SCOTUS to Foreign Victims of Corporate Human Rights Abuse: Stay Away

A plantain farmer walks through a banana plantation in Quindió, Colombia.
A plantain farmer walks through a banana plantation in Quindió, Colombia.

Last week, the U.S. Supreme Court declined to hear plaintiffs’ appeal in Cardona v. Chiquita Brands International, a lawsuit brought by victims of terrorism and crimes against humanity in Colombia.  With barely a word, the high court squashed any remaining hopes for justice for the families of the more than 4,000 victims of paramilitary violence during the Colombian civil war.  The Court may also have, once and for all, shut the door to the American courts for individuals harmed by American corporations abroad.

Recap of the Chiquita suit

As I wrote here earlier this year, Chiquita plead guilty in 2007 to funding the Colombian paramilitary — and former terrorist — organization, the Autodefensas Unidas de Colombia (AUC) (United Self-Defense Forces of Colombia), and other guerrilla groups during Colombia’s brutal civil war. Although Chiquita has maintained that the illegal payments to the AUC were extorted, documents obtained in 2013 by George Washington University’s National Security Archive showed that Chiquita had in fact hired the AUC for the explicit purpose of providing security for employees of its Colombian subsidiary.

Following Chiquita’s settlement with the U.S. government, family members of individuals harmed by Colombian paramilitary groups during the civil war used the now-controversial Alien Tort Statute (ATS) to sue Chiquita in U.S. court.  The plaintiffs claimed that Chiquita’s payments to the AUC and other groups contributed to extrajudicial killings, torture, forced disappearances, crimes against humanity and war crimes committed by Colombian paramilitaries.

In 2011, the 11th Circuit Court of Appeals threw the case out, holding that, following the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, the “ATS does not apply extraterritorially” (meaning, more or less, that U.S. courts will not hear cases involving conduct that only occurred abroad).  As I pointed out in my previous coverage of the Chiquita case, the 11th Circuit’s interpretation of the Kiobel decision was extreme and at odds with a recent articulation of the law by the 4th Circuit Court of Appeals in Al Shimari v. CACI.  There, the 4th Circuit held that, where individuals in the U.S. approved conduct that violated international law abroad, victims of that conduct could use the ATS to sue the individuals who approved it (or their employer).  In other words, the precise factual situation presented in Chiquita.

What the Supreme Court’s refusal means

This fundamental disagreement between the 4th and 11th Circuits is an indication of the ambiguity that has surrounded the Supreme Court’s Kiobel decision since it came down in 2013 — an ambiguity which led many legal experts to believe that the Chiquita case was likely to make the Supreme Court’s docket.  Unfortunately, the highest court in the land and the arbiter of these disputes did not agree.

Thus, without the Supreme Court stepping in to clarify, the lower courts are left to simply guess at the Court’s real meaning.  By denying to hear the appeal in Chiquita, the Supreme Court is sending the very dangerous message that the 11th Circuit had it right.

Why it matters

Prior to the Supreme Court’s denial in Chiquita, William Dodge, an international law professor and former adviser to the State Department, told the New Republic, “If there is any corporate case in which the Supreme Court is going to allow suits under the ATS, it’s going to be this one.”

This is precisely why the Supreme Court’s ignoring Chiquita and the underlying disagreement in the circuits is so frightening.  As the New Republic framed it: “Chiquita made what its own legal counsel called a ‘business decision’ to finance horrendous violence.  If the Supreme Court doesn’t set a precedent now, there’s no reason to believe other companies won’t do the same in the future.”

By passing on the Chiquita case, the Supreme Court’s tacit message to U.S. corporations is: So long as all you do is provide the financing for the commission of horrible crimes, you cannot be held accountable in America.  Or, as EarthRights International (ERI), counsel to some of the Colombian plaintiffs in the case, summed it up in a headline: “Supreme Court Allows U.S. Corporation to Finance Terrorism Without Accountability.”

ERI’s press release described the story of “John Doe 9,” the husband of one of the Colombian plaintiffs, who was a labor leader in one of the banana-growing regions.  According to the plaintiffs’ complaint, the AUC — funded in part by Chiquita — “detained, tortured, killed and dismembered John Doe 9 in retaliation for his union activities.”  John Doe 9’s death inured to Chiquita’s benefit by “removing a labor activist who threatened the stability and profitability of Chiquita’s operations.”

Whether Chiquita should be held liable for these and other brutal crimes committed by paramilitary groups in Colombia is not, ultimately, the most pressing question here (though it is one that the Supreme Court implicitly answered in the negative).  The more important question, rather, is: In what forum can foreign victims of corporate human rights violations and their families seek justice?  Here, too, the Supreme Court answered without answering:  not in America, so probably nowhere.

Colombia’s justice system has been called a “multi-headed behemoth in bad need of reform,” where, as in most post-conflict states and those where gross human rights violations are most likely to be committed, the rule of law is weak.  Access to justice for victims of the civil war is virtually nonexistent, despite a 2005 law that contemplated the special prosecution and sentencing of former paramilitary members.  According to the work of the International Center for Transitional Justice, “[b]y June 2013, approximately 2,000 former paramilitaries had passed through the Justice and Peace tribunals, but only 14 had been sentenced.”

In other words, impunity prevails.  This, despite the fact that, from time to time, U.S. corporations are complicit in the commission of human rights violations around the world (as is most certainly the case with Chiquita in Colombia).  Unfortunately for the victims and their families, the Supreme Court appears to be shutting them out of American courts.  In other words, they’ll have no better luck here than in Colombia.

Image credit: Flickr/CIAT

Michael Kourabas

Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.