If the top executives of a U.S. company, sitting in a Board room in Ohio, approve and hide illegal payments to a terrorist organization, does it concern the United States? 

What if that company pleads guilty to the Department of Justice for the crime of paying the terrorist organization and then pulls out of the foreign country where the terrorists operate?  And if Congress says that foreigners can come into U.S. courts to seek justice for violations of international law, can that law encompass torture, war crimes and crimes against humanity committed by those same terrorists, if the abuses were committed abroad?

According to two appellate judges in Florida, no, no, and no.

The case in question is In re Chiquita Brands International, Inc., in which the family members of victims of Colombian right-wing paramilitary death squads are suing the banana company for paying and giving logistical support to the murderers. A paramilitary group called the United Self-Defense Forces of Colombia, or AUC (Autodefensas Unidas de Colombia) in Spanish, used Chiquita’s support to spread terror in the banana-growing region of Urabá, where it killed thousands of villagers, labor leaders, and community organizers, who were suspected of favoring leftist guerrillas or making trouble for the plantation owners.  Chiquita made a deal with the AUC: a 3-cent payment for each box of bananas shipped from the area.  These payments to the AUC were illegal under U.S. law, and Chiquita pled guilty and paid a fine to the Department of Justice in 2007.

The law at issue in yesterday’s decision is the Alien Tort Statute (ATS).  The ATS is an 18th-century law that opens U.S. federal courts to the claims of foreigners who have been harmed by violations of “the law of nations” – a category of international law that now includes international human rights prohibitions on war crimes, crimes against humanity, and torture.

It seems pretty straightforward that victims of terrorist violence should be able to at least try to prove their case in U.S. courts when they are harmed by the actions of a U.S. citizen – be that citizen a human being or a company.  This seems especially true in a case like this one, where the local authorities no longer have the power to hold Chiquita accountable because the company has sold all its interests and assets in Colombia.  Where else should a victim go for justice in such a situation, if not the home country of the person that caused the injury in the first place?

But while the principle that the ATS could be used to in human rights cases was accepted decades ago, it stirred up a hornet’s nest when courts started extending that principle to corporations that fund or instigate atrocities, such as those committed by Colombian paramilitaries, the Burmese military regime, or U.S. military contractors in Iraq.  Corporate America struck back hard, whittling away at the ATS through a series of lower court decisions that limited the situations in which companies could be held liable and, in one case, excluded corporations altogether as defendants in ATS suits.

This backlash culminated last year in Kiobel v. Royal Dutch Petroleum, a showdown at the Supreme Court in which oil giant Shell squared off against Nigerian villagers over the question of whether the ATS was meant to reach abuses that took place in other countries at all.  The court ended up partially (but not entirely) agreeing with the company, concluding that the ATS does not cover cases in which the abuses occurred abroad unless they “touch and concern the territory of the United States with sufficient force.”  The meaning of this “touch and concern” test remains unclear, but many courts considering ATS cases have taken a very fact-specific approach since Kiobel.  For example, in one case, the court considered factors such as the nationality of the defendant, the extent to which conduct or contracts related to the abuses were completed in the United States, and connections to the U.S. government.

The majority opinion in the Chiquita case sweeps all these considerations away, however, and states (erroneously) that there is no statute that allows the federal courts to hear torture suits against corporations when that torture took place abroad.  But that’s not, of course, what the Supreme Court said in Kiobel, and it makes little sense as a matter of domestic or international law.  (Typically, governments are allowed and expected to regulate their citizens’ conduct, even when that conduct takes place abroad, and U.S. courts are generally open to tort suits against Americans for things that happened anywhere in the world.)

Legal jargon aside, it’s clear that U.S. industry is trying to avoid accountability for its global actions, and it’s willing to undermine one of the few truly effective avenues for transnational justice as collateral damage in pursuit of the mission.  Yesterday’s decision is a sad capitulation to that effort, and while I’m confident it will be corrected on further appeal, it’s disturbing that it even appeared in the first place.  Why should any U.S. persons be immune from lawsuits in the United States when they contribute to unspeakable atrocities abroad – especially when they fund these abuses from the United States and their contributions constitute crimes under U.S. law?  As Judge Beverly Martin wrote in her dissenting opinion in the Chiquita case, “By failing to enforce the ATS under these circumstances, I fear we disarm innocents against American corporations that engage in human rights violations abroad. I understand the ATS to have been deliberately crafted to avoid this regrettable result.”