On Sept. 27, a U.S. federal court in Florida granted our clients’ motion for summary judgment in Jaramillo v. Jimenez Naranjo, holding former Colombian paramilitary leader Carlos Mario Jiménez Naranjo, aka “Macaco,” civilly liable under the Torture Victim Protection Act (TVPA) for the extrajudicial killing of Eduardo Estrada, a beloved community leader in the Middle Magdalena region of Colombia. The decision marked the first time a U.S. court ruled in favor of victims of Colombian paramilitary violence and acknowledged the “symbiotic relationship” between the paramilitaries and Colombian state actors under the TVPA – a significant development in its own right, and one that potentially opens the door for other victims of state-paramilitary collaborations to seek justice in U.S. courts.
The TVPA’s Foreign Color of Law Requirement
Passed in 1991 and signed into law by President George H.W. Bush in 1992, the TVPA gives rights to U.S. citizens and non-citizens alike to bring civil claims for torture and extrajudicial killing committed “under actual or apparent authority, or color of law, of any foreign nation[.]”
The TVPA’s “color of law” language finds its origin in the Convention Against Torture, whose Article 1 definition requires that the underlying act of torture be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” While the involvement of a foreign state actor, such as a military or elected official, clearly satisfies the requirement, courts have also had to address whether the TVPA applies to crimes committed by paramilitary groups, which often operate outside the formal structure of state security forces, albeit with their acquiescence and, at times, overt support. Drawing on principles of agency law and federal civil rights jurisprudence, courts have found that the requirement is satisfied only where private actors, like paramilitaries, are in a “symbiotic relationship” with state actors that involves the torture or extrajudicial killing alleged in the complaint.
Litigating the TVPA’s Application to Colombian Paramilitary Violence
Much of the foreign color of law jurisprudence regarding private actors – including, of course, this most recent case – has emerged from litigation seeking accountability for torture and extrajudicial killing carried out by paramilitaries in Colombia. In this context, the TVPA’s foreign color of law jurisprudence has, until recently, served as an obstacle to plaintiffs’ legal recovery – one that barred victims of Colombian paramilitary violence from pursuing otherwise valid claims in U.S. courts. For example, in Romero v. Drummond Co., the Eleventh Circuit upheld a lower court’s finding of insufficient evidence of a symbiotic relationship between Colombian paramilitaries and the corporate defendant. Likewise, in Sinaltrainal v. Coca-Cola Co., the Eleventh Circuit again found that the plaintiffs had pled insufficient facts to allege state action by Colombian paramilitaries. This string of authority was particularly frustrating – especially for the victims – given that United Nations bodies, the Inter-American Court of Human Rights, the International Criminal Court, international and Colombian human rights organizations, and U.S. government actors, among others, have long acknowledged the reality of state-paramilitary collusion in violence in Colombia.
The court’s recent decision in Jaramillo v. Jimenez Naranjo marked a turning point. The decision came after more than a decade of litigation led by pro bono co-counsel the Center for Justice and Accountability (CJA) and Wilson Sonsini Goodrich & Rosati in partnership with local partner the Colombian Commission of Jurists. Relying on more than one thousand pages of evidence, including statements by Macaco, admissions by former paramilitary members in depositions, expert reports, and eyewitness testimony, the court found that the Bloque Central Bolívar (BCB), the paramilitary group headed by Macaco, targeted over 1,300 civilians – including Eduardo Estrada – for execution between 2000 and 2005.
The court also addressed the foreign color of law requirement. In an apparent first, the district court found no genuine dispute of material of fact on the issue, concluding that there was “an abundance of evidence in this record that the BCB [paramilitaries] operated in a symbiotic relationship with Colombian state actors.” Indeed, the evidence we presented demonstrated that the paramilitaries, and their criminal activities, were a central component of Colombia’s strategy to combat its guerrilla insurgency in the late 1990s and early 2000s. State security forces were complicit in the BCB’s violence, including by routinely providing the BCB with information to identify and kill perceived guerilla sympathizers within the civilian population and supporting their operations through intelligence sharing, as well as the provision of weapons and military uniforms.
This ruling will have impact beyond the current case. First, Colombian civil society groups, including the Comisión Intereclesial de Justicia y Paz, have cited the decision as further proof of the relationship between paramilitaries and state actors. Second, a small number of other important TVPA actions seeking accountability for paramilitary atrocities in Colombia remain before U.S. courts, including litigation brought by EarthRights International, International Rights Advocates, and other co-counsel in In Re: Chiquita Brands Int’l, Inc., Alien Tort Statute and S’holders Derivative Litig. and Penaloza v. Drummond Co. Hopefully, ours becomes the first in a string of U.S. judicial decisions to finally acknowledge the reality of paramilitary-state actor entwinement in the commission of human rights abuses in Colombia – and potentially to bring justice to victims of human rights abuses committed by similar state-private actor entanglement around the world.
Victims of Extrajudicial Killings and Torture Deserve Broader Access to Remedies
The foregoing raises a broader question regarding the TVPA: why allow victims of torture and extrajudicial killing to pursue accountability against perpetrators who are otherwise subject to the jurisdiction over U.S. courts solely when those perpetrators acted “under color of foreign law”? In other words, why bar victims of torture by non-state perpetrators (or victims of torture under color of U.S. law) from seeking justice in U.S. courts?
As noted, the TVPA’s definition of torture, including its foreign color of law requirement, is derived from the language of the Convention Against Torture, which governs the rights and responsibilities of the state parties to that international treaty. While the necessity of state action appears appropriate within the context of an international treaty between states, the requirement feels extraneous as regards a victim’s civil right of action against their individual perpetrator.
As a threshold matter, the foreign portion of the requirement forecloses holding any U.S. actors civilly accountable under the TVPA for torture and extrajudicial killings. Further, the TVPA’s state actor requirement deprives victims of civil remedies against individuals operating outside a state-sanctioned context. Thus, as it stands, the TVPA does not permit suits against actors belonging to insurgent groups embattled with a state, including those that have been universally recognized as having engaged in widespread atrocities, such as Al-Qaeda, the Islamic State of Iraq and the Levant, or the Lord’s Resistance Army, even if the perpetrators are present on U.S. soil.
Nor can victims of extrajudicial killings or torture committed by non-state actors typically turn to other civil statutes to seek redress. The Alien Tort Statute (ATS), which for decades permitted aliens to bring claims for extraterritorial atrocities, including against non-state actors, was significantly curtailed in the wake of a string of U.S. Supreme Court decisions starting with Kiobel in 2013, which necessitated that the claims “touch and concern the territory of the United States.”
As a result of these gaps and barriers, calls are growing to permit broader access to remedies for victims of torture and extrajudicial killing regardless of whether the perpetrators were foreign state actors. In July 2019, Professor Beth Van Schaack testified before the Tom Lantos Committee and noted the benefits of removing the color of law requirement, a proposal she later reiterated in a post on this site. More recently, in August 2021, the American Bar Association adopted a resolution calling on Congress to amend the TVPA by removing the color of law requirement. Alternatively, as CJA Executive Director Carmen Cheung recommended in her July 18, 2021 Congressional testimony, Congress could amend the ATS, which does not have a state actor requirement, to make its extraterritorial application explicit.
Regardless of the solution, victims of torture and extrajudicial killing deserve broader access to remedies against perpetrators who are otherwise subject to the jurisdiction of U.S. courts irrespective of their status as state actors.