Power and Double Standards in the U.S. Legal System: The Cases of Coca-Cola and the FARC

2.11.06

Terry Gibbs
www.colombiajournal.org

What does the recent dismissal of the suit accusing Coca-Cola and its Colombian bottlers of complicity in human rights abuses have to do with the indictment in the United States of a Colombian guerrilla leader on charges of kidnapping, murder, drug trafficking and terrorism? At first glance, one may think very little. However, interesting legal and political questions emerge from the comparison of these two cases. For example, why, how and under what terms can groups—whether political such as the Revolutionary Armed Forces of Colombia (FARC) or economic such as Coca-Cola—be brought to account for their actions abroad through the U.S. legal system?

On October 3, U.S. District Judge Jose Martinez dismissed the now well-documented case against Atlanta-based Coca-Cola filed by the company’s Colombian union Sinaltrainal and several of its workers. The case was brought against Coca-Cola and its local bottlers in 2001 with claims that they collaborated with local paramilitary groups using threats, torture, intimidation and even murder to crush union activity at Colombian bottling plants.

In his ruling, Judge Martinez did not determine whether or not the company was guilty, but rather determined that he lacked jurisdiction in a case where the facts were unacceptably “vague.” The judge stated, “Demonstrating indirect liability for human rights abuses on the part of corporate entities is an inherently difficult task” and the judicial system must not be used for “unwarranted international fishing expeditions against corporate entities … to pursue political agendas.”

Meanwhile, in Washington, DC, another federal court case is under way against FARC leader Ricardo Palmera (aka Simón Trinidad), who is charged with murder, kidnapping, conspiracy and providing material support to a terrorist organization. Palmera, who was captured two years ago in Ecuador and extradited, first to Colombia, and then to the United States, also faces charges of drug trafficking.

In March of this year Palmera’s case became part of a broader U.S. government move to fight its war on terror through the channel of drug-related legal cases. In the largest indictment in U.S. history, U.S. Attorney General Alberto Gonzales announced drug charges against the top 50 leaders of the FARC arguing that the guerrilla group not only engages in taxing cocaine operations in the zones it controls but that it also operates laboratories and controls the marketing of the drug in these regions. These FARC leaders have been indicted even though the U.S. government lacks evidence directly linking many of them to drug trafficking activities. In other words, the rebels have been indicted solely because they are members of the FARC, which just happens to have spent the past 40 years trying to overthrow the government of a close U.S. ally.

U.S. attorney Paul Wolf, who has been following the Palmera trial, argues that the specific charges against the FARC leader do not hold up under legal scrutiny. Wolf notes that the first case against Palmera related to the crash—or shoot-down—of a surveillance plane operated by U.S. military defense contractor Northrop Grumman is particularly weak. One U.S. contractor was killed in a firefight at the crash site and three others were taken captive by the FARC, and are still being held by the group. According to Wolf, the prosecution is not even attempting to show that Palmera ordered the shoot down or that he was involved in the decision to take the contractors as prisoners. The prosecution is charging Trinidad with these crimes, not because he was involved in them, but simply because he is a relatively high-ranking member of the 18,000-strong FARC guerrilla group.

From a legal perspective, the prosecution’s position is seriously problematic. As Wolf notes, “The intent to commit one crime, such as rebellion against the government, cannot be substituted for the intent to commit another, nor can the commission of one crime be the basis of guilt for another crime requiring a different intent merely because the harm flowed from the first crime.” In other words, because Palmera was not involved in the killing and kidnapping of the U.S. contractors, he cannot be held criminally liable for these acts just because he is rebelling against the U.S.-backed Colombian government.

As Sergio Gómez, the Washington correspondent for Colombia’s largest daily, El Tiempo, recently pointed out, the Palmera case could set a troubling precedent in that any member of a group could be held criminally responsible under U.S. law for crimes committed by any other member of the same group. This precedent is certainly indicative of what Judge Martinez warned against when he dismissed the Coca-Cola case: using the courts to conduct “international fishing expeditions … to pursue political agendas.”

The U.S. war on terror is highly politicized with might, for the most part, making right. Consequently, Washington determines the definition of “criminal” in the global war on terror. But what if we were to generalize—or perhaps democratize—the U.S. government’s legal approach? For example, UN Secretary-General Kofi Annan declared the U.S. invasion of Iraq to be in violation of the UN charter and, therefore, illegal. Indeed, a majority of countries around the world consider the U.S. war in Iraq to be in violation of international law. Does this make the U.S. military a “criminal group”?

If so, couldn’t any one member of the U.S military hierarchy, including the Commander-in-Chief, be held criminally responsible for crimes committed by any other member of that institution. For example, couldn’t President George W. Bush or Secretary of Defense Donald Rumsfeld be brought to trial for the human rights abuses in Abu Ghraib and the massacres of Iraqi civilians perpetrated by U.S. forces? In contrast to the application of such legal logic in the Palmera case, it is only low ranking soldiers in the U.S. army that are being tried for the crimes in Iraq, there has been no attempt to bring their superiors to account.

Judge Martinez dismissed the claims against Coca-Cola because the evidence was “vague” and not sufficient to prove that the company was indirectly liable for the human rights abuses perpetrated against its Colombian workers. While the Coca-Cola case is clearly distinct from Palmera’s—for instance, it is a civil suit rather than a criminal case—the evidence against the FARC leader appears just as vague in its attempt to hold him indirectly liable for the murder and kidnapping of U.S. military contractors in Colombia.

Nevertheless, while the Coca-Cola case was dismissed because the evidence presented was not sufficient under our current legal framework, it appears that the equally vague case against Trinidad will proceed. The fact that one case is going ahead and the other is not probably has more to do with where power lies in the system than with legal validity.

Terry Gibbs is associate editor of Colombia Journal and an assistant professor in the Department of Political Science at Cape Breton University.

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