A case for accountability.

The Short VersionFrom Reuters In a closely watched ruling that left questions unanswered, the U.S. Supreme Court said on Wednesday (4/17/13) that federal courts do not have jurisdiction to hear lawsuits against foreign corporations accused of aiding in human rights abuses abroad. In one of the court's biggest human rights cases in years, the justices ruled unanimously that a federal court in New York could not hear claims made by 12 Nigerians who accused AngloDutch oil company Royal Dutch Shell Plc of complicity in a violent crackdown on protesters in Nigeria from 1992 to 1995. The ruling immediately sparked another debate, not least in concurring opinions written by justices in response to Chief Justice John Roberts' majority opinion, about exactly what claims can still be made under the Alien Tort Statute. The 1789 law had been dormant for nearly two centuries before lawyers began using it in the 1980s to bring international human rights cases in U.S. courts. What is clear is that the ruling is a major win for such non-U.S.-based multinational companies as Royal Dutch that do business in the developing world and become embroiled in local political controversies. Those companies, which are still subject to suit in foreign courts, fear U.S. courts because of the possibility of large damage awards.

The Detailed VersionBy @Kingmufasah The world has gone the way of the multinational corporation. Forming a corporation is a great way to avoid liability claims. Corporations provide a form of a legal shield that protects shareholders from the actions of the parent company. Furthermore a lot of countries have laws that provide that international corporations are not subject to suit under varied situations. Under the protection of this legal umbrella a lot of corporations now push the envelope of what is acceptable and what is illegal. In a lot of situations any line that demarcates such boundaries have since long disappeared. The United States Supreme Court issued an opinion this morning (4/17/13) that can only be chalked up as a big loss in the fight for civil rights around the world. Inversely its a big win for multinational corporations all over who dabble in violent local politics in portions of the developing world. Consider the case of Esther Kiobel. Esther Kiobel is the widow of Barinem Kiobel. She and other relatives of the executed Ogoni 9 brought another suit against Royal Dutch Shell for their

role in the execution of their fathers, husbands and brothers. Shell has consistently denied taking part in giving the go-ahead on any extra judicial killings in Nigerias oil rich region but something has to be said about the number of suits brought against them and the frequency in which these keep popping up.

Esther Kiobel stands alongside human rights activists outside of the US Supreme Court on Oct 1, 2012. Erica Razook

Here is a little history to get you caught up: Ken Saro-Wiwa was a Nigerian civil rights activist, environmentalist, playwright, and founder of Movement for the Survival of the Ogoni People.1

http://topics.nytimes.com/topics/reference/timestopics/people/s/ken_sarowiwa/index.html

He campaigned against the environmental damage done by oil companies in Nigerias Delta. Royal Dutch Shell Petroleum was and is still one of the major oil companies operating in the Delta. In 2008 Shell had an oil spill that gushed for weeks during which they had profits of over a few billion dollars. They offered 50 bags of rice, beans, sugar and tomatoes as relief for the disaster.2 Sani Abacha was an Army General who in 1993 led a military coup dtat and overthrew an interim civilian government to take power in Nigeria. Gen Abachas government was considered to be one of the most brutal governments in modern day on par with Iraqi leader Saddam Hussein. In what the international community considered trumped up charges Mr. Saro-Wiwa and eight others consisting of Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, John Kpuine were accused of killing four top Ogoni leaders. The media believed they were framed due to their opposition of Shell Petroleums involvement in the destruction of the Nigerian Delta region and the exploitation of the Ogoni people. Esther Kiobel wife of Barinem Kiobel (one of the accused) visited her husband in jail to bring him some food. She was stripped, beated and thrown in a cell herself. 3 Abacha argued that the activists must be executed swiftly to once and for all make it clear to Nigerians and the world the regime was not weakening. He convened a military tribunal to try the activists. Oct 31st 1995: A sham military tribunal headed by Justice Ibrahim Auta convicts and sentences Nigerian civil rights activist Ken Saro-Wiwa and eight others to death by hanging.

Auta at the tribunal in 1995

2 3

http://blog.amnestyusa.org/africa/shell-in-the-niger-delta-satellite-images-document-oil-spills/ http://blog.amnestyusa.org/africa/corporate-accountability-comes-before-the-u-s-supreme-court/

Ibrahim Auta-Chairman of Abacha's "Auta Kangaroo Tribunal"

Nov 10th 1995: Military dictator Sani Abacha executes Nigerian civil rights activist and international playwriter Ken Saro-Wiwa and the eight other supporters despite international pleas from Arch Bishop Desmond Tutu and then US President Bill Clinton.4,5 Mr. Saro-Wiwa is hung last. Body is then burned with acid and thrown into an unmarked grave.6 At time of conviction Justice Auta was a mid-level judge. He quickly rose to become Nigerias Chief Judge (Akin to Chief Justice of The Supreme Court in US). Lead prosecutor for the Military Joseph Dauda became chairman of the Nigerian Bar Association. Attorneys for Mr. Saro-Wiwa and company were forced to resign. The nine had no representation at time of trial. Following executions South African President Nelson Mandela pushed for a suspension of Nigeria from the United Nations until a democratic government is elected. British Prime Minister John Major reacted saying there is no way Nigeria can remain a member of the Commonwealth League of Nations following this atrocity. Nov 11th 1995: Nigeria is suspended from the Commonwealth, EU and US impose economic sanctions. Shell at the center of the unrest is accused of complicity in the killings. They continue their operations in the Nigerian Delta with multiple oil spills each year. Sept 2001: A New York district court grants relatives of Ken Saro-Wiwa and other executed activists the right to sue Shell. The suit brought by the Center for Constitutional

