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COMPLAINT for (1) TORTURE ) UNDER the TVPA, (2) TORTURE Plaintiff, ) UNDER the ATS, (3) CRUEL, ) INHUMAN, OR DEGRADING V

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COMPLAINT for (1) TORTURE ) UNDER the TVPA, (2) TORTURE Plaintiff, ) UNDER the ATS, (3) CRUEL, ) INHUMAN, OR DEGRADING V Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 1 of 45 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) Civ. No. _________ GILBERTO EDGAR TORRES MARTÍNEZ ) Calle Rio Miño # 6 ) Madrid, Spain 28701 ) COMPLAINT FOR (1) TORTURE ) UNDER THE TVPA, (2) TORTURE Plaintiff, ) UNDER THE ATS, (3) CRUEL, ) INHUMAN, OR DEGRADING v. ) TREATMENT UNDER THE ATS; (4) ) PROLONGED ARBITRARY BP P.L.C. ) DETENTION UNDER THE ATS, 1 St. James’s Square AND (5) TORTS UNDER London SW1Y 4PD ) ) COLOMBIAN LAW. United Kingdom ) Defendant. ) DEMAND FOR JURY TRIAL ) ) COMPLAINT I. INTRODUCTION 1. Plaintiff Torres is the victim of grave mistreatment, including torture, at the hands of paramilitary forces linked to Defendant BP p.l.c. (“BP”). 2. Plaintiff Torres brings claims for torture; cruel, inhuman, or degrading treatment; and prolonged arbitrary detention under the Alien Tort Statute (“ATS”); a claim for torture under the Torture Victims Protection Act (“TVPA”); and tort claims under Colombian law. 3. In 1994, the Colombian state-owned oil company Ecopetrol S.A. (“Ecopetrol”), in conjunction with a BP subsidiary and four other multinational corporations, formed Oleoducto Central S.A. (“OCENSA”). In doing so, the corporations, including BP’s subsidiary, and Ecopetrol formed a joint venture to build and operate a pipeline in the Casanare region of Colombia and further oil production in the area. Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 2 of 45 4. BP’s wholly-owned subsidiary BP Exploration Company (“BPXC”) participated in the OCENSA joint venture and, as of August 2010, held approximately a 25% interest in OCENSA. 5. BPXC was not a passive shareholder. Rather, it was a project manager for the pipeline and managed the OCENSA project through crucial initial stages, including legal license applications and paying small sums to local peoples for use of their lands. BPXC was also heavily involved in arranging security along the pipeline. 6. Through BPXC, whose operations were based in the Colombian department of Casanare, BP exported crude oil via a pipeline that extends from Casanare to the Caribbean port of Coveñas. 7. BP sold BPXC in 2010 and it was renamed Equion Energía Limited. Around the time of its sale, BP described BPXC as “the wholly-owned BP subsidiary company that held BP’s oil and gas exploration, production and transportation interests in Colombia.” 8. The Casanare processing plant was extremely valuable and its operations nearly tripled previous oil production in Colombia. 9. The area along the OCENSA pipeline was one of the most savagely impacted by the armed conflict in Colombia, during which tens of thousands of unarmed civilians were murdered, most often by state security forces and paramilitary groups. 10. BPXC exports continued throughout the Colombian civil conflict and, as BPXC, BP continued to be responsible for approximately 40% of oil production in Colombia and is the fourth largest exporter of petroleum to the United States. BPXC pumped at least 300,000 barrels – millions of U.S. dollars’ worth of crude – per day through a politically volatile region. 11. In the course of the conflict, pipelines and other infrastructure were known targets of guerrilla groups, such as the Revolutionary Armed Forces of Colombia (“FARC”) and the 2 Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 3 of 45 National Liberation Army (“ELN”). 12. As the annual U.S. State Department Human Rights Report on Colombia for 2010 noted, the “46-year internal armed conflict continued between the government and terrorist organizations, particularly the [FARC] and the [ELN].” The Colombian National Army (“CNA”) has directly engaged these two groups in an extremely brutal and violent struggle that has left thousands of innocent civilians dead, displaced, and terrorized. 13. To protect its interests, BPXC paid the CNA and local police to provide security. 14. In the mid 1990s, BPXC signed a three-year collaborative agreement with the Colombian Defense Ministry under which BPXC agreed to provide over US$2 million in payments, in addition to the mandatory US$1 per barrel “war tax” imposed to finance army and police protection of oil facilities. In total, BPXC agreed to pay between US$54 and 60 million over three years for security protection. On information and belief, payments this large with obviously significant political and economic repercussions for BP, were approved by BP . 15. BPXC continued to provide support to the CNA for many years, including during the time period when Plaintiff Torres was kidnapped, detained, and tortured. 16. Paramilitary forces with a close relationship to the CNA kidnapped, detained, and tortured Plaintiff Torres. 