Colombian Killings Land U.S. Company In American Court

Wall Street Journal

Mining Concern Faces Suit Over Right-Wing Attacks; New Life for a 1789 Act

By Pui-Wing Tam in Washington and Marc Lifsher in La Loma, Colombia

One evening in March 2001, a bus carrying Valmore Locarno and Victor Orcasita home from work at a Drummond Co. coal mine in La Loma, Colombia, was stopped by members of a right-wing paramilitary group. The armed men boarded the bus as it stood on a paved road cutting across the hot, open plains, eyewitnesses say in interviews. The fighters called for the pair, leaders of a union at the mine, and accused them of "having a problem with Drummond," eyewitnesses say. Then Messrs. Locarno and Orcasita were hauled off the bus, which Drummond had chartered.

Mr. Locarno, 38 years old, was shot immediately. Mr. Orcasita, 37, was found later by the side of the road, a bullet in his head and his teeth knocked out.

Seven months later, their successor at the union, Gustavo Soler, 36, was pulled off a public bus by paramilitary members who sought him out by name, according to both the union and the company. Farmers found his corpse two days later. He had been shot twice in the head.

No one has been arrested in the killings. A Colombian government spokesman says investigations have been delayed by the refusal of victims' families and union members to talk, because of their fear of reprisal.

What those relatives and the union have done is file a civil lawsuit against Drummond -- not in Colombia, but in Birmingham, Ala. The suit accuses the mining company, which is based in that city, of supporting paramilitary fighters at its facilities, thereby making Drummond liable for the deaths.

The plaintiffs have invoked a once-obscure 1789 law, the Alien Tort Claims Act, or ATCA. Activists are using the law to try to police corporate behavior overseas. Among the other companies now fighting such suits: Unocal Corp., Exxon Mobil Corp. and Coca-Cola Co. The Drummond case could be among the first to come to trial, as soon as sometime next year.

Drummond, a family-owned company, denies any role or liability in the deaths of the union leaders. It says it has no ties to Colombia's right-wing paramilitary groups, which have fought a long war against leftist guerrillas.

Companies have said these sorts of suits don't belong in the U.S. It is impractical for American courts to resolve murky disputes from thousands of miles away, the opponents say. The Bush administration has intervened to seek dismissal of three ATCA cases, arguing that they could complicate U.S. foreign policy. It hasn't taken that step in the Drummond case.

Drummond's lead attorney, William Jeffress, suggests in an interview that animosity between rightist forces and the miners' union -- having nothing to do with the company -- led to the union leaders' deaths. "We just don't know what problems these men [the three victims] had with the paramilitaries," he says. He calls the suit an attempt by overzealous lawyers to collect money from a deep-pocketed American company.

Whoever killed the unionists was "working contrary to Drummond's interests," says company Vice President Mike Tracy. "We feel like we're the victims here." The company isn't disputing most of the eyewitness accounts of the killings cited in the plaintiffs' legal papers. But Drummond says it hasn't found anyone who heard the killers of Messrs. Locarno and Orcasita say the pair "had a problem with Drummond."

Originally enacted to combat seafaring pirates, the ATCA allows foreigners to sue in U.S. courts for violations of an American treaty or international law, which is a large collection of rules that include prohibitions on forced labor, torture and genocide. In recent years, American courts have grown more flexible in allowing ATCA actions. The claim in the suit against Drummond is that the company's alleged relationship with paramilitary forces implicated it in execution-style killings that under international law constitute war crimes in Colombia's civil war.

Proponents of ATCA suits say the legal actions are sometimes the only way to hold U.S. corporations responsible for human-rights abuses overseas. "The judicial system [in Colombia] doesn't work," says Myles Frechette, the U.S. ambassador to that country for part of the Clinton administration. For that reason, the plaintiffs in the Drummond case didn't sue in Colombia, says Terry Collingsworth, their lead attorney.

Mr. Collingsworth heads the International Labor Rights Fund in Washington, which has filed eight ATCA suits in recent years. The United Steelworkers are helping with the Drummond case as part of a broader effort to stop union killings abroad. Mr. Collingsworth calls the Drummond suit "the cleanest case we have," in part because a wholly owned Drummond subsidiary based in the U.S. operates the Colombian mine. Other ATCA suits have been slowed by questions about the responsibility of U.S. companies for foreign subsidiaries.

