Benjamin Hoffman's blog

According to a recent report, Colombian national prosecutors are reopening a previously closed criminal investigation into the role of the banana company Chiquita Brands International, Inc., and thirteen of its directors, in financing paramilitary violence, such as torture and extrajudicial executions, in the 1990s and early 2000s. Chiquita’s role in abetting paramilitary violence is the subject of ERI’s lawsuit Doe v. Chiquita.

In addition to Chiquita, six other banana companies, including Del Monte and Dole, reportedly will be subject to the prosecutor’s investigation.

In 2007, Chiquita pled guilty to U.S. federal criminal charges and paid a $25 million fine, for making more than 100 payments, totaling more than $1.7 million, to the paramilitary organization known as the AUC, which had been designated as a Foreign Terrorist Organization by the U.S. government.

Doe v. Chiquita and several other federal civil lawsuits target Chiquita’s role in funding, arming, and otherwise supporting paramilitary organizations in Colombia in their campaign of terror against trade unionists, banana workers, political organizers, social activists, and the civilian population in general. The lawsuits allege that Chiquita engaged in this practice of funding paramilitary activity amounting to crimes against humanity in order to maintain its profitable control over Colombia’s banana growing regions and to produce bananas in an environment free from labor disputes and social unrest. Judge Kenneth A. Marra of the U.S. District Court for the Southern District of Florida has ruled that despite objections from Chiquita, the claims for violations of international human rights should be allowed to proceed in federal court.

At the end of August, I had the privilege of giving a seminar to a group of 25 indigenous leaders from different parts of the Peruvian Amazon as part of a four-week-long intensive training program run by the Escuela Amazónica de Derechos Humanos (Amazon School for Human Rights). The program, started by four alumni from the Amazon School for Human Rights and the Environment and now in its sixth year of operation, aims to strengthen the knowledge and capacity of indigenous leaders to confront extractive industries that affect their communities. I was tasked with presenting a half-day seminar on litigation in U.S. courts as an advocacy strategy in defense of indigenous peoples.

I started the seminar by asking for a show of hands: how many people lived in communities affected by exploration or extraction activities of oil or gas companies? Mining companies? Loggers? Before long, every student had their hand raised—not a single student participating in the training program lived in a community unaffected by encroaching extractives. With the entire Peruvian Amazon divided into different concession areas, the result was not surprising. I then asked for another show of hands: how many of the companies involved were foreign? Again, a large number of hands shot up.

To focus the discussion, I asked the students to imagine that their community was affected by a U.S. oil company operating in their territory and causing damage to the community’s environmental health. The story I told was loosely based on my experience working with the nearby communities of Canaan and Nuevo Sucre, which I wrote about last week, and with the communities in the Corrientes River Basin that are the subject of our case against Occidental Petroleum. As I told the story, I noticed nearly every student nodding their heads in understanding—regardless of the specifics of their personal experience, the elements of the story resonated with the students, and touched upon a deep understanding of what it means to be affected by extractive industry.

In early September, frustrated by a negotiation process seemingly going nowhere, members of the Shipibo indigenous community Canaan de Cachiyacu non-violently seized control of the oil wells and pipelines within their territory belonging to the company Maple Gas Corporation del Perú, SP. The community has informed government mediators that they intend to maintain this peaceful protest action—and the resulting suspension of oil activities—until the company and government officials make a genuine commitment to redressing the injuries that they attribute to Maple Gas’s oil activities. Although ERI has no involvement in the shutdown, we have been consulting with the communities and share their frustration.

Canaan oil facilities. Photo courtesy of Ronald Suarez.

Maple Gas, a subsidiary of Maple Energy plc and the recipient of financing from the International Financial Corporation (IFC) of the World Bank, has been operating in oil Lot 31-B—a concession which overlaps with the territory of Canaan—since 1994. During this period of operation, community members from Canaan have complained of human rights and environmental abuses. In particular, the community has suffered from repeated oil spills into community drinking and bathing water, events which they believe have led to contamination of land used for cultivation, depletion of fish-supply, and troubling health problems in the community. We at ERI, partnering with the local and regional indigenous federations, prepared a report in August 2005 verifying claims raised by the community. 

On Friday, May 11, 2012, the Fourth Circuit Court of Appeals, sitting in a rare 14-judge en banc panel, determined that claims can move forward in the Al-Shimari and Al-Quraishi cases against two private military contractors (L-3—formerally Titan—and CACI) alleged to have tortured and abused the plaintiffs at Abu Ghraib and other detention centers. In so doing, the Fourth Circuit nullified an earlier three-judge panel decision that both dismissed the cases and threatened to impose an expansive and dangerous limit on the ability of victims of abuses by military contractors to use state laws to seek a remedy for the harms they have suffered.

