Date of publication: August 1, 2007
Source: Time Magazine
By Ken Stier
Organized labor often complains of its treatment at the hands of corporate America, but its accusations pale in comparison to those made recently by the widows of Colombian mine workers in an Alabama courtroom. During a two-week trial, a Birmingham jury weighed charges that the local Drummond Coal Company bore responsibility for the murders of three union leaders who represented workers at its Colombian mine — the world's largest open pit mine. The widows lost their suit last week. But the case, and issues at the heart of it, are far from resolved: an appeal is all but certain, and the courts will surely hear more lawsuits trying to use a once obscure, colonial-era law to hold U.S. companies liable for human rights abuses committed abroad.
The known facts of the Drummond case as outlined in the complaint are disturbing enough. For months union leaders pleaded with company executives for more security against lawless right-wing paramilitaries operating in the northern Cesar province, where the 25,000-acre mine — from which Drummond exports 25 million tons of coal a year, with an estimated value of $700 million — is located. One key request that was refused was to allow workers to sleep on the premises. Once outside company property, miners were vulnerable to the paramilitaries, who are believed responsible for most of the 900 extra-judicial killings taking place every year in the country's continuing, decades-long civil war. And just as Drummond's local union chapter was involved in heated negotiations over wages and and compensation for workers killed in a mining accident, pamphlets appeared on Drummond property denouncing the union as a "guerrilla union" — regarded by the workers as a virtual death sentence to its leaders.
On March 12, 2001, as company buses ferried miners to the nearby village where they were staying, waiting paramilitaries stopped the bus carrying union president Valmore Lacarno and vice president Victor Orcasita. They boarded the bus, Lacarno was taken off and promptly shot in the head in full view of fellow miners. Orcasita was bundled off, reappearing hours later with a lacerated chest, smashed teeth and a bullet in his brain. The next miner to step forward as leader, Gustavo Soler, met a similar fate several months later.
It was a harrowing tale, but the jury did not think there was sufficient evidence linking Drummond with the murders. The plaintiffs concede this was "understandable" but only because the jury was not able to hear the testimony of four key witnesses. Two of them, Rafael Garcia and Alberto Visbal, a former paramilitary himself, claim to have attended a meeting at which they saw money passed from the president of Drummond's local subsidiary to a representative of paramilitary commanders for monthly "taxes," or to pay for the assassinations, a charge that Drummond has vehemently denied. Of course, nothing is that simple in Colombia; one of the witnesses, Garcia, a former IT director in Colombia's version of the FBI, currently is serving a 24-year prison term for erasing data on drug traffickers.
Still, "if any of the four witnesses Judge Karon Bowdre excluded would have been allowed to testify, the jury would have had the missing link," insists Terry Collingsworth, of the D.C-based International Labor Rights Fund, which helped bring the case and several other similar cases against other major companies.
Those other cases, like the one against Drummond, rely on a law that dates back to 1789 known as the Alien Tort Claims Act (ATC). The law was originally intended to deal with piracy, as well as to provide a way for foreigners, such as an ambassador posted in Washington, to seek legal redress for injury in the U.S. before it triggered an international incident. The statute lay virtually dormant for generations until Paraguayan Dolly Filartiga, whose 17-year-old brother Joelito was tortured to death by local policemen, found out that the police chief at the time, Américo Norberto Peña Irala, was living in the U.S. two years later. She and her father sued, and in 1980 a federal court in New York awarded her $10.4 million. Pena Irala, for his part, was subsequently deported.
More recently, the law has been deployed by labor groups and NGOs trying to punish and modify the behavior of U.S. companies abroad. More than three dozen cases targeting companies have followed the first case, filed in 1993, against Texaco (now Chevron). That class-action suit, which alleged that a subsidiary of Texaco had improperly disposed of waste while extracting oil from the Ecuadorian Amazon, was eventually referred to Ecuadorian courts.
The majority of other suits have been dismissed on jurisdictional grounds or are still pending, though at least one has been settled out of court.
Drummond, however, was the first such case to go to trial. "Getting this case to trial was a great accomplishment; it is really a wake-up call for all U.S. companies that their behavior overseas will see the light of day — perhaps even in U.S. federal courts," says Walter Tache, a Miami lawyer with the firm of Zuckerman Spaeder, who has consulted with both sides of such claims. "Once there is a successful case, the floodgates from the plaintiff's bar will open for many more."
Robert A. Mittelstaedt, an attorney with Jones Day in San Francisco who has Chevron as a client, thinks that's a terrible thing. He says the current use of the ATC has "twisted" the original intent because it could very likely precipitate, rather than prevent, international incidents. That's in line with the view of the State Department, which has complained that such lawsuits threaten U.S. foreign policy interests by deterring present and future investments.
One key objection to alien tort claims is that they run counter to the traditional deference paid to local courts. But this presumes a reasonably functioning local judiciary, and there is scant evidence of that in Colombia. Since 1986 2,515 trade unionists have been murdered there — about 120 a year, making it the world's most lethal country for labor — but there have been only 37 successful prosecutions, leaving a staggering "impunity rate" of 98%, according to Maria McFarland, Human Rights Watch's Colombia expert. This past March, Chiquita Brands International, Inc., pled guilty to one count of "engaging in transactions" with a terrorist organization for paying $1.7 million to a right-wing paramilitary organization seeking to wrest control of the Uraba banana-growing area from leftist guerrillas. Was it simply protection money or taking sides and in effect fueling the civil war a time when more than 4,000 Colombians, mostly civilians, were murdered by the paramilitaries? The U.S. Justice Department seems satisfied with the $25 million fine Chiquita must pay, and Chiquita denies it did anything more than make payments. But family members of some of those killed in the region have filed their own suit against Chiquita using the Alien Torts Claim Act.
And Colombian officials, who have called it "blood money," are vowing to extradite company executives who knew of the payoffs.