Monday, February 28, 2011

US Court Reinstates ATS and TPVA Claims of Columbian Children Whose Labor Organizer Fathers Were Killed by Paramilitary Hit Squads

The U.S. Court of Appeals for the Eleventh Circuit recently reinstated the claims of the children of three murdered union leaders in Columbia under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) (both found in 28 USC sec. 1350) in the case of Locarno Baloco v. Drummond Co., No. 09-16216.  The children are seeking damages for emotional harm, loss of companionship and financial support. The U.S. District Court previously had dismissed the case for lack of standing.

The plaintiffs sued the mining firm, Drummond Co., and other related parties after their fathers were pulled off a Drummond bus and murdered by paramilitary soldiers in 2001. The victims were all union leaders involved in organizing Drummond employees in Colombia, where the plaintiffs asserted there exists a “long history of trade union violence.”  Plaintiffs allege that Drummond paid members of the United Self-Defense Forces of Colombia—a paramilitary group commonly referred to as the AUC—to carry out the murders in order to facilitate the downfall of the union.
The standing doctrine is derived from Article III of the U.S. Constitution, which requires that plaintiffs present an actual "case or controversy" to invoke the jurisdiction of the courts.  Standing requires a plaintiff to demonstrate (1) injury, (2) caused by the defendant, and (3) redressibility.   In this case, the court found that loss of a parent was clearly an “injury-in-fact,” the allegations of murder-for-hire provided a connection between that injury and the defendants, and, although monetary damages are an imperfect substitute for loss of a loved one, such awards are viewed as adequately redressing the injury for purposes of standing.
The court then went on to address the statutory requirements of the ATS and the TVPA.  The court noted that the ATS gives U.S. courts jurisdiction over violations of established international norms.
In this case, the court stated that the plaintiffs alleged an “intricate and vindictive plot, orchestrated by the defendants, that ultimately led to the assassination of the children's fathers,” which, if true, “establishes a violation of international law sufficient for purposes of triggering ATS liability.”
With respect to the TPVA, the court stated that the statute “provides that the perpetrator of an extrajudicial killing can be held liable for ‘damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.”  The plaintiffs submitted evidence to show that under Columbian law, the children are “legal beneficiaries” of their parents, entitling them to sue for their personal damages. The court thus held that they had standing to sue under the TVPA, reversing the lower court.
To read the full text of the case, click here.

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