Date of publication: June 29, 2005
Source: American Bar Association Journal
Alberto Galvis Claims That Occidental Petroleum Corp., Is Liable for a Raid That Killed His Family in Colombia. A Revived Alien Tort Laws May Get Him His Day in U.S.Court
BY JOHN GIBEAUT
Alberto Galvis blames Occidental Petroleum Corp. for killing his mother, his sister, a cousin and 14 other people in a December 1998 bombing raid on their town in northeastern Colombia.
“I saw seven bodies, most of them burned and mutilated,” Galvis recalls. “My mother was among them. She was inside the store, by the refrigerator.”
Tereza Mujica Hernandez, 45, had fallen in the combination bar and grocery the family ran in Santo Domingo, a tiny community nestled against Colombia’s border with Venezuela. Most of her skull had been blown away.
Nearby, her husband fell wounded. Blinded years before by glaucoma, Mario Galvis, 50, was struck by shrapnel that tore through his chest and broke both collarbones. He still suffers chronic pain. Also killed were sister Edilma Leal Pacheco, 20, and cousin Johanny Hernandez Becerra, 14.
Now, thousands of miles from home, Galvis, his father and a brother seek compensation in a federal court in California. In a civil action, they want a chance to prove their accusation that Los Angeles-based Oxy helped plan and finance the attack.
The survivors claim Occidental was trying to protect from left-wing insurgents a pipeline the company uses to ship oil from the region to the Caribbean Sea and eventually to the United States. They say a Colombian air force helicopter used in the operation instead dropped a cluster bomb on unarmed civilians in Santo Domingo, situated in Arauca state, 20 miles from an Occidental oil field.
“It’s the richest state in Colombia because we have Occidental,” says Alberto Galvis, 32, now a criminal justice major at La Roche College, a small liberal arts school in suburban Pittsburgh. “But we don’t get the money. The only thing we get from Occidental is military occupation.”
Occidental denies plotting or paying for the attack. In court documents, Oxy repeatedly insists that if Galvis has any gripe at all, it lies with the Colombian government.
Nevertheless, Occidental finds itself a little too close for comfort to the cutting edge of a growing list of lawsuits in U.S. federal courts that accuse multinational corporations of tolerating exploitation of local populations in their overseas operations through torture, murder, rape, slavery, and other abusive human rights and labor practices. Occidental could move to the top of the list as observers on both sides of the litigation expect the U.S. Supreme Court to determine sooner rather than later the extent—if any—of corporate liability under a 1789 law the plaintiffs have used to sue the companies here.
LIMITS OF ALIEN TORT STATUTE
Plaintiffs began using the obscure law—known as the Alien Tort Claims Act or the Alien Tort Statute—about 25 years ago to sue various generals, dictators and other individuals for human rights abuses committed in their home nations in violation of recognized international law. Because the early cases essentially involved efforts to win symbolic justice from destitute defendants, few outside the parties and the human rights organizations that filed the cases paid much attention. The tort claims act had come in for such sporadic use that the Supreme Court didn’t decide its first case under the law until 2004. Sosa v. Alvarez-Machain, 124 S. Ct. 2739.
In deciding Sosa, a case against an individual defendant, all nine justices viewed the tort claims act largely as a jurisdictional grant—and nothing more—over the handful of substantive causes of action that international law recognized at the time Congress passed it. A separate majority of six justices, however, permitted trial courts to expand the act to other substantive areas to account for changes in recognized international law since 1789.
Now plaintiffs have raised the stakes by turning from individuals to corporations that might have to pay real money, not to mention suffer public relations calamities, in trials where the evidence likely would include parades of horrors recounted by unsophisticated yet highly sympathetic witnesses from the far corners of the developing world. Though companies insist that the act is little more than a relic intended to combat pirates and other 18th century scourges, the defendants also worry that courts could aim for the stars in setting limits on their liability in modern human rights cases.
Both sides had been eyeing for Supreme Court consideration a case accusing Unocal Corp. of responsibility for forced labor, rapes and murders by soldiers along a natural gas pipeline route in Myanmar. The case settled for an undisclosed sum in March as the San Francisco-based 9th U.S. Circuit Court of Appeals prepared for an en banc review of summary judgment awarded to the company.
