At 1 a.m. on May 17, 2001, approximately fifty heavily armed paramilitaries, some wearing AUC uniforms, surrounded Pablo Perez 1’s home, broke down the door, and proceeded to savagely beat members of his family. The paramilitaries attempted to rape Juana Perez 1 but were ordered to stop by an unidentified paramilitary leader. After an hour had passed, the paramilitaries took Pablo Perez 1 prisoner, taking him away with at least ten other victims they had captured that night elsewhere. Pablo Perez 1 was never found.
The above account appears in a lawsuit filed by attorneys representing approximately 4,000 people whose family members were killed by the Autodefensas Unidas de Colombia (AUC). But the lawsuit isn’t against that brutal paramilitary group, which worked closely with Colombia’s military. It’s against Chiquita Brands International for allegedly colluding with the paramilitary group to suppress labor unrest from 1997 to 2004.
“Pablo Perez 1” and “Juana Perez 1” are pseudonyms. There are hundreds of other Pablo Perezes and Juana Perezes.
Here’s what happened to Pablo Perez 50, according to the lawsuit:
In the early morning hours of November 1, 1997, a group of heavily armed paramilitaries dressed in camouflaged uniforms stormed Pablo Perez’s home in the village of Guacamayal, in the banana zone of Magdalena, while he was sleeping. The paramilitaries broke down the door to the home, found and seized him, tied him up, and forced him to accompany them at gunpoint, beating him as they kidnapped him. His corpse was found the following morning with signs of torture and two gunshots, one to the head and one to the body.
The lawsuit, In Re: Chiquita Brands International, Inc., Alien Tort Statute and Shareholders Derivative Litigation, alleges that the banana corporation has “secondary liability” for the paramilitary group’s involvement in these, and many other, acts.
The Alien Tort Statute dates to 1789 and allows foreigners to file suit in U.S. courts for violations of “the law of nations.” The plaintiffs are also relying on the Torture Victim Protection Act, which President George H. W. Bush signed in 1992.
On June 3 of this year, Judge Kenneth Marra, of the district court in West Palm Beach, Florida, ruled on the company’s motion to dismiss all charges. The judge dismissed some of the claims against Chiquita but allowed the plaintiffs to go forward against the company for its alleged involvement in “torture, extrajudicial killing, war crimes, and crimes against humanity.”
Chiquita disputes all the allegations, calling them “outrageous” and “false” and “meritless.” Chiquita spokesman Ed Loyd said in a statement. “To be clear, there is no allegation that Chiquita itself committed any of the crimes perpetrated by the Colombian terrorist groups,” he added. “The only allegation is that Chiquita should be held responsible for these crimes by virtue of the money that it was forced to pay.”
Actually, the plaintiffs are alleging that Chiquita did much more than simply pay the paramilitary group.
According to the complaint, in 2001 a ship left Nicaragua carrying 3,000 AK-47 assault rifles and five million rounds of ammunition, and instead of docking in its official destination, Panama, dropped off the weaponry at a port facility run by Chiquita’s wholly owned subsidiary Banadex, in Turbo, Colombia. Port employees stored the guns and ammo for two days, then loaded them onto AUC vehicles. In an interview with Colombia’s newspaper, El Tiempo, AUC founder Carlos Castaño called the procurement “the greatest achievement by the AUC so far,” and claimed there had actually been five shipments totaling 13,000 rifles.
The complaint also alleges that the payments by Chiquita were not made under duress but were intended to serve the company’s financial purposes: “Castaño informed Chiquita’s executives that the AUC would use money it received from Chiquita to finance paramilitary terrorism tactics that would be used to drive the leftist guerrillas out of the Santa Marta and Uraba banana-growing regions; protect the company, its executives, employees, and infrastructure from future attacks by leftist guerrillas; and create a business and work environment that would enable Chiquita’s Colombian banana-growing operations to thrive.”
The cooperation was close and lethal, the lawsuit alleges.
“Chiquita also used the AUC to resolve complaints and problems with banana workers and labor unions,” the suit says. “Among other things, when individual banana workers became ‘security problems,’ Chiquita notified the AUC, which responded to the company’s instructions by executing the individual. According to AUC leaders, a large number of people were executed on Chiquita’s instructions in the Santa Marta region.”
Chiquita had been operating in Colombia since the early 1960s through Banadex. “In 2003, Banadex was Chiquita’s most profitable banana-producing operation in the world,” Judge Marra wrote, adding in a footnote that “Chiquita sold Banadex in June 2004 and no longer owns a Colombian subsidiary.”
Chiquita’s lawyers had urged Judge Marra to dismiss the entire case on a variety of grounds he found unpersuasive.
On the essential point concerning the connection between Chiquita and the AUC’s horrific crimes, the judge again ruled for the plaintiffs. He said they submitted “detailed and voluminous allegations” that “sufficiently plead that Chiquita provided assistance to the AUC for the purpose of furthering the AUC’s torture and extrajudicial killing in the banana-growing regions.”
Chiquita strongly disputes that. “The court’s ruling makes it clear that for these claims to succeed, plaintiffs will have to prove that Chiquita shared the murderous aims of the AUC—not merely that Chiquita knew the AUC was a violent group,” company spokesman Loyd asserted. “The plaintiffs will never be able to prove this, because it is not true. These were extortion payments made to protect the lives of Chiquita’s employees.”
Amusingly, given the Supreme Court’s Citizens United decision that said corporations are persons, Chiquita also tried to argue that it couldn’t be prosecuted under the Torture Victim Protection Act because that statute refers to “an individual” who engages in torture, and therefore “it only covers human beings, and not corporations.” Judge Marra cited a precedent prior to Citizens United that concluded that the Torture Victim Protection Act applied to “corporate defendants,” as well as flesh-and-blood individuals.
