As explained in a previous article, the recent Chiquita trial has once again shed some light on the complexities of holding corporations accountable for their involvement in human rights abuses, particularly in conflict zones and transitional justice contexts. While the trial itself gained significant attention due to its landmark verdict, the issues it raises are part of a broader, global, and highly technical challenge: proving corporate complicity in contexts of armed conflict and rampant human rights violations through expert testimonies in legal proceedings. Such cases highlight the difficult task of establishing causal links between corporate actions and the atrocities committed, a challenge that resonates beyond the courtroom. After all, it took 17 years, several expert reports, and hundreds of motions to get Chiquita to a courtroom.
In cases where corporations are accused of direct or indirect complicity in violence and crime in conflict settings, including funding or enabling aiding and abetting violence through financial support to armed groups, expert testimonies often become the battleground on which cases are won or lost. This was on full display in the Chiquita trial, where the jury heard from a diverse array of witnesses, including company executives, former paramilitary leaders, academic experts, analysts, and retired military personnel. These testimonies, as well as multiple reports filed by some of these experts, underscored how deeply contested the narratives of responsibility can be, the critical role of experts in shaping legal outcomes, and the impact their narratives can have in transitional justice.
Across the globe, similar trials are grappling with how to establish corporate liability in complex contexts effectively, the issue of causation. In these cases, experts provide analysis that attempts to connect the dots between case elements with financial transactions, corporate decisions, social and political contexts, and the actions of violent actors, amongst many other issues. However, this process is challenging when it comes to proving a direct causal link – a necessary element in securing a verdict of liability.
In the case of the Chiquita trial, plaintiffs had to show by a “preponderance of the evidence”a clear link between the company’s actions, their relationship with armed groups, and the ultimate outcome: the deaths of innocent civilians. The defense, on the other hand, had to show that the assistance provided to armed groups resulted from an immediate threat of serious harm or that they had no other reasonable alternative, which Chiquita failed to do. The jury also decided that Chiquita’s actions constituted a hazardous activity that increased the risk to the community. To support these claims, the legal teams brought in mountains of evidence from multiple sources, including internal company documents, witness testimonies, documents from legal proceedings, including transitional justice mechanisms, records from NGOs and several other institutions, and more. The impressive number of boxes containing thousands of documents also shows the importance of documentation. But all of this needs a precise analysis that must be translated into a comprehensive document and narrative and communicated effectively to the jury, and that’s where expert witnesses come in.
Causality versus duress
A key issue that emerged in the Chiquita trial and is common in similar cases worldwide is the difficulty of proving that a company's contributions to armed groups fueled specific acts of violence. Corporations often argue that their actions were a necessary cost of doing business in volatile regions, framing themselves as victims of extortion rather than active participants in conflict with full knowledge of the situation. This defense strategy complicates efforts to hold corporations accountable.
For example, during the Chiquita trial, the plaintiffs’ experts, including Michael Evans from the American NGO National Security Archive and Oliver Kaplan from the University of Denver, extensively analysed Chiquita’s payments to the United Self-Defense Forces of Colombia (AUC, a paramilitary organisation) and the violence in the affected regions. Their testimonies included summaries of thousands of documents, database analyses, and contextual presentations of the conflict. For years, the plaintiffs worked to establish the links between corporate conduct and the violence suffered by the victims. This complex task demanded meticulous accounting of payments, documentation of Chiquita shipments used to transport weapons for the AUC, and testimonies from multiple witnesses, including former paramilitary members who benefited from or observed these transactions. Their testimonies aimed to demonstrate that Chiquita failed to act as a reasonable person under the circumstances and that they knowingly provided substantial assistance to paramilitary armed groups, which created a foreseeable risk of harm to others (this was the standard applicable to aiding and abetting under Florida law and Federal Common Law). To comply with these standards and effectively show causation, context and a clear identification of modus operandi by different armed actors is everything.
In contrast, Chiquita’s defense of historical revisionism called upon figures like professor Jorge Restrepo and retired Colombian military generals. Restrepo, a co-founder of the Centro de Recursos para el Análisis de Conflictos (Cerac), argued that statistical analysis showed decreased paramilitary violence in the banana-growing regions and disputed the correlation between Chiquita’s payments and violence. The retired generals characterized the violence as a result of narcoterrorism rather than corporate complicity, painting a picture of a chaotic conflict driven solely by drug cartels rather than direct corporate involvement. They argued that in the regions where Chiquita operated, there was no statistical support to infer that their financial aid led to more violence in the areas they operated. Their accounts tried to make the case that Chiquita financed paramilitary forces under duress and that support cannot be linked to any of the killings that were brought to Court simply because Chiquita was innocently caught in the middle of a war between warlords.
