Why We Needed Chiquita to Clarify Kiobel

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Yesterday we got word that the United States Supreme Court will not hear Cardona v. Chiquita Brands International, a lawsuit on behalf of victims of terrorism in Colombia. This landmark case could have decided whether U.S. courts can hold corporations accountable for human rights abuses they commit abroad under the Alien Tort Statute (ATS), a federal law that allows foreigners to sue for violations of international human rights law. By declining to hear the case, the Supreme Court has created yet another obstacle in the path of victims seeking remedies for abusive corporate actions abroad, and allows a U.S. corporation to get away with financing terrorism without accountability to its victims in U.S. courts.

Many who follow our work in transnational litigation using the ATS know it hasn’t been easy for us in the last couple of years.

We filed a petition to the Supreme Court with the families of the victims in December 2014 after the U.S. Court of Appeals for the Eleventh Circuit dismissed all claims arising under the ATS last July. The court held that despite the fact that Chiquita is a U.S. company that made decisions in the U.S. to finance paramilitary death squads, in violation of U.S. criminal law, the victims’ claims under the ATS lacked sufficient connection to the United States to be heard in U.S. courts.

For human rights advocates around the world, this ruling was particularly baffling considering Chiquita had admitted on official record to paying the paramilitaries in response to a U.S. government investigation. In fact, in 2007, Chiquita pled guilty to federal criminal charges for providing material support to the terrorist group, becoming the first and, thus far, only, corporation convicted of “engaging in transactions with a specially designated global terrorist.”

In addition to addressing the Eleventh Circuit’s paradoxical finding, the Supreme Court petition sought to resolve some ambiguities arising from the Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum. In Kiobel, the Court held that the law does not apply to claims that have only a weak connection to the United States. In a unanimous decision, the Court held, “[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”

The ambiguity surrounding the meaning of the terms “touch and concern” and “sufficient” has led to inconsistencies between circuits in the application of the standard. For example, in June 2014, the Fourth Circuit held in Al-Shimari v CACI et al., that the bad action itself does not have to occur on U.S. soil to “touch and concern” the U.S. The Eleventh Circuit’s decision, drafted by a visiting judge from the D.C. Circuit, Judge David Sentelle, seems to take the opposite view. According to Sentelle, “There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.”

So now we’re left with a four-way circuit split – a situation where four of the twelve appellate circuit courts have come to diverging decisions on how to interpret Kiobel.  And in all of the except for the Eleventh Circuit, the Chiquita case would have passed muster.  It’s a real shame that the Supreme Court passed on a chance to show that justice can be served when U.S. companies choose to unleash horrific violence in a foreign land.

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