Paul Wolf, '05: "In re Chiquita Brands: the Bellwether Human Rights Case"

In this article, Paul Wolf, ’05 alum, discusses the importance of the mass torts case, In re Chiquita Brands, International, which provides a roadmap for holding American corporations responsible for war crimes and crimes against humanity committed overseas. Paul Wolf is a human rights and international lawyer, and represents a group of about 2600 cases. Additionally, Jim Green represents about 100 cases. Searcy Denny Scarola Barnhart & Shipley, P.A.; Parker Waichman Alonso LLP; Boies, Schiller & Flexner LLP; Engstrom, Lipscomb & Lack; and several others are now involved in the case on behalf of the plaintiffs.

In re Chiquita Brands: The Bellwether Human Rights Case

By Paul Wolf, June 5, 2011

          Last Friday, U.S. District Judge Kenneth A. Marra issued a 95-page opinion in the case In re Chiquita Brands, International. One of the most detailed judicial opinions ever written in any U.S. human rights case, the Chiquita opinion provides a roadmap for holding American corporations responsible for war crimes and crimes against humanity committed overseas.

          The case arose from Chiquita's admitted payments of millions of dollars to the warring factions in Colombia's decades-old civil war: the Autodefensas Unidas de Colombia, or AUC, and the Fuerzas Armadas Revolucionarias de Colombia, or FARC. In March of 2007, Chiquita pled guilty to engaging in financial transactions with foreign terrorist organizations. Represented by now- Attorney General Eric Holder, the 4 billion dollar company cut what looked like a pretty good deal: admit their guilt, pay a $25 million dollar fine over a period of five years, and no individuals will be prosecuted.

          There was only one small problem. By admitting its guilt in a criminal proceeding, the company set itself up for an endless number of lawsuits, brought by the families of thousands of individuals slain by these groups during the years they were in Chiquita's pay.

          Judge Marra upheld a variety of claims brought under the Alien Tort Statute, or ATS, including summary execution, torture, war crimes and crimes against humanity. These claims are violations of international law, which was called the Law of Nations back in 1789 when the ATS was enacted.

          The crux of the case was not whether the AUC and FARC committed war crimes, torture and the like. That is really beyond dispute. The difficult issue in the Chiquita case was whether a corporation paying these groups could be held responsible for what they do, and if so, what more must be proven, other than the payments themselves?

          Following the reasoning used in the Khulumani and Talisman cases, brought in federal courts in New York, Judge Marra held that in order to be liable for the Colombian groups' crimes, Chiquita must also have intended that those groups commit the crimes, at least in some general way. Just knowing that the groups might massacre and torture innocent civilians would not be enough. In order to be held responsible, the victims' families must also show that Chiquita wanted those groups to do what they did.

          Following the New York cases, Judge Marra relied on international law standards for what constitutes "aiding and abetting" crimes committed by someone else. Since no consensus exists, at the international level, whether a mens rea (mental state) of "knowledge" or "intent" is required, the court chose the more restrictive standard of intent, in keeping with the U.S. Supreme Court's decision in Sosa v Alvarez Machain. In the Sosa case, the Supreme Court warned the lower courts not to be too quick to recognize "new" concepts in international law: any disputed concept is not actionable under the ATS. Using the same reasoning, Judge Marra struck the Chiquita plaintiffs' claims for terrorism, holding that terrorism is not a sufficiently defined legal concept in international law.

          The Chiquita victims need not prove this intent on a case by case basis, though. They don't have to prove that Chiquita specifically intended that the AUC, or FARC, torture or kill the specific individuals in this case, or even knew their identities. They must show that Chiquita intended the AUC and FARC to torture and kill civilians in Colombia's banana growing regions. According to Judge Marra, this reduces to the allegation that Chiquita "took a side" in the conflict, in the course of that side's efforts to defeat its adversary.

          Judge Marra distinguished the Chiquita case from several others brought by Colombian victims against Coca Cola and Drummond. In those cases, although the alleged murders of union leaders may have occurred during a war, they were not really part of the war, and thus not actionable as war crimes. They were crimes committed under cover of war. The lesson for human rights lawyers is that one of the key things to prove in this type of case is the nexus between the crime committed, and the war itself. Crimes that occur during a war are not necessarily war crimes. We have seen similar arguments made in the context of lawsuits against private security contractors in Iraq: that the contractors are not actually part of the war, they are part of the reconstruction of Iraq. As shallow as this may sound, the outcome of the case may depend on this determination.

          Two of the claims in Chiquita, for torture and extrajudicial execution, are different from the others in that they can only be committed by states. A private individual may beat a person or kill them, but only states can torture people and summarily execute them. For the AUC, this is not hard to prove. The banana growing region of Uraba was the birthplace of paramilitarism in Colombia, as an outgrowth of the Colombian government's program to organize private militia groups, called convivires, to assist the Colombian military - and do its dirty work. Although Chiquita Brands originally dealt directly with AUC commander Carlos Castano, it then helped organize a system of convivir militias, which were really just front organizations of the AUC. The Colombian army also directly assisted the AUC in many of its operations, and most importantly, supplied the AUC with lists of names of guerrilla sympathizers to kill.

          The victims' claims are bolstered by allegations that several shipments of arms passed through Chiquita's port facilities, including thousands of AK-47 assault rifles delivered to the AUC. The claims are also supported by the public statements of a number of AUC commanders who claim that Chiquita approached them - not vice versa - to organize what the Colombian Attorney General Mario Iguaran, called the "bloody pacification of Uraba." Salvatore Mancuso, Raul Hasbun, and Ever Veloza - all top AUC commanders involved with Chiquita Brands - all say that the banana companies depended on them for protection, and that there was nothing extortive at all about their relationship.

          About 10% of the people suing Chiquita Brands were killed by the FARC, rather than the AUC. In the decade before Chiquita began paying the AUC, from about 1987-1997, Chiquita relied on the FARC for security in the Uraba region. At some point in the mid- 1990s, Chiquita changed sides and helped organize the AUC to fight their old protectors.

          The FARC victims do not make the same state action arguments, since the FARC was always fighting against the Colombian government and never on its side. Their claims are just as compelling, as long as they can prove Chiquita's intent. At any rate, Chiquita was certainly not indifferent to what the FARC was doing. Documents released by the Department of Justice to George Washington University, in response to a Freedom of Information Act request, show that FARC combatants were used as armed guards on Chiquita's plantations, to protect them from rival guerrilla groups in the area. Whether the court accepts these cases as being "in the course of an armed conflict" remains to be seen.

          What comes next is a lengthy process of sorting through the cases and bringing them to trial, one by one. These include scores of people butchered with chainsaws and machetes, or with battery acid poured down their throat, young children, gang rapes, villages burned to the ground, and more. The individual stories are beyond what most of us can even imagine. We can't imagine these kinds of things actually occur in remote areas of the world, but they do. And they are, apparently, just the cost of doing business, as far as some people are concerned.

          At some point, Chiquita may wish to settle all these claims, establish a fund and just be done with all this. But there is no turning back now. More than a dozen law firms represent the 4000 claims already filed. Some may want to settle, others may not. And a lot more may be on the way. Under the ATS, the victims have six more years to come forward and file their claims, and there are many thousands of them still out there. Now that the Chiquita case has been proven to be viable, there is no power on earth that can stem this tide.

Judge Marra's 95 page opinion can be found at: http://www.icdc.com/~paulwolf/chiquitamemoop.pdf