Conflict of interest
The part played by professor Restrepo and other experts contracted by Chiquita for its defense has caused quite a stir in Colombia, raising concerns about the conflict of interest of academics and opinion leaders when they act as expert witnesses paid by the defense within foreign trials, while being regarded as reputable analysts of the armed conflict and transitional justice at the domestic level.
In any case, these accounts were explicitly rebuked in domestic transitional tribunals (justice and peace tribunals) and by Colombia’s Truth Commission Final Report. For instance, among the Truth Commission’s testimonies, there is a confession of a banana trader from the region of Urabá acknowledging their participation in various massacres at that time.
This case mirrors a global trend where corporate defendants employ expert witnesses to make the case for duress and contest any causal link with grave human rights violations. According to the Inter-American Commission for Human Rights, defendants rely on the idea that in counter-corporate litigation, a high threshold is demanded of victims and that expert opinions entail high costs that usually cannot be covered by them.
The challenges of proving causality in corporate human rights cases have significant implications for transitional justice processes. Transitional justice aims to address the legacies of human rights violations and build frameworks for truth, justice, reparation, reconciliation, and guarantees of non-repetition. However, when it comes to the role of corporations, these processes often struggle with the evidentiary burdens required to hold companies accountable, mainly when corporate actions are indirectly linked to violence or when corporate actors are multinationals incorporated in a different jurisdiction and outside the scope of traditional, transitional justice mechanisms.
The bridge that puts the pieces together
This dynamic fragments the holistic approach of transitional justice by complicating corporate accountability. On one hand, it disrupts the effort to hold all actors, both directly and indirectly involved in conflict-related atrocities, fully accountable. On the other hand, it hinders the pursuit of comprehensive reparations, often limiting justice to financial compensation granted in foreign courts, rather than addressing the broader needs for truth, reconciliation, and meaningful reparation in affected communities. Despite evidence of a “corporate turn” in transitional justice where corporate actors know they cannot prevent legal action, de facto impunity persists through procedural and evidentiary maneuvers that they deploy in judicial scenarios, as detailed by Pereira, Payne, and Bernal.
The struggle is not unique to the Chiquita case. Similar issues arise in cases involving war crimes and human rights violations by companies in Africa, the Middle East, and Latin America, where complex local power dynamics and violent conflicts create a murky picture of responsibility. In these contexts, transitional justice mechanisms, such as ad-hoc tribunals, truth commissions or reparations programs, frequently face hurdles in addressing corporate complicity due to the difficulty of obtaining concrete evidence and achieve the participation of companies in such frameworks.
Moreover, the global nature of corporate operations often means that accountability efforts must navigate multiple legal jurisdictions, varying legal standards of proof, and differing levels of willingness among states to comply with discovery requests and pursue justice against powerful economic actors. Expert witnesses act as the bridge that puts the pieces together. They shape a narrative about contexts of violence that are usually beyond the expertise of judges and juries. In corporate liability litigation, their testimony carries a great deal of weight as many other sources of evidence are often restricted, partly because of the data protection that covers companies.
How to strengthen the efficacy of expert testimonies
Given these challenges, the role of expert testimonies in corporate accountability cases cannot be overstated. However, for expert testimony to be compelling, it must be supported by robust data, transparent methodologies, and an excellent background record backed by years of work in the relevant field. It is a challenging task to identify and retain such experts.
Many of these experts are already employed by the private sector, and often, the issue of conflict of interest creates a complex scenario. In the case of Chiquita, media reports showed how the company had a long-standing business relationship with a risk analysis consultancy that eventually produced a report on the situation of violence in its areas of operations that discredited its involvement in the massacres and paramilitary violence it financed. This business relationship was not questioned during the trial.
To improve the effectiveness of expert testimonies in corporate accountability cases, it is crucial to establish more rigorous standards. Collaboration between legal practitioners, academics, and human rights organizations is key to developing standardized methods for analyzing corporate involvement in conflict, ensuring access to critical data, and creating interdisciplinary research networks. Philanthropic support is also vital to help level the playing field, given the significant power imbalances in these cases. Neutral and independent experts must be prioritized to ensure integrity and credibility, avoiding conflicts of interest that can undermine justice.
The lessons from the Chiquita trial and similar cases worldwide underscore the importance of expert analysis in unraveling complex narratives of responsibility that consider the ultimate goals of transitional justice and peacebuilding in the regions where companies involved in atrocious crimes operate.
Tatiana Devia is an attorney and legal consultant. She is the founder of the Justice Horizon Initiative, which reimagines transitional justice and addresses the impacts of armed conflict on human and environmental rights. She is also an adjunct professor at Florida Gulf Coast University’s Criminal Justice Department.
Daniel Marín López is an independent researcher on the relationship between business and human rights violations in armed conflict. He is a co-creator at Enramada, a collective that creates spaces to address silenced issues, challenging power and driving social change. He is also a Transdisciplinary PhD Researcher at the National University of Colombia.
