paid the AUC out of concern for its employees — something it was not generally inclined to express through things like wage increases, favorable labor conditions, or a pesticide-free work environment, according to former members of the banana-workers union.
The invaluable National Security Archive has since released [AS2]over 5,500 pages of internal company communications and legal findings indicating that, at the very least, Chiquita was aware that the payments could be breaking the law. Chiquita’s own legal counsel had warned, for instance, that any indirect benefits received from the payments, regardless of intent or knowledge, would be enough to expose the company to criminal liability and that any extortion exemption would be nullified by the repeated nature of the transactions.
Chiquita’s “sensitive payments” continued for two years after the AUC was officially labeled a “foreign terrorist organization” by the State Department in 2001 and for another 10 months after the company entered into talks with the Justice Department, the same time it claims to have become aware of the designation. (Of the $1.7 million total the company reportedly paid to the AUC, $300,000 was sent following the start of negotiations with the Justice Department.)
The company, having knowingly and repeatedly approved transactions its own lawyers were flagging, also went to great lengths to disguise the payments, using special vocabulary in company accounting records and various intermediaries on the ground in Colombia, including elements of the alleged Quintuple Alliance.
Signed in 2007, the Justice Department agreement required Chiquita to pay $25 million in fines for having financed terrorism, $15 million less than the company reaped selling its Colombian subsidiary, its most profitable holding at the time. None of the dozen high-level officials who approved the payments has been prosecuted since. Nor have any reparations been paid to the victims, over 2,000 of whom have joined in seeking multi-billion-dollar damages against the company.
“We’re pitching it to the middle,” said Terry Collingsworth, one of the chief litigators for the Chiquita victims, in an interview with ThinkProgress. “Not only did they know, but they benefited from it.”
In the past decade, Collingsworth has brought similar suits against Coca Cola, Dole Fruits, and the Drummond Company — all also accused of paramilitary ties in northern Colombia — using an obscure piece of 18th-century anti-piracy legislation to “give teeth to international human rights law in the U.S. legal system.”
The precedence at stake is potentially enormous, once you consider the track record multinationals like Chiquita have been dragging around for years now. But the Chiquita suit, to date, has been decided not on the question of individual merit, but rather on what appears to be a radical ideological opposition to the legitimacy of international human rights law in the first place.
Building on a recent Samuel Alito-Clarence Thomas concurrence so extreme not even Antonin Scalia would sign onto it, Justice David Sentele, a Reagan appointee sitting in on the 11th Circuit, ruled that the Chiquita suit lacked jurisdiction on its face, because “all the relevant conduct [...] took place outside of the United States.”
“This opinion is shockingly negligent in terms of just actually dealing with the facts and dealing with the issues,” said Collingsworth, who is confident the decision will be overturned on review or appeal. “It’s almost flippant in terms of just gleefully throwing the case out.”
Steven Cohen is the editor of Colombia Reports, an independent English-language news site.