The Al-Shimari and Al-Quraishi cases stem from allegations of torture at notorious Iraqi prisons such as Abu Ghraib. The 76 plaintiffs alleged that the private military contractors, through their employees, agents, and government co-conspirators, deprived the prisoners of basic necessities, beat them, ran electric current through their bodies, subjected them to sexual abuse, humiliation, and traumatizing mock executions.

At the district court level, the contractors raised a number of different arguments to attempt to have the cases dismissed, including arguments that the contractors should be given the same immunities afforded the U.S. military, that the case raised nonjusticiable “political questions” meant for the executive branch alone, and that the state law tort claims were preempted under the doctrine of foreign affairs preemption for their interference with the federal government’s conduct of the war in Iraq. These types of arguments raised by the defendant contractors, if accepted, would dangerously limit the remedies available to victims of abuse by military contractors in the future.

While these arguments were rejected by the district courts in both cases, a divided three-judge panel of the Fourth Circuit accepted the appeal, and dismissed the cases for a variety of reasons, including through the application of a grossly expansive interpretation of the preemption doctrine.

Today, thousands of Peruvians are now participating in a "Grand National March for the Right to Water and Life." Many of the marchers are setting off from the lagoons of Cajamarca, or from the Amazonian jungle, or from the Southern Andes, marching hundreds of miles to arrive in the capital, Lima during the second week of February. The march seeks to broadly respond to a public policy in Peru of valuing a particular model of economic development over the health and wellbeing of communities adversely affected by that "development" — particularly when large resource-extraction projects threaten a community’s water supply.

The focal point for the march is the Conga project, a proposed gold mining operation in Cajamarca, which presents an emblematic example of many of the most salient issues to which the march seeks to respond. Here in our Peru office, we have been keeping a close eye on the development of the project and its opposition. The project was recently put on hold after public protests and a report prepared by the Ministry of the Environment called attention to the environmental risks associated with the proposal. Now, however, a new executive cabinet—formed in the aftermath of the political upheaval following the release of the Ministry of Environment’s report—seems likely to give the project the go-ahead in spite of a great deal of opposition from local civil society organizations and the regional government.

The march has quickly taken on a much broader appeal. It is serving as a rallying point for similar concerns and a growing social movement opposing development policies that leave communities impoverished and sick. Coordinated activities are being organized throughout the country, including by farmers in the north, by those living in the southern highlands, and by organizations of indigenous peoples protesting the encroachment and contamination caused by petroleum companies in the Amazon,

In the past two weeks we at ERI have submitted amicus briefs in three cases before the Ninth Circuit and Fourth Circuit Court of Appeals, weighing in on a legal doctrine known as “foreign affairs preemption.”  While these briefs will likely receive less attention than the two Supreme Court amicus briefs that ERI will be submitting later this week in the Kiobel and Mohamad cases, they raise key arguments with respect to the ability to use state law claims to respond to human rights abuses occurring abroad.

Both federal appeals courts are sitting “en banc” to hear these cases, meaning that unlike an ordinary appeal where only three judges decide the case, many more judges—from eleven in the Ninth Circuit to all fourteen active judges on the Fourth Circuit—will be weighing in to set a single decision for the whole Circuit. The stakes are high.

First a few words on the doctrine.  The foreign affairs preemption doctrine was created in order to protect the federal government’s control over matters of foreign policy.  When it applies, it allows a court to refrain from applying state laws that intrude upon federal prerogatives in the field of foreign policy.  Those state laws are said to be “preempted”—meaning that they are superseded by the federal interest and cannot be applied.  Foreign affairs preemption applies either when there is a “conflict” with a specific federal law, or when the entire “field” is outside of the state’s authority, because the Constitution puts in the hands of the federal government.

The Peruvian town of Cajamarca and its neighboring communities have come to a complete halt as thousands of local residents have united in protest against a mining company’s plan to drain the communities’ principle source of water for the purposes of opening up a gold mine. 

The mining company, Minera Yanacocha, is a gold and copper mining joint venture owned primarily by Newmont Mining Corporation of Denver, Colorado, with funding from the International Finance Corporation (IFC), the private-investment arm of the World Bank Group.  It operates the largest open pit gold mine in Latin America, just 18 km outside of the town of Cajamarca, and is now looking to further expand that mine with a new project, called Conga.

