On December 13, 1998, the Colombian Air Force, which has received millions of dollars of assistance from Occidental Petroleum, bombed the small hamlet of Santo Domingo, Colombia, killing 17 civilians, including 7 children. As the LA Times later exposed, this bombing was planned in Room G of Occidental Petroleum’s offices in CaZo Limon; was conducted with the assistance of Occidental’s security contractor AirScan (another U.S. company) which, utilizing a Skymaster plane provided by Occidental, gave the coordinates for the bombing to the Colombian Air Force as this bombing took place. In addition, the Colombian Air Force liason to Occidental participated in the bombing raid.
In response to this bombing, Colombian Plaintiffs who lost relatives in this bombing commenced an action in a federal court in Los Angeles (where Occidental is based) against both Occidental and AirScan under the Alien Tort Claims Act ("ATCA"). The ATCA was passed over 200 years ago and, as the Supreme Court last summer affirmed in the case of Sosa v. Alvarez-Machain, provides a cause of action for foreign nationals to sue in U.S. courts for injuries suffered as the result of the violation of well-established international human rights norms. Last February, the court in Los Angeles, at the request of Occidental and over the strenuous objections of the Colombian Plaintiffs, asked the U.S. State Department for its opinion about the implications of the lawsuit for U.S. foreign policy in Colombia. The State Department found itself in a difficult position, for while its foreign policy in Colombia is largely driven by Occidental’s security concerns in that country (more on that later), the State Department had actually condemned the bombing and had consequently cut off assistance to the Colombian Air Force unit involved in the bombing. Therefore, it was hard for the State Department to honestly say that the lawsuit seeking justice for the victims of the bombing of Santo Domingo – a bombing it had condemned – somehow contradicted U.S. foreign policy. As a result, the State Department answered the court’s query in April of 2004 by stating that it had no opinion about the case.
This was disappointing to Occidental which counted on the State Department to bail it out of its legal troubles. And indeed, as the LA Times reported on December 30, 2004 in an article entitled, "U.S. Troops Answered Oil Firm’s Pleas," the State Department had come to Occidental’s rescue in the past by securing approximately $100 million dollars in assistance (from U.S. taxpapers) to the Colombian military for the express purpose of protecting Occidental’s pipelines in Colombia. The U.S. has also recently sent U.S. Special Forces to Colombia for the same purpose.
Believing that it could get the State Department to help it out again, Occidental lobbied the State Department to change the position set forth in its April, 2004 letter and to take an express position against the lawsuit. The State Department complied with this request, and, on December 23, 2004, sent a revised letter to the court in L.A., now indicating that it believed the lawsuit would adversely impact U.S. foreign policy in Colombia and urging the court to dismiss the case. Betraying its true interests in Colombia and in the case, the State Department’s letter is largely dedicated to explaining how the business and investments of Occidental, and other like companies operating in Colombia, will be adversely threatened if this lawsuit is allowed to go forward in the U.S. The State Department urges that the case be dismissed in the interest of these companies and in the interest of the U.S.’s continued access to oil in Colombia.
Of course, the sinister implication of this revised State Department position is that the business and investments of multinationals doing business in Colombia are not safe unless these multinationals are protected from lawsuits for their egregious violations of human rights.
The other notable thing about the letter is that the State Department argues that the case should be tried in Colombia, and that the Colombian Plaintiffs, who have already suffered at the hands of the Colombian government, should seek justice there. This is a quite cynical position given the State Department’s own human rights report on Colombia in which it concludes that in 2003, the most recent year reported on, the Colombian "Government’s human rights record remained poor" and that 3,000 to 4,000 civilians were killed in the armed conflict. And, even more to the point, the State Department concluded that the Colombian courts are "overburdened, inefficient, and subject to intimidation and corruption by terrorist groups and common criminals," and that "[i]mpunity [for human rights crimes] remained at the core of the country’s human rights problems." In short, while the State Department urges the U.S. court to let the Colombian government handle the case, it is quite aware that if left to the corrupt Colombian system, the Plaintiffs will never find justice. And, this is apparently just fine with the State Department.
This is not the first time the State Department has intervened in such a case. Thus, the State Department sent a similar letter to the court in the case against Exxon-Mobil for its role in sponsoring repressive security forces in Aceh, Indonesia which have murdered scores of civilians, including some who have ended up in mass graves on the Exxon site in Aceh. And, one court has already dismissed a case (involving human rights violations by the Rio Tinto mining company in Papua New Guinea) based upon a similar State Department letter. While no final ruling has been made in the Occidental case, the court has made it clear that it is seriously considering the State Department’s letter in deciding whether it will dismiss the case.
What is disturbing about this State Department interference in these cases, and the courts’ receptivity to it, is not only the obvious adverse implications for the ability of victims of human rights crimes to obtain justice, especially when the perpetrator is a powerful corporation with undue influence over the State Department, but also the implications for our very democratic system. Thus, if the State Department, by the mere stroke of a pen, can eviscerate a legal cause of action created by Congress over 200 years ago, and reaffirmed by legislation signed into law in 1991, this does not bode well for the continued independent functioning of our courts or for the effective functioning of our Congress. In essence, the State Department is usurping the power of both of these branches of government through its insertion into these cases, threatening the balance and separation of powers which are the very foundation of our democratic system.
Daniel Kovalik is labor and human rights lawyer in Pittsburgh and is one of the lawyers for the Plaintiffs in the case against Occidental.