The international labor movement is extremely concerned about the recent assassination attempt on Mr. Jose Onofre Esquivel Luna, a Nestle employee and Vice President of Colombian food-sector union SINALTRAINAL. This event occurred in Medellin at 7pm on Friday June 16th while Esquivel Luna was en route to a scheduled event to discuss the rights of workers at Nestlé and other multinationals. The event was cancelled due to the incident.
During the attack , Mr. Esquivel Luna’s bodyguards returned fire at the assassins, killing one and leaving the other injured, whom the authorities later arrested. However, according to union representatives the weapons used to fire against Esquivel Luna’s armoured vehicle went missing during the subsequent police investigation. His bodyguards (provided by the Colombian government’s National Protection Unit ) have since been accused of murder by the Prosecutor General’s Office, based on the allegation of unnecessary use of force.
Risk levels remain critical for the victim, his family, his bodyguards, their families and fellow union members who live in Medellin.
Mr. Esquival Luna is not the first Nestle employee to fall victim to anti-union violence. On November 9th, 2013 Nestlé employee Óscar López Triviño was murdered in Bugalagrande, Colombia. A matter of days before his death, whilst on hunger strike with other union members to protest against the company’s failure to comply with the union’s collective bargaining agreement, they received a threat instructing them ‘to leave Nestle alone or they would be cut into pieces.’ The European Centre for Constitutional and Human Rights (ECCHR) argue that this crime ‘clearly demonstrates the position of Nestlé toward its trade unionists has not changed.’ ( see here. )The human rights organisation claim that this murder was also preceded by defamations through the management of Nestle Colombia and suggest that Nestle has ‘not yet adopted an approach to dealing with its workers and trade unionists which does not present a danger to their lives.’(here.) In relation to the death of Mr. Trivino, Nestle stated “we expressed our deepest condolences and solidarity to Óscar López Triviño’s wife, family, friends and to his union, Sinaltrainal.” (see statement here.)
However Nestle’s statement does little to address the history of violent attacks against their employees. On 10th September 2005 Mr. Luciano Romero was murdered by paramilitaries in Valledupar, Colombia. A criminal complaint taken by human rights group, the ECCHR, in Swiss Jurisdiction, accused senior managers, as well as Nestlé itself, of negligently contributing to the murder. The ECCHR alleges that Nestle was informed about the threats made against Romero, but they failed to use the resources available to them to prevent the murder. (here.) It is also alleged, that company managers knew of company representatives who had close ties to right wing paramilitary groups, and also alleged that company managers referred to Mr. Romero as a “guerilla fighter” which one commentator describes as ‘being tantamount to a death sentence in Colombia.’ (see Global Research Article here.)
In what has been described as a rare occurrence, the perpetrators of Mr. Romero’s murder were arrested and convicted in 2007. Significantly in its judgement, the Colombian court called for a criminal investigation into the role of Nestlé subsidiary Cicolac. In 2009 Judge Sanchez, who heard the Romero case, reported to the US House Committee on Education and Labour stating ‘these crimes will not stop since the true perpetrators are not prosecuted’, referring to the ‘intellectual’ players, ‘those who order the executions and put up the money, who are most to blame for the continuing violence.’ ( see full statement here.) Despite significant indications of criminal liability, no such investigation has been carried out. ( reported here.) In Feb 2014, the confectionery company stated; ‘we have no responsibility whatsoever, directly or indirectly, neither by action nor omission for the murder of Luciano Romero.’ ( statement here.)
In a democratic society, the government must apply its full power to attain justice in such cases. PASO and its international allies call for fully comprehensive open investigations in the cases mentioned above, identifying the full spectrum of those involved including those who benefit from such an attack, whether they be individuals or private institutions.
Defamation of Trade Union Representatives and ‘Complicity’ Under International Law.