Business keeps fighting back, aided in no small part by President Bush’s administration, which opposes the corporate litigation as disruptive to U.S. foreign policy toward host nations. To that end, defendant companies have successfully persuaded trial judges to seek letters from the State Department outlining the foreign policy consequences of allowing such cases. The administration maintains that allowing courts here to immerse themselves in foreign matters would hinder the United States’ ability to fight terrorists and drug dealers. While condemning human rights abuses, the letters also stress the role private U.S. investment plays in bringing stability to volatile regions. Not surprisingly, the letter written in the Occidental case also heavily underscores the importance of Colombian oil to the folks back home.
Not pleased are members of the small but vocal community of lawyers working for plaintiffs in the various cases. They say the administration is trying to exercise a sort of veto power over the suits, and that the life or death of a claim could hinge on a two-page, single-spaced letter.
“I just find it very dangerous,” says Daniel M. Kovalik, a United Steelworkers of America lawyer working on Galvis’ and other human rights cases from Colombia. In all, roughly a dozen corporate cases under the Alien Tort Statute are winding their way through the justice system.
Perhaps most infuriating, plaintiffs realize they can’t do anything about the letters. They’re perfectly legal and proper—and endorsed in corporate cases by a footnote in Sosa outlining possible steps trial courts can take to limit the cases. Defendants say the alien tort suits boil down to lame attempts by plaintiffs to squeeze dollars out of companies as surrogates for abusive governments that can’t be sued because of sovereign immunity. Though no one pays much mind when a penniless former despot is at the defense table, ears stand up when a corporation finds itself facing the same types of accusations.
“It’s taken a different turn,” lead Oxy defense lawyer Kristin Linsley Myles of San Francisco says of the plaintiffs’ focus on corporate defendants. A veteran of other high-profile alien tort actions, including the Unocal case, Myles also co-chairs a working group on the statute for the ABA International Law and Practice Section.
“Now they’re going after defendants who haven’t done anything but be there,” Myles says. “Now they’re going after U.S. companies legitimately doing business overseas. That’s where you start getting people’s attention.”
Although it’s the second-oldest democracy in the Americas, Colombia 25 years ago was largely known for its two main exports: coffee and cocaine.
That changed in 1983, when Occidental discovered the billion-barrel Cano Limon oil field in Arauca. The find transformed Colombia overnight from a net importer to a major crude oil exporter.
Despite newfound prosperity, Arauca, already thick with Marxist rebels, became an even more dangerous place to live and work. Still more rebels descended on the region and began attacking Occidental’s facilities. Some had been fighting as guerrillas against the government for as long as 20 years in Colombia’s still-running civil war. U.S. policy regards the fighters as terrorists and drug dealers.
Not far behind the leftist rebels came a corresponding increase in membership of opposing, illegal right-wing paramilitary organizations. The violence kicked up another notch with an expanded presence of regular Colombian army and police units assigned to protect Oxy’s and Colombia’s investments in the Cano Limon field and the 500-mile pipeline that carries the oil to the Caribbean port of Covenas. Human rights activists attribute most of the abuses to the paramilitaries and the army.
Occidental blames the leftists for nearly 1,000 attacks on the pipeline since 1986. The assaults have spilled an estimated 11 million barrels of oil and cost about $2 billion in lost revenue. With oil money from all sources accounting for about 30 percent of the Colombian government’s income, any prolonged interruption of the flow through the Cano Limon pipeline can threaten financial disaster. A sixth-month 2001 shutdown blamed on terrorists cost the Colombian government $580 million, says Occidental spokesman Lawrence P. Meriage.
“They have a huge interest,” Meriage says. “For them, the pipeline is an important piece of infrastructure. It is one of their major sources of revenue. It’s an important part of their budget.”
In 1999, Occidental representatives also began to report plantings of bumper crops of coca and opium poppies in Arauca and neighboring states, including a 300 percent increase from the previous year in one state alone.
Before the oil came, the region hadn’t been regarded as an especially significant source of illegal drugs. Both the leftists and the paramilitaries partially support their operations through extraction of “taxes” on drug profits and through exchanges of drugs for weapons. Payments from legitimate businesses for “protection” against armed attacks by rival groups also figure prominently in the outlaws’ income stream.
THE RAID
About the same time occidental was settling into Arauca, Alberto Galvis and his family moved to Santo Domingo, where a few dozen souls reside in the shadow of Oxy’s venture.
“Before, we were a really poor [area],” Galvis says. “The government didn’t pay any attention to us. When Occidental came, the government started to pay attention, not to the people, but to the oil, so they could take the resources out of the [region]. Here was a way to make money. What people call progress came to town. And the guerrillas came, too.”
