Terrorism and material support of terrorism do not constitute Alien Tort Statute claims under the law of nations.

• Author: Keefe, Ryan A.
• Position: TRANSNATIONAL LAW

In re Chiquita Brands Int'l, Inc., 792 F. Supp. 2d 1301 (S.D. Fla. 2011).

Some U.S. corporations support, fund, or even commit acts of terrorism, despite foreseeable outcry and public condemnation. (1) These corporations have harmed both U.S. and foreign citizens, leaving victims to question whether any civil remedies exist to pursue justice and achieve restitution. (2) In In re Chiquita Brands Int'L, lnc., (3) the District Court for the Southern District of Florida explored potential claims available to families whose relatives fell victim to a known Colombian terrorist group working closely with the Chiquita corporation in Uraba, Colombia. (4) The court dismissed the plaintiffs' claims of terrorism and material support of terrorism under the Alien Tort Statute (ATS) but permitted claims of torture, extrajudicial killing, war crimes, and crimes against humanity under the ATS and the Torture Victim Protection Act (TVPA). (5)

Chiquita Brands Int'l., Inc. owned and operated banana plantations in Colombia through its subsidiary C.I. Bananos de Exportacion, S.A. (Banadex). (6) The plantations, located in the Uraba region of Colombia, served as a front for the Autodefensas Unidas de Colombia (AUC), a paramilitary nationalist group responsible for the deaths of numerous civilians and guerilla insurgents from the early 1990's through 2004. (7) Around 1995, Chiquita began paying the AUC to protect its plantations from insurgents and to prevent labor strikes against Chiquita. (8) The AUC received a monthly commission based on the number of banana boxes Chiquita was able to ship. (9)

In April, 2003, senior Chiquita executives notified the United States Department of Justice (DO J) that Chiquita had been making payments to the AUC, a known terrorist organization. (10) Just before Chiquita met with DOJ officials in April, 2003, Chiquita ordered Banadex to continue paying the AUC and the payments continued until February, 2004. (11) Additionally, Chiquita corporate officials met with AUC leaders and facilitated arms shipments for the AUC. (12)

In March, 2007, heirs of the AUC's victims learned of Chiquita's contributions to the AUC after Chiquita pied guilty to violating federal anti-terrorism laws in the United States District Court for the District of Columbia. (13) As a result, in June, 2007, relatives of the victims filed the first of several civil complaints. (14) As other complaints against Chiquita continued to accumulate, the Judicial Panel on Multidistrict Litigation consolidated and transferred all of the civil actions to the District Court for the Southern District of Florida. (15) Chiquita moved to dismiss the complaints by arguing primarily that the plaintiffs failed to state a claim and that the court lacked subject matter jurisdiction. (16) The District Court granted Chiquita's motions to dismiss in part and denied the motions to dismiss in part. (17)

The ATS, enacted by Congress in 1789, provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (18) In 2004, the Supreme Court established a new standard for recognizing causes of action under the ATS by holding that any action proposed for inclusion should violate a well-defined and universally accepted international law norm. (19) The Court specifically articulated that international comity should be of particular concern when foreigners injured outside of the United States seek to establish violations of international norms as new ATS claims. (20) Currently, torture and extrajudicial killing, war crimes, and crimes against humanity are recognized as violations of the law of nations. (21) The Anti-Terrorism Act (ATA) provides for a narrower set of claims for acts of terrorism under which U.S. nationals may recover damages. (22) Additionally, although a defendant may not be directly responsible for the tortious action under the ATS, he may be held liable under theories of secondary liability. (23)

The TVPA establishes a civil cause of action for an individual who suffers torture or extrajudicial killing at the hands of another individual acting "under actual or apparent authority, or color of law of any foreign nation." (24) The Supreme Court recently held that the TVPA's definition of an individual does not include corporations for purposes of tort liability, (25) While the TVPA and the ATS apply to international tort claims, domestic common law claims may exist in a "nation state [which has] jurisdiction to prescribe law with respect to ... conduct outside its territory that has or is intended to have substantial effect within its territory." (26)

