U.S. Attorneys with Colombian Heart: Reflections on Doe v. Chiquita

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I remember Paul Hoffman  sitting outside the 11th Circuit courtroom in April, waiting for his turn to argue his case. His case is the case of four thousand Colombians victimized by the paramilitaries paid by Chiquita, the banana company. His indignation is the pain and suffering of four thousand Colombians, his voice echoes their strength.

Hoffman is a man with a great heart and sense of humor.  “You are obviously overdressed,” he told me in the lobby of a hotel in Miami, where we met one day before the arguments for Chiquita.  Later that day he would tell Rick Herz, Litigation Coordinator at ERI, “he did not receive the memo about the dress code.”  In my defense, I forgot to bring my shorts to Miami.

Hoffman and Herz were there to defend the Colombian victims.  They wanted to make everybody understand that the massacres aided by Chiquita do “touch and concern the territory of the United States… with sufficient force to displace the presumption against extraterritorial application,” as the Supreme Court required in Kiobel v. Royal Dutch Petroleum.

Helping them was the least I could do.  It has been absolutely inspiring to see how their idea of justice drives them in fighting this battle.  Hoffman and all the attorneys representing the Colombian victims have come to understand that this is their cause, too, even if they haven’t seen victims displaced by violence in Colombia with their own eyes, as I have, and as ERI’s lawyers have.  Truly, it was not necessary for them to witness such lack of fairness in order to understand that this is a fight in the name of justice.

In addition to answering questions on Colombian law for Chiquita, I was also privileged to coordinate the draft of an amicus (“friend of the court”) brief on relevant issues in Jane Doe v. DrummondChiquita and Drummond are cases about American companies making payments to paramilitary groups.  In both cases the paramilitaries committed summary executions, persecuted the civilian population, and committed other crimes against humanity affecting employees or union leaders and their relatives.  Since both cases are litigated before the 11th Circuit, it was important to also take a stance in favor of the victims in Drummond.

The amicus brief joined the voices of different Colombian scholars and practitioners supporting the plaintiffs.  These amici[1] explained that the U.S. district court’s ruling – that the paramilitary persecution supported by Drummond could not be crimes against humanity if the victims were targeted due to their suspected links with guerrillas – was contrary to Colombian and regional jurisprudence.  A number of rulings from the Colombian Supreme Court have held that paramilitary atrocities against civilians are crimes against humanity even when those civilians were suspected to be somehow linked with the guerrillas.[2]

Colombian voices must be heard in the Colombian cases conducted in the United States.  The fact that justice cannot be safely or transparently pursued in Colombia does not mean that it cannot be pursued at all in the United States.  While corruption and insecurity are obstacles to seeking redress in Colombia, survivors are pursuing justice before U.S. courts under the Alien Tort Statute.

During the Chiquita arguments two judges asked Hoffman about Kiobel and formal elements of the complaints that survived a motion to dismiss before the district court.  “If this case does not touch and concern the United States, none does,” was Hoffman’s last sentence at the arguments before the 11th Circuit Court.

U.S. courts are hearing the outcry from the Colombian victims.  Hoffman, ERI and other brave attorneys are fighting their best fight against injustice.  While some big law firms decided to defend the perpetrators of the Colombian conflict, ignoring our painful history of violence, the courage, enthusiasm, altruism and strategic approach of the plaintiffs’ attorneys must be acknowledged.  The Colombian victims could not be better represented.  May truth and justice guide U.S. judges to rule on these cases.


[1] Colombian Commission of Jurists, Legal Option Corporation, Judicial Clinic for Rights and Territory of the Pontificia Universidad Javeriana, Gustavo Gallón Giraldo, Juan Camilo Rivera Rugeles, Raúl Hernández Rodríguez, Juan Felipe García Arboleda, Ekaterina Ortiz Linares, Juan Pablo Calderón Meza.

[2] See Laverde Zapata, Case No. 33301 (Supreme Court of Justice, 2010) (Colombia).

Juan Pablo is a Colombian attorney who has witnessed the consequences of Colombia's armed conflict, and has closely followed the legal cases addressing atrocities committed in that war. He has worked in the dispute resolution practice of different Colombian law firms and is a member of Fundación Probono Colombia, the International Bar Association and the Colombian Academy of International Law. He is also the Len Rubinowitz Fellow at EarthRights International‘s (ERI) DC office this summer. These are his reflections working on Doe v. Chiquita.

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