A number of individuals have been found liable under the act, including Bosnian-Serb leader Radovan Karadzic. In 2000, he was found liable for genocide in the former Yugoslavia and ordered by a federal court in New York to pay 22 survivors $4.5 billion in damages, none of which has been collected.

In April, U.S. District Judge Karon Bowdre in Birmingham denied a motion by Drummond to dismiss the suit it faces, in which plaintiffs are seeking more than $100 million in damages. The judge said that if the plaintiffs are able to prove their allegations, Drummond could be found to have violated ATCA.

Drummond was founded in 1935 by Heman Drummond as a one-man-and-a-mule operation. It spent six decades mining coal in Alabama. As reserves there dwindled, the company began operations in Colombia in 1995.

Led by Garry Drummond, one of Heman's five sons, the company found a 385-million-ton coal reserve near La Loma, 125 miles south of the Caribbean coast. The company says its vast open-pit mine produces 16 million tons of coal a year, accounting for about 60% of its $800 million in annual revenue. Drummond has 3,400 employees, about half of whom are in Colombia.

Doing business in Colombia has been risky because of the 39-year civil war between the government and leftist guerrillas. Both leftist and rightist groups have been accused of killing union leaders and other atrocities, and both sides have been denounced by the U.S. government and human-rights groups.

Over the last decade, right-wing paramilitaries have become a more-powerful force in the conflict. Growing out of groups of armed guards land owners hired to protect against guerrillas, they now come under a loose central command, the United Self-Defense Forces of Colombia.

The civil war has disrupted Drummond's operations in Colombia. A railroad that transports coal from La Loma to the northern port of Santa Marta has been bombed 40 times since 1995, probably by leftists, the company says.

The company, one of the biggest foreign investors in Colombia, has built barracks for the Colombian military at La Loma and near the port. More than 300 Colombian army troops are stationed at La Loma, where Drummond provides them subsidized food and fuel. The troops protect company facilities and screen employees, Drummond says.

The arrangement with the army is critical to the lawsuit. The union and relatives of the murdered activists say that regular army units routinely cooperate with paramilitary fighters, some of whom wear army uniforms and function at times as regular soldiers.

Juan Aquas, a former union official who worked at Drummond's port in Santa Marta, says in interviews that in 2000 and 2001, he saw paramilitary fighters eat in Drummond's cafeteria there and fill their vehicles at Drummond's gas tanks three or four times a week. He says these men wore army uniforms, but without the insignia indicating battalion membership. Mr. Aquas is now in hiding in Colombia.

FAR-FLUNG DOCKET: Selected pending Alien Tort Claims Act cases:


Unocal Myanmar Villagers That oil company is liable for forced labor, rape and torture of villagers by Myanmar military

Coca-Cola Colombia Trade union leaders That beverage corporation is liable for murders and torture of unionists by paramilitaries

Fresh Del Monte Produce Guatemala Former unionists That food company is liable for torture of unionists by Guatemalan vigilantes

Exxon Mobil Indonesia Villagers That oil company is liable for brutality against villagers by security forces

Chevron Nigeria Local communities That oil company is liable for violence against local communities by police

Sources: International Labor Rights Fund, Center for Constitutional Rights

A former Drummond mine worker who requests anonymity says in an interview that he saw paramilitary members enter the mine area in cars they filled at company gas tanks. These same men patrolled company property and the railroad to the port, the mine worker says. The accounts of other current and former Drummond workers are consistent with these.

Drummond says that it bars paramilitary forces from its facilities in Colombia.

Plaintiffs' lawyers say they are arranging for visas for Mr. Aquas and possibly other former workers to testify in court in Birmingham. Witnesses who have so far demanded anonymity, would have to step forward publicly if they want to testify in court.

Their accounts could be significant in light of a ruling in September 2002 by the U.S. Ninth Circuit Court of Appeals in San Francisco. In a separate ATCA case, the appeals court said that a U.S. company may be found liable for abuses abroad if it "aids or abets" offenders by providing "knowing practical assistance," such as money, fuel or logistical support. The ruling reinstated a suit accusing Unocal of responsibility for the rape and torture of villagers living near a company natural-gas pipeline in Myanmar. The abuse was allegedly committed by the Myanmar military, with which Unocal was working. Unocal has denied any liability for the abuse. It is appealing the Ninth Circuit ruling, which isn't binding on the court in Alabama.

