Date of publication: July 13, 2007
Source: New York Times
By Kyle Whitmire
BIRMINGHAM, Ala., July 12 — Six years ago, three union leaders were kidnapped and slain in northern Colombia. Now, 2,000 miles away, a federal jury here is being asked to decide whether an Alabama-based coal company, Drummond Ltd., aided in the killings and took sides in Colombia’s decades-old civil war.
The civil case promises to test a new use of a 218-year-old law and to open a window into corporate endeavors in a developing country where factional violence has often supplanted the rule of law.
“It’s only right that a company, just like an individual, should be held accountable for their choices and decisions,” Herman N. Johnson, a lawyer for the plaintiffs, told the jury during opening arguments this week.
Lawyers from the United Steelworkers Union and the International Labor Rights Fund are suing Drummond on behalf of the families of three Colombian union leaders — Valmore Locarno, Victor Orcasita and Gustavo Soler — who were killed by a right-wing paramilitary group in 2001. The plaintiffs have accused Drummond of taking sides in the Colombian civil war and abetting the murders.
The lawsuit was brought under the Alien Tort Statute. Passed in 1789, the law was created to give legal rights to diplomats in the United States and to prevent the country from becoming a haven for sea pirates. However, more than two centuries later plaintiffs in the United States and abroad are using it to sue multinational corporations suspected of human rights abuses in developing countries. While this is the first such case to make it to trial, similar suits are pending against several corporations, including Exxon Mobil, Occidental Petroleum and Chiquita Brands International.
If successful, the lawsuit against Drummond could lend legitimacy to the new use of the Alien Tort Statute, in spite of many of the logistical obstacles such cases entail, said Beth Stephens, a law professor at Rutgers University-Camden.
“It would be a momentum builder for many of these plaintiffs if it can actually be proven in court,” Ms. Stephens said. “The legal theory will be worked out largely on the appellate level.”
If Drummond loses the case, it will almost certainly appeal to a higher court, where it would then tackle the larger unanswered questions about the application of the law, said Peter J. Spiro, a law professor at Temple University.
According to Mr. Spiro, human rights organizations are seeking these kinds of cases and bringing them against American corporations with more frequency, and if Drummond prevails, it could stanch the legal attacks.
“If the plaintiffs lose this case, it might embolden other corporations to fight these claims more vigorously,” Mr. Spiro said. “And it wouldn’t end with a verdict for the plaintiffs, either.”
In their opening arguments, defense lawyers acknowledged the chaotic conditions of the Colombian outlands but insisted that Drummond never assisted outlaw paramilitary groups or was complicit with their activities.
“Nobody at Drummond Ltd. believes that the rules don’t apply to them just because they are doing business in Colombia,” said William H. Jeffress, a lawyer for the company. “Nobody at Drummond Ltd. believes that it is O.K. to assist in the murders of anybody.”
Mr. Jeffers argued that it would have been against the company’s interests to side with either faction in the civil war.
“Choosing sides in the conflict in Colombia is how you get killed,” he said.
Founded in the small town of Jasper, Ala., in 1935, the privately owned Drummond Company grew through much of the 20th century to become one of the country’s largest coal producers. A subsidiary of the company remains the largest domestic producer of coke, a fuel derived from coal and used to make steel.
By the late 1980s, however, the rising costs of coal mining in the United States led the company to look for cheaper sources overseas. By 1993, Drummond Ltd., a subsidiary of the company, began mining operations near La Loma, Columbia, where it operates the world’s largest open-pit coal mine, extracting about 25 million tons of coal each year.
From the start of its operations in Colombia, the company was on guard against the decades long civil strife in the country between left-wing guerrilla and right-wing paramilitary groups, witnesses have testified. That conflict reached a climax in the years 1999 to 2001, when several employees were kidnapped and held for ransom and as many as 30 guerrilla attacks on rail lines threatened to cripple the company’s business there, according to testimony and depositions from company officials filed with the court.
Beginning in 1993, the company solicited security from Colombia’s military, donating land at its mine and port for bases and lending vehicles, fuel, food and other supplies. However, the plaintiffs argue that the company crossed the line when, they contend, Drummond Ltd. began giving material assistance and cash payments to the paramilitaries in exchange for protection.
Plaintiffs’ witnesses are expected to testify that the paramilitary groups perceived an overlap between the left-wing guerrillas and the labor unions in Colombia. According to a State Department report introduced during the trial, from 1991 to 2000 more than 1,500 union leaders were murdered in Colombia by members of the paramilitary groups.
On March 12, 2001, two union leaders from the Drummond mine, Mr. Locarno and Mr. Orcasita, were leaving for home on a company bus when a truck full of paramilitary troops stopped the bus and ordered them off by name. The gunmen shot and killed Mr. Locarno on the roadside in front of the other passengers, according to court documents, and Mr. Orcasita was found later, shot dead with signs of torture.
Another union member, Gustavo Soler, succeeded Mr. Locarno as the organization’s president, but seven months later he too was dragged from a bus by gunmen. His body was found later with two bullet wounds to the head, according to court documents.
In the weeks before the murders, the victims wrote letters and sent faxes to executives in Colombia and Alabama asking for protection, but instead of giving that help, the plaintiffs said, the executives returned with veiled threats against the union leaders.
“The fish dies from opening his mouth,” Augusto Jiménez , the chief executive of Drummond Ltd., told the victims and other union leaders, according to the plaintiffs’ lawsuit and testimony at trial.
About a year after the murders, the unions sued Drummond and several of its executives. In recent months, last-minute witnesses have come forward to testify, including a former member of the Colombian intelligence service, Rafael García. However, Judge Karon O. Bowdre of Federal District Court dismissed all but one of the complaints against the company and has barred Mr. García from testifying.
To prove the remaining accusation, of war crimes, the plaintiffs must show that Drummond knowingly assisted in war hostilities in Colombia.
Mr. García, who is serving time in prison for erasing Colombian government data on drug dealers, has said in an affidavit that he saw Mr. Jiménez give a suitcase full of cash to a representative of the AUC, a paramilitary group listed by the State Department as a terrorist organization.
The plaintiffs have argued that Mr. García’s testimony is crucial to their case, but this month, Judge Bowdre refused to extend a deadline for new witnesses in the trial.
Drummond is suing Mr. García, accusing him of slander.