For the right to work the Cano Limon field, Occidental pays the national, regional and local governments 85 percent of its revenues in the form of royalties, taxes and other charges. The company says some of the money has gone into public works projects, including schools and hospitals. Occidental also says it built the first road to link Arauca with the rest of Colombia and connected the area to the country’s electric power grid.
But if Occidental spent anything in Santo Domingo, Galvis says, the town never saw a dime. Indeed, residents had planned a bazaar less than two weeks before Christmas 1998 to raise money to add a room to the local elementary school. In an interview and court documents, Galvis recalls the Dec. 13 raid and its aftermath.
The preceding day, he watched and listened from his family’s farm outside Santo Domingo as fighting broke out in the area. He assumed the usual suspects were going at it: government forces and members of the leftist Revolutionary Armed Forces of Colombia, known by the Spanish acronym FARC.
“There were planes all over the place, shooting all over the mountains and around town.” After a sleepless night, Galvis headed back to town early on the morning of Dec. 13. “When I came into town, the helicopters started to come, and the fighting started again around 7 or 7:30.”
From a half-mile or so away, he noticed a helicopter over the town. Next he heard an explosion and saw smoke rising. “I knew what had happened. The town got bombed. But I didn’t know what happened to my family.”
The fighting at first turned Galvis back as he tried to make his way into Santo Domingo. He remembers dodging aerial machine gun fire as he tried a different route, dressed in white to signify that he was a civilian and unarmed. “They shot at us even though we were wearing white clothes.”
When he reached the scene the next day, Galvis learned the attack had killed 17 and wounded 25 others, including his family members. Despite killing and injuring people, the bombs did little property damage and left a crater no more than a couple of feet across, Galvis says. That’s why he didn’t buy initial official explanations.
“The government and Occidental said it was a car bomb set off by the guerrillas. That didn’t make sense to me. A car bomb would have killed everybody. A car bomb would blow up everything.”
An FBI examination identified metal fragments recovered from the scene as parts of a 20-pound U.S.-made cluster bomb. Cluster bombs are anti-personnel weapons that kill by exploding into shrapnel on impact.
Afterward, Galvis began publicly to question the government’s role. He says he received threats from both the army and paramilitaries. He also says a friend was shot upon his return to Colombia after both had participated in a mock trial over responsibility for the incident conducted in 2000 at the Center for International Human Rights at Northwestern University Law School.
Nevertheless, Galvis and other bombing survivors won a $700,000 judgment against the government in a Colombian civil proceeding. They did not sue Occidental in Colombia.
In September 2002, Galvis came to the United States on a student visa and enrolled at La Roche. The rest of his family—including his wife, two children, father and five surviving siblings—have since settled in Canada, where Galvis also likely will land after his U.S. visa expires at graduation.
Galvis sued Occidental in April 2003 in federal district court in Los Angeles. Among his charges, Galvis says Americans in a plane owned by an Oxy subcontractor supplied coordinates for the bombing.
U.S. District Judge William J. Rea has been considering Occidental’s motion to dismiss the complaint since the fall of 2003. On Jan. 10, however, Rea issued a tentative ruling in which he said he was inclined to toss it partly because of objections by the U.S. and Colombian governments. But a dismissal in the trial court wouldn’t immediately kill the case. If the judge dismisses, Galvis’ lawyers say they will appeal. If Rea lets the complaint stand, Occidental, which can’t file an interlocutory appeal, faces the choice of settling or at least taking it as far as summary judgment, if not all the way to trial.
AIDING AND ABETTING
Prospects of finding companies directly liable for human rights abuses are, of course, remote. Face it, a CEO just isn’t going to whip out a handgun and blow away some innocent bystander half a world away. Instead, plaintiffs hope to nail the companies for aiding and abetting.
Though appeals courts have permitted aiding-and-abetting cases against individuals, corporations say that under the same theory they could wind up responsible for abuses simply by doing business in countries where governments sport lamentable human rights records. The argument played a major role in the dismissal last fall of a case against companies that operated in South Africa during apartheid. In re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y.).
Plaintiffs say merely doing business and nothing more in an area won’t trigger aiding-and-abetting liability. They say a defendant must knowingly contribute to a crime with money or other substantial assistance.
“There is no question that there is aiding-and-abetting liability,” says lead Galvis lawyer Paul L. Hoffman of Venice, Calif., who also represented the plaintiffs in the Unocal case and argued Sosa before the Supreme Court. “The question appears to be where you draw the line.”