17. In Casanare, the main Colombian paramilitary group, the Autodefensas Unidas de Colombia (“AUC”) was integrated into the CNA. Many of the AUC fighters who detained and tortured Plaintiff Torres wore CNA uniforms; were deferential to the CNA officer to whom they turned Plaintiff Torres over; and viewed Plaintiff Torres’ kidnapping, detention, and torture as assisting the CNA with its military objectives in Casanare. The AUC in Casanare accordingly was the equivalent of a division or unit of the CNA. 18. BP knew, should have known, and/or recklessly disregarded the probability that 3 Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 4 of 45 BPXC’s payments to the CNA were also being used to support AUC forces that operated in the areas around its facilities. 19. Just a few years before Plaintiff Torres’ kidnapping and torture, Human Rights Watch (“HRW”) wrote to BP about the organization’s concern about the company’s security agreements with the CNA. In an April, 17 1998 letter to BP’s then-CEO John Browne, HRW wrote that BP “has not taken adequate measures to address human rights violations allegedly committed by [Colombian] forces protecting the company’s interests and to prevent their recurrence.” HRW further wrote that BP “rel[ied] on the Colombian military, an institution with one of the worst human rights records in the hemisphere, to provide security.” 20. The HRW letter also discussed “the apparent intimidation of company critics by paramilitaries” and “the perception among many in Casanare that the company tolerates paramilitary activity.” 21. In a public report addressing the same issues, HRW wrote that it believes that BP has “duty to avoid complicity in human rights violations by state agents. The principle assignment of the brigades stationed in Arauca and Casanare is to rout guerrillas so that oil operations may continue unimpeded. Whatever the companies’ payment arrangement with the Colombian government, their reliance on the security forces for security gives rise to a moral responsibility for any abuses those units may carry out.” 22. Both the HRW letter and report discussed the CNA’s partnership with the paramilitaries. In one example, HRW described the killing of Andenar and Wilmer Garcia. After killing both men, the “heavily-armed individuals” who were in “civilian clothing” and with “covered heads or faces” radioed for assistance and were retrieved by a military helicopter. The killers addressed the uniformed man who arrived in the military helicopter as “my lieutenant.” Similarly, and as discussed in ¶ 169, the paramilitaries who were involved in Plaintiff Torres’ 4 Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 5 of 45 release addressed the CNA officer they met as “my Commander.” 23. Despite the very clear warning communicated to BP by HRW, the violent acts suffered by Plaintiff Torres occurred while BPXC continued to support the CNA and, through the CNA, the paramilitary forces who committed the violent acts. 24. BPXC’s conscious decision to continue to support the CNA is even more remarkable considering that its CEO, John Browne, admitted on June, 4 1998 that BP had made “mistakes” in the past in Colombia in the area of human rights. That admission came only one and a half months after HRW’s warning letter. 25. Browne stated that BP “made mistakes, but I don’t believe they were deliberate and we’ve learned from them.” 26. If BP had truly learned from its mistakes, Plaintiff Torres would not have suffered 42 days of detention and torture. II. JURISDICTION AND VENUE 27. The harms that Plaintiff Torres endured constitute, inter alia, torture; cruel, inhuman or degrading treatment; and prolonged arbitrary detention in contravention of the law of nations, and as such, are actionable under the ATS, 28 U.S.C. § 1350. The torture that Plaintiff Torres endured is also actionable under the TVPA, 28 U.S.C. § 1350. Accordingly, this Court has jurisdiction over the ATS and TVPA claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1350. Supplemental jurisdiction exists over the claims under Colombian law pursuant to 28 U.S.C. § 1367. This Court also has jurisdiction over all claims, including the Colombian claims, pursuant to 28 U.S.C. § 1332(a)(2). 28. Venue properly lies in this Judicial District pursuant to 28 U.S.C. § 1391 because BP is subject to personal jurisdiction in this District. 5 Case 1:12-cv-00308-BAH Document 1 Filed 02/24/12 Page 6 of 45 III. EXHAUSTION OF REMEDIES FOR TVPA CLAIMS 29. While in this Circuit the ATS has no exhaustion requirement, the TVPA has an express exhaustion requirement, and BP has the burden of raising and establishing lack of exhaustion as an affirmative defense. Plaintiff Torres meets his initial burden by articulating that he has no local remedies against BP in Colombia that are not futile. While there are administrative remedies that can be pursued against Colombian government officials, and there is a new program to provide government compensation for victims of AUC crimes, there is no civil action for damages Plaintiff Torres could bring against BP in Colombia.
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