Tuesday, June 7, 2011

Chiquita Banana Gross Violations of Human Rights Lawsuit in South Florida

In   a 95-page(!) order a federal judge of the Southern District of Florida rejected Chiquita Brands International's motion to dismiss all of the claims of a consolidated group of individual and class action plaintiffs against Chiquita, for Alien Tort Statute violations including torture, extrajudicial killing, war crimes, and crimes against humanity.  The judge also allowed the plaintiffs to proceed with claims of torture and extrajudicial killing which are violations of the Torture Victims Protection Act.

The Plaintiffs are citizens and residents of Colombia who are family members of, trade unionists, banana-plantation workers, political organizers, social activists, and others who were tortured and killed by the Autodefensas Unidas de Colombia (AUC), a paramilitary organization in Colombia.

Plaintiffs claim that Chiquita not only paid the AUC to rape, burn and otherwise torture and kill their family members and other banana workers in Magdalena, to purportedly suppress union activity, provide labor quiescence, and labor unrest or strikes while profits were increased; but further allege, that Chiquita concealed the nature of these payments, as either, "security services" or "income distributions".  Chiquita purportedly paid into certain Banadex executive accounts funds that were then withdrawn as cash, for cash payments to AUC. It also allegedly obtained, stored and then distributed arms and ammunition to AUC.

In 2003, Chiquita's Board of Directors agreed to disclose certain of these payments to the U.S. Department of Justice while continuing to pay the AUC until February 2004.  In a 2007 criminal case, Chiquita pled guilty to one count of providing material support to terrorism for making $1.7 million in payments between 1997 and 2004 to AUC.  This plea agreement allowed the executives and in-house counsel to avoid facing penalties of up to life imprisonment for crimes against humanity. (Crimes against humanity include murder, enslavement, deportation or forcible transfer, torture, rape or other inhumane acts committed as part of a widespread or systematic attack against a civilian population.) 

Chiquita maintains that it too is a victim of violence in Colombia, not a perpetrator.  While the plaintiffs are permitted to move forward on certain of their claims, the larger issue is whether they will be able to meet the threshold of proof that Chiquita paid AUC and others with the  intent to assist in the tortures and killings.  According to the Opinion, plaintiffs must prove that Chiquita intended for the AUC to torture and kill civilians in the banana-growing regions.

The lengthy Opinion also discussed the law specific to the plaintiffs claim for torts committed in violation of the law of the nations pursuant to the Alien Tort Statute.  It is noteworthy that the Opinion concluded, based on precedent, that "there is no universally accepted norm of international law against terrorism or material support thereof".  This was based in part on an analysis of the number of States who have either ratified, reserved or non-consented, to all or part of the Financing Convention. 

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