In addition to its legal arguments, Occidental disputes Galvis’ factual allegations nearly every step of the way. In its pleadings, the company suggests the Colombians were attempting to break up a drugs-for-arms deal in reaction to a tip from U.S. Customs. Moreover, Oxy spokesman Meriage says, the incident occurred far from the pipeline and had nothing to do with company security. Connecting Oxy to the money that paid for the raid also could prove a circuitous exercise.
“Occidental does not have and never has had armed security of its own,” Meriage says. “We have always relied on the legitimate authorities.”
He acknowledges, however, that Occidental’s contract with the Colombian national oil company includes an assessment for security. And though Occidental denies supplying Colombian troops with weapons and other means to carry out lethal attacks, it does acknowledge building barracks and upgrading meals and other creature comforts for soldiers stationed in remote Arauca.
Though the U.S. circuit courts have spent 25 years trying to define liability limits under the alien tort act, the lone Supreme Court pronouncement on the subject in Sosa gives neither side much guidance. On one hand, the court’s unanimous view that the act grants federal jurisdiction over international law claims accepted in the 18th century pretty much left plaintiffs stuck with piracy, offenses against ambassadors and violations of safe conduct.
So future argument likely will center on the six-justice holding that would allow federal judges to expand causes of action to cover “a narrow class” of newer offenses. The six also cautioned trial judges to practice “vigilant doorkeeping” in considering new types of claims. Any new causes of action, the six said, require definition “with a specificity comparable to the features of the 18th century” offenses.
Plaintiffs see that specificity in the 1992 Torture Victim Protection Act, where Congress authorized causes of action for torture and extrajudicial killings—slayings committed under color of law but not authorized by a court judgment. Hedging their bets, plaintiffs routinely file their claims with counts that cover both the tort claims and torture protection acts.
Interest had arisen within the ABA alien tort working group and elsewhere in asking Congress to settle the main question and legislate specific causes of action once and for all. It dwindled after the Supreme Court spoke.
“The wind came out of the sails somewhat after Sosa,” says George Washington University law professor Ralph G. Steinhardt, the other ABA working group co-chair. “Everybody thinks they won.”
Plaintiffs say they don’t expect courts to add any more new causes of action.
“We’re not going to get any new torts anytime soon, and we expect the [Supreme] Court to be conservative,” says Galvis lawyer Terry Collingsworth, executive director of the Washington D.C.-based International Labor Rights Fund, a leading plaintiffs human rights advocacy group. “But we still have plenty to work with.”
THE STATE DEPARTMENT FACTOR
Long before they get their shots at juries, Galvis and other plaintiffs also must satisfy the courts that adjudicating their case in the United States won’t interfere with foreign sovereign immunity or with U.S. policy. That’s where corporate defendants’ greatest strength may lie.
That requirement allows defendants to use the long-recognized act of state doctrine as well as the political question doctrine, both of which enable courts to extricate themselves from cases that may force them to second-guess actions of foreign legal systems or violate the U.S. Constitution’s separation of powers by meddling in executive or legislative business. Oxy and other defendants arguing the doctrines in dismissal motions regularly ask trial judges to seek the State Department’s views in letters called statements of interest. Plaintiffs say that the nonbinding letters tilt the separation of powers too far the other way.
“It’s not improper to ask, but I think it would be improper, if not wrong, to let the executive branch dictate which cases the courts will hear,” Hoffman says. The problem is that it’s often difficult to untangle U.S. policy from a defendant’s interests.
Since 2000, the United States has spent nearly $3 billion to wipe out narcotics in an initiative called Plan Colombia. President Bush is asking for another $734 million next year.
Plan Colombia, however, is more than just a war on drugs. It also aims to shore up other Colombian institutions, including a legal system perhaps best known for assassinations of judges.
So Galvis doesn’t just have to fend off the State Department’s contention that allowing his case to continue in California somehow will reduce foreign investment in Colombia and consequently damage U.S. efforts against terrorists and drug traffickers—or in finding new sources of oil. He also has to explain why he sued his own government, but not Occidental, in Colombian courts, even though they’re regarded as some of the world’s most corrupt. The answer is simple for Galvis.
“There is no way to do it in Colombia,” he says. “Occidental gives a huge amount of money to the Colombian government. There’s no way you can sue a multinational corporation in my country. I would easily get killed.”
The State Department in its 2004 report on Colombia’s human rights practices still notes serious problems with violence, threats and intimidation of judges, prosecutors and witnesses. But its letter to Judge Rea in the Galvis case offers a more upbeat assessment.