It is worth exploring the allegation of ‘defamation’ of trade union representatives further, and the consequences of defamation, which place the individual who has been defamed and other union members lives at risk, in a region torn apart by armed conflict for 50 years. The concept of complicity in the context of corporate responsibility under International law is also worth exploring, perhaps discussing the links in the legal sense between ‘defamation’ and ‘corporate complicity’ under the general theme of the subject matter at hand. If certain defamatory labels are ‘tantamount to a death sentence’ , corporations must be held responsible for the actions of its staff and representatives. The concept of corporate complicity has been developed to cover not only situations where a corporation knowingly assists in an illegal act, but also where it benefits from the abuses committed by others. However, benefiting from a crime is not a crime in and of itself generally speaking without an element of assistance.
The US Court of Appeals for the Ninth Circuit, in the case of Doe v Unocal, 395 F. 3d 932 (9th Cir. 2002) , stipulated that ‘the standard for aiding and abetting under the Alien Tort Claims Act (ATCA), ‘is knowing practical assistance or encouragements that has a substantial effect on the perpetration of the crime.’ The arrival of the Court at this criteria for ‘aiding and abetting’ was based not on national law but on International law. More specifically, the Court referred to previous decisions by the International Criminal Court and Tribunal for the former Yugoslavia and the International Criminal Court for Rwanda, which it noted ‘was especially helpful for ascertaining the current standard for aiding and abetting under international law as it pertains to ATCA’. The Unocal case was taken by a group of Burmese nationals, who alleged the Myanmar Military had subjected them to forced labour, rape and torture in connection with the construction of the Yadana gas pipeline project. In this case, the US Court of Appeals held that Unocal’s conduct, hiring the Myanmar Military, and providing photos, surveys and maps in daily meetings, met this standard. However, the case was later vacated, and settled, thus the judgement no longer stands, but is useful when discussing corporate complicity as it highlights the rationale of the Court.
The Unocal ruling gave an indication of the requirements needed to fulfil the material element of the term ‘practical assistance’. Professor Andrew Claphham sumarises; ‘The participation by the company need not actually cause the violation of international law, but the assistance or encouragement has to be such that without such participation, the violations would not have occurred in the same way.’ (see Clapham, pg 257) The defamation ingredient, in the current subject matter, which arguably instigates the crime, may fall under the rubric of ‘moral support which is an act of assistance’ and moral support substantially contributes to the commission of the crime, according to the jurisprudence of the International Criminal Court. (see The Prosecutor v Musema para 126.) Thus, defamation resulting in the subsequent targeting of individual Trade Union representatives in the Colombian political landscape, in full knowledge of the likely detrimental effects of such defamation’s, may fulfil the requirement of the term ‘encouragement’ and ‘reckless disregard’ , stipulated in Unocal and other national and International legal frameworks.
The legal term ‘reckless disregard’ is defined by Judge Rheinardt in his dissenting comment in Unocal. First, ‘under traditional civil law, a person who is under a duty to act in circumstances where there is an unjustifiable high risk of danger, which is known or should reasonably be known fails to act to prevent such danger.’ This is reckless disregard. Secondly, if a defendant consciously disregards the risks that arise from his decisions, and the present author asserts the premise; this reasoning should apply where Trade Unionist’s are named, defamed, targeted and subsequently murdered in a visible pattern. In cases of willful recklessness, Judge Reinhardt notes, ‘proof of willful recklessness does not require proof of intent, it requires only that a defendant has acted in conscious disregard of known dangers.( see Unocal here.)
According to the International panel of Jurists Expert Panel on Corporate Complicity in International Crimes, the term corporate complicity, in the context of work, business and human rights ‘is a useful tool to capture and explain the fact that Corporations can become involved in human rights abuses in a manner that incurs responsibility and blame.’( here ) Evidently, from the cases referred to above, and numerous other attacks, it is clear that a campaign exists which deliberately targets Nestlé Trade Union representatives, and such actions infringe State obligations under International law. The State must protect its citizens. It may also be said that such attacks are interferences with the right to freedom of association and therefore International Labour Standards, International Civil and Political Rights and International Economic Social and Cultural rights. Human rights are interdependent, inter-related and indivisible. Finally, it draws into question the subject of a Corporations ‘responsibility to respect’ international human rights law, raising the issue of corporate complicity under traditional civil and International Legal frameworks.
Written by John O’Shea.