Alex Constantine - October 3, 2014
By JACK BOUBOUSHIAN
(CN) - Relatives of coal miners and union leaders killed by Colombian paramilitary forces cannot sue Drummond Co. in U.S. courts for its alleged support of murders anrd war crimes, the 11th Circuit ruled.
Valmore Locarno Rodriquez, Victor Hugo Orcasita Amaya and Gustavo Soler Mora worked for Drummond's coal mining operation in Colombia, South America until their murders in 2001. All three were officials of a union, Sintramienergetica.
Their children and heirs claimed that Drummond conspired with right-wing paramilitaries forces of Autodefensas Unidas de Colombia (AUC) to murder and terrorize union workers at the mine.
"Almost every family in these provinces lost a family member, a neighbor or friend to war crimes committed by the AUC during its brutal civil war with the FARC [Fuerzas Armadas Revolucionarias de Colombia]," the complaint states.
The AUC was created in the 1990s to fight left-wing guerillas led by FARC and the National Liberation Army (ELN), which have been engaged in a decades-long conflict with the Colombian government.
AUC terrorized civilians throughout Colombia, engaging in executions, rape, torture and large-scale attacks on civilians whom the AUC considered guerrilla supporters or sympathizers. It also targeted "socially undesirable" groups, such as indigenous persons, people with psychological problems, drug addicts and prostitutes.
The Colombian government criminalized membership in and support of paramilitary groups in 1991. However, private security groups known as "convivir" units still organized under AUC leadership, and claimed to provide security for companies from left-wing attacks.
The 11th Circuit recently threw out a similar lawsuit against Chiquita Brands International for allegedly funding AUC murders, basing its decision on the Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum.
Decided last year, Kiobel barred torture claims brought against Shell Petroleum under the Alien Tort Statute (ATS) because none of the activity underlying the suit took place in the U.S.
In this case, the 11th Circuit also found that the alleged violations of international law all took place in Columbia, not in the U.S.
"Plaintiffs' first amended complaint paints a picture of violence between two warring factions in Colombia. Drummond elected to back the AUC, which committed acts of violence against leftist guerillas who threatened Drummond's personnel and property. Plaintiffs allege that the AUC killed civilians who they believed were affiliated with the guerillas (including Locarno, Orcasita, and Soler)," U.S. District Judge Orinda Evans said, sitting by designation on the three-judge panel. "Certain Colombian nationals have been convicted of committing the murders of Locarno and Orcasita. Assuming arguendo that Drummond was complicit in these murders in the manner described by plaintiffs (this is denied by Drummond), the allegations and evidence still do not show conduct focused in the United States."
The Atlanta-based appeals court denied the plaintiffs leave to amend, finding that amendment would be futile and needlessly prolong an 11-year long litigation. "[W] e dismiss plaintiffs' claims for violation of the law of nations brought under the ATS because the presumption against extraterritoriality has not been overcome," Evans said.