A woman is conforted as she cries next to a funerary urn with the remains of her relative disappeared during the Colombian civil war, in a ceremony in Medellin, Colombia on March 21, 2014. Relatives of 18 victims received the remains of their loved ones, which were recently found in common graves due to information given by demobilized combatants of both sides, the leftist guerrillas and the right-wing paramilitary groups, in the framework of the country's peace process.
A woman is conforted as she cries next to a funerary urn with the remains of her relative disappeared during the Colombian civil war, in a ceremony in Medellin, Colombia on March 21, 2014. Relatives of 18 victims received the remains of their loved ones, which were recently found in common graves due to information given by demobilized combatants of both sides, the leftist guerrillas and the right-wing paramilitary groups, in the framework of the country\’s peace process.

A federal appeals court on Thursday moved to throw out a lawsuit brought by thousands of Colombians who claim the banana grower Chiquita is responsible for torture, injury and death perpetrated by right-wing paramilitaries in their country.

However, there were signs that the split decision by the three-judge panel could be on shaky ground.

In a dissenting opinion, one judge held that the court had misread a key statute and could “disarm innocents” against the misconduct of American companies in other countries.

Plaintiffs attorneys also said they might ask the full 11th Circuit Court of Appeals to hear the appeal. The decision did not appear to address all claims even though it ordered the outright dismissal of the case, they said.

“This decision is a little strange,” said Paul L. Hoffman, who argued the case on behalf of the Colombian victims. “It doesn’t seem to be tied very much to what was actually argued in the briefs.”

Chiquita said the decision reflected its innocence.

“We are gratified that the U.S. Court of Appeals has now agreed with us and that the claims have been dismissed. The decision reinforces what Chiquita has maintained from the beginning — that Chiquita is not responsible for the tragic violence that has plagued Colombia,” spokesman Ed Loyd said in a statement.

Thursday’s ruling continued a recent spate of decisions that have blocked international human rights lawsuits in the wake of landmark Supreme Court cases in recent years.

Activists say this has cut off a key avenue of redress for victims of corporate misdeeds in the developing world.

Chiquita in 2007 admitted it had paid nearly $2 million in protection money to right-wing paramilitaries known as the United Self-Defense Forces of Colombia, or AUC, whom the State Department designated as terrorists in 2001.

In a case brought by the Justice Department, the company admitted guilt and paid a $25 million fine.

The company claimed it had been the victim of extortion, but federal prosecutors said it had made a calculated decision to pay off killers.

The Colombian plaintiffs are suing Chiquita in attempt to hold the company liable for the actions of the AUC.

The action was brought in part under the Alien Tort Statute, an 18th century law that allows foreign nationals to sue in the United States for violations of international law. The Supreme Court greatly curtailed the law’s application last year, when it held unanimously that the law could not be applied to conduct occurring outside the United States.

In that case, known as Kiobel v. Royal Dutch Petroleum, the court dismissed the claims of Nigerians who sued the Dutch, British and Nigerian companies, claiming they had colluded in the local government’s brutal suppression of indigenous resistance to oil exploration and production.

For the statute to apply to events occurring on foreign soil, they must “touch and concern” U.S. territory with enough force to outweigh a presumption against “extraterritorial application,” the Supreme Court held.

In Thursday’s decision, the majority held that the plaintiffs’ claims under the Torture Victims Protection Act were invalid, because the Supreme Court had held in 2012 that the law applied to individuals and not to companies, like Chiquita.

Circuit Judges Peter T. Fay and David B. Sentelle, an appellate judge from Washington, D.C., also held that Kiobel doomed the Alien Tort claims in Chiquita case as well.

It was not enough that Chiquita is an American company, they said.

“The distinction between the corporations does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts,” they wrote.

However, Richard L. Herz, an attorney for the organization Earth Rights International, which represented plaintiffs in the case, said the court appeared to have overlooked crucial aspects of the case.

Individual defendants, including former CEO Cyrus R. Friedheim Jr., former Vice Chairman Keith E. Lindner and former Chief Financial Officer Warren J. Ligan, are named in addition to Chiquita Brands International Inc.

Herz also said the judges did not appear to have addressed tort claims under Colombian law, another basis for the lawsuit.

“It’s certainly the case that the basis of the decision does not affect the Colombian law claims or the Torture Victims Protection claims against individuals,” said Herz.

In her dissent, Circuit Judge Beverly B. Martin said that Chiquita’s identity as an American company, and the fact that the payments to AUC had allegedly been approved at its Ohio headquarters, gave the court jurisdiction under the Alien Tort Statute.

That law was designed to offer accountability when Americans misbehave abroad, she said.

“These plaintiffs seek relief in a United States court for violations of international law committed by United States citizens while on United States soil,” wrote Martin.

“By failing to enforce the [Alien Tort Statute] under these circumstances, I fear we disarm innocents against American corporations that engage in human rights violations abroad.”

Martin cited trial and appeals court decisions, handed down since Kiobel, which she said had held that the law could be invoked “when a defendant aids and abets overseas torts from within the United States.”

Circuit Judges Fay and Sentelle called Martin’s findings “thoughtful” but still rejected them.

“Any tort here, whether styled as torture or under some other theory, occurred outside the territorial jurisdiction of the United States,” they wrote.

According to Hoffman, the plaintiffs’ attorney, the split decision reflected the evolving understanding of the Alien Tort Statute since the Kiobel decision, a case which Hoffman had argued before the Supreme Court.

“The courts have put roadblocks in the way of different plaintiffs obtaining justice, and this case is just one example of that,” he said, adding that he would likely seek a rehearing before the full 11th Circuit.

“All of our clients are told from the beginning, it’s a long haul,” Hoffman said.

 

 

 

Douglas Gillison

Douglas Gillison

Douglas Gillison is a former staff writer for 100Reporters. His investigative projects have included the declassification of 1,300 pages of FBI records from a 1997 political massacre and the exposure of payments by a publicly traded mining company that are now the subject of an international criminal bribery investigation.

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