In In re Chiquita Brands Int'l., Inc., the court allowed two out of the plaintiffs' seven claims, specifically ATS and TVPA claims for torture, extrajudicial killing, war crimes, and crimes against humanity. (27) These claims were allowed due to Chiquita's actions and its intricate, symbiotic relationship with the local Colombian government. (28) The court also permitted the plaintiffs' theories concerning Chiquita's secondary liability for the AUC's violent acts in light of Chiquita's relationship with the AUC and the government. (29)

The court dismissed the plaintiffs' ATS claims for terrorism and material support of terrorism, noting that neither the plaintiffs' status as non-U.S, nationals nor the differing provisions of the ATS and the ATA precluded the claims at bar. (30) The court did find, however, that because terrorism does not have an internationally agreed upon definition, the plaintiffs did not provide enough credible sources to establish an international norm, and thus the generalized claims did not amount to violations of the law of nations. (31) The court also dismissed the plaintiffs' additional claims under the ATS, claiming that the plaintiffs provided even less convincing support from the international community to establish these causes of action. (32) The court specifically declined to follow Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007), stating that the international sources used by plaintiffs did not satisfy the law of nations requirement of near universality, and additionally, that the case facts were not sufficiently analogous to those cases which did find terrorist actions to be violating the law of nations. (33) The remainder of the dismissed claims consisted of state-law claims and their Colombian law counterparts. (34) The court chose not to extend the parameters of supplemental jurisdiction and dismissed both sets of claims, pointing to the absence of any substantial effect on the states and the Eleventh Circuit's lack of competency to decide them. (35)

In dealing with multiple, disparate claims against Chiquita, the District Court for the Southern District of Florida cherry-picked from existing case law in such a way that invites appellate review. (36) The court relied heavily on the landmark case Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) in its evaluation of the ATS, but chose to ignore the Sosa court's consideration of international comity when dealing with potential new claims such as terrorism or material support of terrorism. (37) After properly determining a preliminary statutory matter, the court incorrectly viewed the plaintiffs' claims of terrorism as too broad and without a precise enough definition. (38) Relying on case law involving entirely different factual circumstances, the court reached the result it desired. (39) Furthermore, the court showed misplaced deference to an Eleventh Circuit ruling that dealt with the killing of an individual person, instead of widespread, systematic killings of people. (40)

The most troubling aspect of the court's ATS analysis and ultimate rejection of the claims regarding terrorism and material support of terrorism was its treatment of the Almog decision. (41) First, the In re Chiquita Brands Int'l., Inc. court simultaneously treated the international sources cited by the previous decision as both too general and too fact specific, emphasizing that Almog stated it was not making a definitional ruling on what constitutes terrorism by international standards. (42) Second, the court distinguished Almog on the grounds that the decision was intensely fact-specific, despite Almog's factual scenario being more analogous to In re Chiquita Brands, Int'l., Inc. than the cases that the court relied upon. (43) Almog specifically found that organized killings or attacks on innocent civilians aimed at controlling the population are universally condemned. (44) The fact that innocent Colombian civilians were killed by AUC death squads knowingly funded by the corporation being sued, rather than suicide bombs, should be an immaterial difference. (45) The court had more substantive grounds on which to deny some of the plaintiffs' other non-terrorism based ATS claims because multiple U.S. courts have specifically ruled that there is no authority to support these claims as being included under the ATS. (46)

Despite mishandling significant case law and legal sources, the court understood that the Chiquita Corporation could be held liable for some of its own actions as well as those of the AUC. (47) Varying in scope from the executions of civilians to coordinating the shipments of illegal firearms, the AUC and Chiquita worked with local government officials to make Uraba the epicenter of ATS violations: torture, killing, war crimes, and crimes against humanity. (48) Perhaps in response to its semantic handling of the terrorism claims, the court tried to use the TVPA as a basis to "double-down" on torture and extrajudicial killing based claims. (49) The court tried to expand the ATS by taking a very broad view of the case...