A company can be sued for aiding and collaborating with Colombian paramilitaries to kill civilians during the Colombian civil war, according to an Alabama district court’s recent decision. On Friday, Judge R. David Proctor of the U.S. District Court for the Northern District of Alabama issued an opinion in Jane Doe v. Drummond Corp., No. 09-CV-01041-RDP (N.D. Ala. Apr. 30, 2010) [pdf], allowing lawsuits to proceed alleging that the Drummond Corporation is responsible for the murder of Colombians by the AUC – a prominent paramilitary group – whom they hired to act as security and to pacify the area around Drummond’s mine and rail lines. Although this is not an ERI case, the decision could have important ramifications for ERI’s case against Chiquita.
The opinion is significant because it is the first to interpret some important details of two recent appellate court decisions involving the Alien Tort Statute: Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) [pdf] and Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. Fla. 2009) [pdf]. Corporate defendants have argued that these cases raise the bar for law suits against them for aiding and abetting human rights abuses, asserting that a) Talisman requires a showing that the defendants assisted the perpetrators of the abuse with the intention that the assistance be used to commit specific violations of international law, and b) Sinaltrainal requires that, in most cases, the individual, specific abuses were committed with the knowledge and involvement of the government. (ERI filed amicus briefs in both cases.)
Corporate defendants want these assertions to be recognized as law by the courts because they believe it’s almost impossible for plaintiffs to find evidence that a company actually intended for specific instances of torture, extrajudicial killings, and war crimes to take place. (It would be much easier, for example, to show that the company had knowledge that its assistance would be used to carry out atrocities of the type that comprise plaintiffs’ claims.) The same goes for evidence that state agents were involved in the perpetration of specific abuses by non-state actors. (It would be easier to show, for example, that the government supported the strategies and aims of paramilitary groups, which may have carried out specific abuses according to the strategy but without the direct involvement of the State each time.) However, to recognize such rules would produce absurd results – essentially, it would immunize corporate defendants who avail themselves of the services of brutal, government-allied groups with the intention that they commit atrocities, as long as neither the defendants nor the government specifically selects the groups’ targets or methods.
Fortunately, Judge Proctor’s decision decisively rejects these extreme interpretations of Talisman and Sinaltrainal. In finding that the Colombian government had sufficient connection to the AUC paramilitaries’ killings of civilians along Drummond’s rail lines, the court does not require evidence that the government had been involved in the targeting of specific plaintiffs; rather, it is enough that the Colombian military encouraged the company to support the paramilitaries and funneled payments to the paramilitaries to kill suspected guerilla sympathizers. And in finding that plaintiffs’ claims for aiding and abetting extrajudicial killings and war crimes to go forward, the court accepts that the company urged the AUC to attack and pacify civilian areas, without requiring evidence that Drummond wanted specific plaintiffs killed, and regardless of whether they specifically intended the actions to be war crimes. As the court notes, "lack of [military] motive does not negate intent to assist the underlying acts that may be war crimes," Drummond at 25 – in other words, if you intend to assist acts that turn out to be war crimes, you’re liable for aiding and abetting war crimes regardless of what your motives were.
These interpretations of the law bode well for ERI’s case against Chiquita Brands International, which also involves claims for aiding and abetting paramilitary atrocities in Colombia. Perhaps most importantly, however, the decision makes clear that the backdrop of civil war does not allow companies to act with impunity. Chiquita has consistently tried to scare the court out of adjudicating the company’s complicity in atrocities arising out of the Colombian civil war, arguing that this would open the door to claims from any of a hundred thousand victims. Judge Proctor’s opinion punctures that argument and holds the line against those who would argue that individual responsibility disappears in the fog of war.