“Duplicative proceedings in U.S. courts second-guessing the actions of the Colombian government and its military officials and the findings of Colombian courts, and which have at least the potential of reaching disparate conclusions, may seem unwarranted and intrusive to the Colombian government,” then-department legal adviser William H. Taft IV wrote in the Dec. 23 letter. “Moreover, it also may be perceived that the U.S. government does not recognize the legitimacy of Colombian judicial institutions. These perceptions could potentially have negative consequences for our bilateral relationship with the Colombian government.”
Department lawyers say the letters speak for themselves and attribute corporate interest in obtaining them to the search for defenses in increasing international litigation rather than any U.S. policy shift. One of Galvis’ lawyers objects to the generic tone they all carry, regardless of where the cases arise.
“They’re not case-specific,” says Bridget Arimond, assistant director of the human rights center at Northwestern Law School. “That’s an argument that anyone would make against any suit against any corporation.”
For his part, Galvis is perplexed. “Here’s what I don’t understand: The State Department is the face of the United States, and the United States stands for justice. I don’t understand how they can have two faces.”
Plan Colombia is in the midst of recasting the nation’s courts in the U.S. image by replacing an inquisition-like criminal justice system controlled by powerful fact-finding judges. In its place will stand an adversarial system, said to be more balanced, open and efficient. On the civil side, Plan Colombia has gone American by establishing alternative dispute resolution programs.
Finally, growing impatient with the Colombians’ investigations of the Santo Domingo bombing and other human rights complaints, the United States in early 2003 cut off aid to the air force unit involved. Afterward, Colombian military authorities eventually turned three helicopter crew members over to civilian prosecutors to face involuntary manslaughter charges.
Those and other signs of progress in human rights were enough for the State Department last fall to certify Colombia as eligible for continued U.S. military aid. Occidental also says the State Department’s view should be enough to keep the company out of a U.S. federal court in its own back yard.
“The incident occurred in Colombia,” says Occidental spokesman Mer iage. “You do have a democratically elected government in Colombia. It’s one of the oldest democracies in the Western Hemisphere. It has a functioning system. To suggest otherwise flies in the face of reality. Colombia is not a banana republic.”
COLOMBIA’S JUSTICE SYSTEM
Luz E. Nagle isn’t so certain. As a judge in Medellin, Colombia’s notorious coca growing region, Nagle survived three assassination attempts. The last one in 1985 was enough to make her pack her bags and flee to the United States with her American husband. Now a naturalized citizen, Nagle teaches law at Stetson University in St. Petersburg, Fla.
In a court declaration supporting Galvis, Nagle said the Colombian procedure that yielded the $700,000 judgment is designed only to compensate people for government actions and doesn’t allow resolution of disputes between private parties. A separate Colombian civil action against Oxy likely would fall victim to corruption and the system’s inability to produce reliable, consistent and timely results, she predicted.
Nagle regularly returns to Colombia. Though U.S. courts can’t pass judgment on the wisdom of particular policy decisions when deciding whether to allow alien tort cases to proceed, Nagle isn’t similarly restrained. She reports that Colombian justice hasn’t changed all that much since she left.
“I lived through the system,” Nagle says, pausing. “Let’s put it this way: I lived. They don’t prepare you in law school for the psychological and moral battles you have to fight.”
Nagle says public mistrust and fear count among the deepest problems in the Colombian justice system. She suggests the system should engage in a little PR as a way to regain public faith and persuade plaintiffs like Galvis to use Colombian courts. “The people of Colombia stay away because they don’t trust the system,” Nagle says. “If someone is corrupt, bring that person to justice. Put that person in jail. Then publicize it.”
Otherwise, Nagle sees a system that just can’t repair itself quickly enough to render meaningful justice for Galvis.
As the clock ticks on his case, Galvis awaits the resumption of fall classes. He constantly thinks of his family members in Canada. With his mother gone, he says, they have begun to drift apart in their new home.
“She was the core of my life,” Galvis says. “The only person who could keep us together was my mother. She was the queen of the castle. The only thing I want to do right now is finish my major and go to Canada.”
Still, when Galvis sued Occidental, he ignored an old piece of standing advice his mother long ago had imparted to him. “My mother told me once that the cemetery is full of heroes.”
John Gibeaut is a senior writer for the ABA Journal. His e-mail address is gibeautj@staff.abanet.org [1].