The massive civil litigation is fallout from a March 2007 criminal indictment, in which the U.S. Attorney for the District of Columbia Jeffrey Taylor charged Chiquita with “engaging in transactions with a specially designated terrorist organization,” namely, the AUC. Secretary of State Colin Powell had declared the paramilitary group a foreign terrorist organization in 2001, thus prohibiting “any United States person” from providing the group with material support or resources, including any kind of money or weapons. The indictment didn’t charge individuals even though it stated that nine Chiquita employees, including five high-ranking corporate officers, had played roles in approving or delivering $1.7 million to the group from 1997 to 2004, in 100 installments. Nearly half of that sum went to the AUC after its 2001 terrorist designation.
According to the indictment, in March 2003 high-ranking Chiquita executives ignored the advice of “outside counsel” that the company “must stop” paying the group. Prosecutors also documented a Chiquita board of directors meeting in April of that year during which two executives revealed to their colleagues that the corporation had been funding a foreign terrorist organization. An alarmed board member responded by suggesting the banana company consider taking immediate corrective action, including selling its operations in Colombia.
Sensing they were in big trouble, senior executives from Chiquita then sought a meeting with Justice Department officials and basically confessed to breaking the federal antiterrorism statute. At an April 24, 2003, meeting Justice Department attorneys warned the executives that the payments must stop. But Chiquita continued to authorize payments to the paramilitary group. Investigators documented an internal Chiquita conversation in which senior executives advocated a strategy of continuing to fund the AUC and forcing the Justice Department to “come after us.” Four years later, prosecutors did.
In a deal negotiated with the help of future Attorney General Eric Holder, who was then one of Chiquita’s lead lawyers in the case, the banana firm pleaded guilty to making payments to a designated terrorist organization.
“Funding a terrorist organization can never be treated as a cost of doing business,” stated U.S. Attorney Taylor.
“The payments made by the company were always motivated by our good-faith concern for the safety of our employees,” the company said in a press release the day the plea was announced. “Nevertheless, we recognized—and acted upon—our legal obligation to inform the DOJ of this admittedly difficult situation. The agreement with the DOJ today is in the best interests of the company.”
Chiquita agreed to pay a $25 million fine. That’s a small fraction of the company’s annual revenues, which Chiquita has reported to be about $4 billion in recent years.
If the civil lawsuit now proceeding in Florida were to succeed, it would vastly eclipse that criminal fine. Plaintiffs’ lawyers are not specifying how much they might seek. But if jurors were to award just $5 million per client—which would be at the low end of the spectrum of U.S. jury awards for wrongful death cases nowadays—damages would exceed $20 billion. Back in 2002, a federal jury in Florida awarded $54 million to Juan Romagoza, Carlos Mauricio, and Neris Gonzalez, three abduction and torture victims in El Salvador in the 1980s who held Salvadoran generals Jose Guillermo Garcia and Carlos Vides Casanova responsible for those crimes.
“I think we can prove our case,” says James K. Green, lead lawyer for one group of plaintiffs in the Chiquita action, two of whom are torture survivors. Green was the attorney for the Salvadoran abduction and torture victims, and in that trial he also used the Alien Tort Statute and the Torture Victim Protection Act.
Chiquita is calling the plaintiffs’ lawyers extortionists. “Sadly, this case has been brought by plaintiffs’ attorneys whose main interest is to extort legal fees from companies, rather than addressing the violence we all condemn,” said Chiquita’s Loyd.
Outlines of the firm’s defensive strategy were already evident in the public relations message it put out soon after the company pled guilty in 2007 (and which Loyd recently forwarded to me). In a statement published by the U.S. Chamber of Commerce in April of that year, Chiquita CEO Fernando Aguirre gave this rationale for funding the AUC: “During the 1990s, it became increasingly difficult to protect our workforce. Among the hundreds of documented attacks by left- and right-wing paramilitaries were the 1995 massacre of twenty-eight innocent Chiquita employees who were ambushed on a bus on their way to work, and the 1998 assassination of two more of our workers on a farm while their colleagues were forced to watch.” Aguirre added that AUC commander Castaño had “sent an unspoken, but clear message that failure to make the payments could result in physical harm” to Chiquita employees.
Plaintiffs’ lawyers will tell a much different story. “Imagine a group of workers here in the United States of America, and a foreign corporation comes in and pays vigilantes to kill them because they are exercising their labor rights. It would cause a national uproar!” says John De León, a lawyer for eight of the plaintiffs. Hanging in his Miami office is a portrait of Jacobo Arbenz, the democratically elected leftist president of Guatemala who was deposed in a 1954 coup backed by Chiquita’s forebear, United Fruit. He notes the banana trees in the background behind Arbenz.
Once again, De León says, we have “a foreign national company going into a country to do business and conspiring with locals to silence and sometimes kill people who are not helpful to their business or financial interests.”
Ironically, one large group of prospective plaintiffs refused to join the civil suit because of the possibility of an out-of-court settlement. “They saw that the legal strategy wouldn’t satisfy their rights to truth and justice,” says Dora Lucy Arias Giraldo, a lawyer who works with war crimes survivors in the village of San Jose de Apartado. She says residents are demanding an international tribunal: “The community believes that the most important thing is that the executives are declared responsible for having promoted violence against them.” People there, she says, want “not just a check” but an acknowledgment of wrongdoing, a public airing of the company’s complicity, and punishment for all guilty corporate executives. Such an international tribunal, she conceded, is just a dream at this point.
So, too, is the prospect of Chiquita shelling out billions to victims’ families any time soon.
Kirk Nielsen is a journalist and writer based in Miami Beach.