It is the Conga project that is bringing the town of Cajamarca to a standstill. And rightly so.  The company’s plan for the project is to move all the water from nearby lagoons into separate reservoirs, claiming that such a task will neither threaten the communities’ access to water, nor cause irreparable damage to the environment.  Although the company prepared an Environmental Impact Assessment, and the Ministry of Energy and Mines approved it, the Minister for the Environment has thoroughly critiqued the report, finding that the project raises serious environmental objections and requires additional hydrogeological analysis. 

The potentially affected communities are not buying the company’s environmental claims either.  They have already seen the destructive forces of Yanococha’s mining operations and the company’s powerful influence in national politics.  For the communities, there is a real fear that the new Conga Project is simply more of the same, and they are taking action to stop it. 

Thousands of residents have gone on strike, and joined in massive and non-violent protests and vigils demanding that President Humala himself put a halt to the project.  All eyes have turned to Cajamarca as the first and defining test of President Humala’s commitment to sustainable development in the country.  Will he stand with the community and reject a potentially devastating mining project, or will he capitulate to the powerful economic interests pushing for resource extraction at nearly any cost? 

On October 21, two days after thousands of Bolivia’s indigenous peoples completed their 500 km march to La Paz in protest of the government’s plan to construct a highway through their territory, President Evo Morales scrapped the construction plan, announcing that he would govern by obeying the people.

The massive highway construction project was intended to fulfill Brazil’s dream of having access to the Pacific Ocean and expand their growing economy.  This highway is part of a series of multi-national infrastructure projects of the Initiative for the Integration of Regional Infrastructure in South America (IIRSA).  The proposed highway in Bolivia was set to pass through the Isiboro-Secure Indigenous Territory and National Park (TIPNIS), a protected area and home to several indigenous communities.  The Bolivian government had approved the plan, and the construction appeared to be getting underway. 

In response, the affected indigenous communities and larger indigenous organizations rose up in a march of protest against the project and the government’s treatment of the indigenous populations.  Starting in August, hundreds of protesters set off to march 500 km to La Paz to demand both a halt to the construction and to be adequately consulted before any similar project is undertaken.  The numbers swelled as the march progressed, growing to thousands.  The marchers endured high altitudes and cold weather, and overcame police blockades and violently repressive police tactics in order to reach the capital.

Over two months had passed by the time the marchers finally reached the capital.  During that time, television footage of the peaceful march and police violence caused a national outcry, and led to the resignation of two high ranking government officials—one who was implicated in the violent repression of the demonstrators, and another in solidarity with the protest—and President Morales’s decision to suspend construction of the highway until there would be a “consultation.”  But, not content with this promise, the marchers persisted in their demand for a strict prohibition on any highway construction in TIPNIS.

So far, cases brought under the Alien Tort Statute (ATS) in U.S. courts have had little success in demonstrating that environmental harms violate international law, but that could soon change.

This week, plaintiffs in Arias v. Dyncorp, supported by a group of international environmental law scholars, filed a brief in which they made a powerful case for allowing ATS claims for cross-border environmental harms.  While courts have rejected ATS claims for environmental harms within a country's borders, this is the first case to squarely address the issue of transboundary environmental harms—harms to the people and environment of one country resulting from activities occurring within a neighboring country.

The Dyncorp case deals with the cross-border human and environmental effects of herbicidal aerial spray operations conducted as part of Plan Colombia, a joint operation between the U.S. and Colombian governments to eradicate coca plantations within Colombia, including in areas near the Colombia-Ecuador border. The plaintiffs have submitted evidence that Dyncorp, a private company hired by the United States to conduct the spraying, failed to prevent the toxic chemicals it was spraying from reaching people’s communities and properties in Ecuador. The plaintiffs argue that Dyncorp’s actions have caused significant damage to the health, property, environment and livelihoods of thousands of Ecuadorians, and that this amounts to a violation of the international law requirement not to cause environmental harm in another country.

An ATS case requires a violation of a clear, universal and obligatory norm of customary international law – a rule that the international community generally agrees is a part of binding international law. TheDyncorp plaintiffs argue that international law requires states to exercise due diligence to prevent significant cross-border harms. This should be a pretty uncontroversial point; it is supported by multilateral treaties and UN declarations, decisions of the International Court of Justice and international arbitration tribunals, and many commentaries by legal scholars.