Colombian Killings
Land U. S. Company
In American Court
Mining Concern Faces Suit Over Right-Wing Attacks;
New Life for a 1789 Act
Shootings on a Lonely Road
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by Pui-Wing Tam in Washington and Mare Lifsher in La Loma, Colombia
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One evening in March 2001, a bus carrying Valmore Locarno and Victor
Orcansita 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
knoched 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 lawssuit
against Drummond – not in Colombia, but in Birmingham, Ala. The suit
accuses the mining company, which is based in theat 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 Mobile 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 kon'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, torure and genocide. In recent uyears,
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 lecal 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 responsib ility of U. S. companies for foreign subsidearies.
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
Santo 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 whome 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 Crummond'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 withoug the insignia indicating
battalion membership. Mr. Aquas is now in hiding in Colombia.
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.
Teir accounts could be sinificant in light of a ruling in Septermer
2002 by the U. S. Ninth Circuit Court of Appeals in San Francisco. In a
seperate 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. Emplyees 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 oppost 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 evidenced 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 interview. 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 hi 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. Loler, 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. Loler was on a public bus headed to his home village of Chiraguana
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.
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