PLAN COLOMBIA: MORTAL USE OF PESTICIDE

Private Security Company Negligence in Carrying out “Plan Colombia” to eradicate cocaine and heroin plants

As part of the United States and Colombian “Plan Colombia,” Dyncorp contracted with the United States to exterminate cocaine plantations and heroin poppies in Colombia. Various Ecuadorian communities on the border alleged that Dyncorp recklessly sprayed herbicide outside of the targeted areas in Colombia, causing health and crop issues within their communities. Over 2,000 Ecuadorians sued Dyncorp in the United States; the lawsuit survived several challenges and Dyncorp was found responsible for the injuries, but the Ecuadorians received no pay-out as the harm could not be traced to any specific individuals employed by the contractor.

Keywords: poor training

Background

In 1999, the Colombian government, with the support of the United States, initiated Plan Colombia. This program aimed to help the Colombian National Police with the capacity to eradicate certain substances, particularly heroin and cocaine plants, more effectively. The two governments have relied on aerial fumigations of pesticides to eradicate these plants.

Fumigations have affected Ecuadorian territory since Plan Colombia was initiated; this border area between Ecuador and Colombia is inhabited mostly by impoverished indigenous inhabitants.

DynCorp International is a global private military, security, intelligence, and aviation company. Prior to the lawsuit, Dyncorp entered into a contract with agencies of the United States to exterminate cocaine plantations and heroin poppies in the Colombian rainforest.

Outside of the DynCorp lawsuit, Colombia ended the spraying of pesticides in 2015, citing concerns of a cancer link to glyphosate, a key ingredient in the pesticide. Colombia agreed to pay Ecuador $15 million in 2013 to resolve allegations at the International Court of Justice.

The Incident

In September 2001, a group of Ecuadorian farmers filed a class-action lawsuit in the United States against Dyncorp, a contractor hired by the United States and Colombian governments to spray coca and poppy plants with herbicide. The plaintiffs, including farmers and their families, alleged that Dyncorp sprayed the herbicide in a reckless manner, causing health problems and the destruction of food crops. The plaintiffs also alleged that the toxicity of the herbicide caused the deaths of four infants in the region.

Legal Aspects

Court cases

In September 2001, over 2,000 Ecuadorian plaintiffs filed a lawsuit against Dyncorp in the U.S. District Court for the District of Columbia. At that time, the plaintiffs filed the lawsuit under the Alien Tort Claims Act, the Torture Victim Protection Act, and various other state law claims. Under the ATCA, the plaintiffs alleged that the aerial spraying of a toxic fumigant amounted to torture and cultural genocide.

The plaintiffs did not file the lawsuit in Ecuador, stating they would not have access to “full and complete judicial relief” if they filed suit in Ecuador, because most evidence, witnesses, and Dyncorp´s assets were located in the United States.

Dyncorp moved to dismiss the case, arguing that the lawsuit raised “non justiciable” questions of foreign and national security policy, and that Dyncorp’s actions were expressly authorised by Congress. The court rejected Dyncorp’s contentions and did not dismiss the lawsuit.

In 2009, by request of the plaintiffs, the court issued an order compelling the production of documents showing Dyncorp´s non-spray flight line, but Dyncorp appealed on security grounds. The court dismissed Dyncorp’s request in 2012, but in 2013, the court dismissed the case, finding that there was not enough evidence to prove the injuries claimed by the plaintiffs.

The plaintiffs achieved a partial reversal, with 20 selected test plaintiffs permitted to proceed to trial as to the issues of battery, nuisance, and emotional distress.

In April 2017, Quinteros v. Dyncorp went to trial. The same month, the jury found Dyncorp legally responsible for subcontractors who carried out chemical spraying in Colombia. The jury did not find Dyncorp responsible for the employees of Colombian law enforcement, only the subcontractor’s pilots. However, the jury rejected damages payout to the plaintiffs.

The International Code of Conduct

The International Code of Conduct requires that Member and Affiliate Companies treat humanely and respect the rights of persons they come into contact with, including the right against arbitrary or unlawful interference with privacy (paragraph 28).

The Code requires stringent selection and vetting of personnel, assessment of performance and duties (paragraphs 45 to 49), and training of personnel of the Code and relevant international law, including human rights and international criminal law (paragraph 55). Meeting the requirements of the Code of Conduct, can help private security companies and their clients ensure that private security personnel are qualified, trained, supported, informed, and responsible.

Paragraph 63 of the Code prescribes that member and affiliate companies prepare an incident report documenting any incident involving its personnel that involves damage to equipment or injury to persons and conduct an internal inquiry.

The Code requires that Member and Affiliate Companies ensure that they have sufficient financial capacity in place at all times to meet reasonably anticipated commercial liabilities for damages to any person in respect of personal injury, death or damage to property (paragraph 69).

Meeting the requirements of the Code of Conduct can help private security companies and their clients ensure that private security personnel are qualified, trained, supported, informed, and responsible.

Discussion

How can vetting and training prevent a private security company from causing unintended harm?

What else can a private security company do to prevent causing unintended harm?

Related incidents

Sources

Case prepared by Madison Zeeman

Clause de non-responsabilité

Conformément à l’avis de non-responsabilité figurant sur la page d’accueil, ni l’Association Internationale du Code de Conduite ni les auteurs ne peuvent être identifiés avec les opinions exprimées dans le texte ou les sources incluses dans « Plaider en Faveur d’une Sécurité Responsable : Carte de Cas du Code de Conduite International ».