Colombian mine-union officials say that the 1,700 Drummond jobs there are highly sought-after. Employees earn about $23,000 a year, five times the average Colombian worker's wages.

In the town of La Loma, a rough grid of muddy red-clay streets where pigs and dogs wander freely, Drummond has helped finance new housing for employees who work seven-day shifts at the mine. When the miners get three or four days off after a shift, Drummond provides chartered buses to take them two hours away to the town of Valledupar, where most of the miners' families live.

Drummond says it didn't oppose the union's formation in 1996. But union officials say the company has been hostile. At a company meeting in Birmingham in 1997, Drummond executives likened the union to the leftist guerrillas, and some advocated "getting rid of the union," the suit alleges. Union officials say their account of the meeting came from Drummond officials who attended. But it isn't clear whether those people will testify at a trial or what they will say.

Mr. Jeffress, the company lawyer, says there was no such meeting in 1997. Drummond hasn't considered trying to eliminate the union, he adds.

The plaintiffs say they have evidence of animus toward the union in Colombia. George Pierce, a former Drummond maintenance supervisor at the mine who is expected to testify at trial, says in an interview that company officials had a "hostile and combative attitude to the union" during his two years at La Loma, in 1999 and 2000. On several occasions, Mr. Pierce says, he heard Drummond managers equate the union with the guerrillas. (Union officials deny they are allied with the guerrillas.)

Referring to the murders in 2001, Mr. Pierce, says, "The company knew exactly who was leaving the mine and on which buses." He says he quit Drummond in 2000, before the murders, because he tired of Colombia. He now works for a trucking company in Wisconsin.

Mr. Jeffress calls Mr. Pierce's assertions "absolutely false" and points out that the ex-employee received poor performance reviews before he left the company.

Tension between Drummond and union leaders began rising in late 2000, according to the suit. As president of the union, Mr. Locarno filed grievances about the administration of drug and lie-detector tests to workers. Mr. Orcasita, a heavy-machine operator, was vice president of the union. In late 2000 and early 2001, co-workers say, the duo pressed Drummond to improve security and to compensate families of workers killed in a mining accident in 2000.

Around this time, Messrs. Locarno and Orcasita started getting phone calls at home, urging them to leave town or be killed, relatives and union officials say in interviews. Pamphlets appeared near the mine, attacking the pair as leftist-guerrilla supporters, union officials say.

Messrs. Locarno and Orcasita worked their last day at the mine on March 12, 2001. The Drummond-chartered bus they were riding home to Valledupar was stopped near a tollbooth, not far from the mine. That is where the paramilitary members boarded the vehicle.

Mr. Jeffress says Drummond didn't consider relations with the union particularly tense before the killings. Drummond was aware of the pamphlets at the mine but had nothing to do with them, he says. The company had compensated relatives of the workers killed in 2000 that same year, the company's Mr. Tracy says.

After the killings, working conditions and security at the mine improved, by all accounts. But union leaders say relations with the company continued to deteriorate. Mr. Aquas, the former port worker, says Augusto Jimenez, the president of Drummond Ltd., Drummond's Colombian subsidiary, told union officials a few weeks after the March killings, "The fish dies by the mouth." Mr. Aquas says he interpreted the remark as a threat to keep silent about the murders.

Mr. Jeffress says that Mr. Jimenez "does not recall ever using the phrase."

In August 2001, Mr. Soler, the replacement union leader, was quoted by the American magazine The Nation as saying that "some person at the mine" had assisted with the murders of Messrs. Locarno and Orcasita by giving paramilitary forces information about the men's travel plans. Mr. Soler was on a public bus headed to his home village of Chiriguana when he was killed in October of that year.

Mr. Jeffress calls all accusations that the company had anything to do with any of the killings "a malicious lie."

Mr. Tracy says Drummond no longer requires union leaders to work at the mine. Instead, the company flies the union leaders to La Loma when they are needed there. "We have a great relationship with the union and we're responsible corporate citizens," he says.