4 5

http://news.bbc.co.uk/onthisday/hi/dates/stories/november/10/newsid_2539000/2539561.stm http://premiumtimesng.com/news/113171-world-exclusive-inside-the-secret-abacha-memo-approvingexecution-of-ken-saro-wiwa-others.html 6 http://www.telegraph.co.uk/news/worldnews/africaandindianocean/niger/5413171/Shell-execs-accused-ofcollaboration-over-hanging-of-Nigerian-activist-Ken-Saro-Wiwa.html

Reform (CCR) suit alleges Shell fabricated evidence to support murder charges against Ken Saro-Wiwa. 2009. Mr. Brian Anderson, Shells top official in Nigeria and 15 other executives face civil trial for their alleged roles in using the Nigerian military government as instruments of brutally to oppress the Ogoni people. Attorney Jennie Green a lawyer for CCR offers We are not saying that Shell just did business in a bad place, Shell was an actor here. Shell wasnt just standing by.7 2009. Shell denies allegations despite testimonies stating otherwise and agrees to a $15.5 million out-of-court settlement in favor of the families of the victims just days before trial was to begin. Shell claims the payment was not a concession of guilt but a peace offering.8 CCR was to argue that there is a pattern of collaboration between Shell and the Nigerian Military government and that entire villages have been wiped out (the destruction of the Rumuekpe town). Owens Saro-Wiwa brother of Ken was prepared to tell court that in a desperate attempt to save his brothers life he met with Shell Nigeria executive Mr. Anderson three times before Ken was hung. Owens claims that Mr Anderson told him it would be difficult but not impossible to save his brother Kens life as long as the Ogoni ecological campaignt against Shell was called off.9 Mr Anderson told Owens "If you call off the campaign, maybe we can do something for your brother." Mr Anderson is also alleged to have required three demands met before he would make attempts to free Mr. Saro-Wiwa o A press statement published in local papers that there was no environmental devastation in Ogoni. o Call off the international protest against Shell and the Nigerian government. o Withdrawal of a Channel Four documentary, Drilling Fields. Owens Saro-Wiwa refused the offer. Mr Anderson broke off contact. Shell agreed the meetings took place but however disagreed as to their contents.

Esther Kiobel v. Royal Dutch Shell Petroleum. Bring up Kiobel in legal and civil rights circles the conversation immediately turns to corporate accountability. The primary question
7

http://www.telegraph.co.uk/news/worldnews/africaandindianocean/niger/5413171/Shell-execs-accused-ofcollaboration-over-hanging-of-Nigerian-activist-Ken-Saro-Wiwa.html 8 http://premiumtimesng.com/news/113171-world-exclusive-inside-the-secret-abacha-memo-approvingexecution-of-ken-saro-wiwa-others.html 9 http://www.telegraph.co.uk/news/worldnews/africaandindianocean/niger/5413171/Shell-execs-accused-ofcollaboration-over-hanging-of-Nigerian-activist-Ken-Saro-Wiwa.html

being whether corporations can be held civilly liable for international human rights violations under the US Alien Tort Statute (ATS). As US statues go the ATS is in-fact quite short. It reads, simply: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. In summary the law permits US district courts to try entities that are in violation of public international law or any treaties to which the US is a party. It thus extends the jurisdiction of the United States courts to tortious acts committed around the world. SCOTUS set the ground work in Filrtiga v. Pea-Irala. Applying the ATS the Court held that a Paraguayan official could be sued for the torture and murder of a Paraguayan in Paraguay. You would therefore not be dumb to think the same would apply here in Kiobel. On February 28th, 2012, the Supreme Court of the United States (SCOTUS) heard oral arguments of whether Shell could be held civilly liable for alleged human rights crimes under this statute. Kiobel v. Shell has all the elements that blockbuster movies are made of. Were talking about decades of deliberate pollution, extra-judicial killings, violent attacks on the people and environment in the Niger Delta region, a small-town wife and one of the largest oil firms on the planet. It would simply dwarf the movie Erin Brokovich. However before the merits of the case can be decided SCOTUS had to get to whether US district courts have the right to have Shell as a defendant in their courtrooms under this statute. In a surprising opinion coming down today April 17th, 2013, SCOTUS has now decided US district courts do not have jurisdiction over Shell in this manner in this particular instance practically throwing Filartiga out the window and shutting the door on what is the last shot at justice for a lot of parties who have been violently aggrieved by international corporations. The big get bigger and apparently get more protection than the rest of us.

This mornings ruling guts the ATS of any bite it once had. The opinion written by Chief Justice John Roberts concludes that the presumption against extraterritoriality applies to claims brought under the ATS and that nothing in the statue rebuts that presumption.10 In short there is a
10

http://www.lawfareblog.com/2013/04/breaking-scotus-decides-kiobel-affirms-ca2/

presumption that foreign parties are free from the jurisdiction of US courts unless otherwise proven. Basically All nine Justices agreed with the final outcome but only four agreed with the reasoning of their Chief Justice. A separate opinion was written by Justice Stephen Breyer in which he was joined by three other Justices. Roberts opines that to bring Kiobel v Shell under the statute would be to stretch its reach into arenas that the wording of the statute did not contemplate. He reasons that for actions to fit within the boundaries of this statute they must have sufficient force to displace the presumption against extraterritorial application. Oral arguments in 2012 seemed a harbinger of things to come. Justice Alito asked: What business does a case [like this] have in the courts of the United States? Theres no connection to the United States whatsoever. Even back then the Justices were concerned with extraterritoriality and it proved to be the principle factor in the ruling. Another major issue which Justice Sotomayor was brought up was that the plaintiffs might have other avenues for relief within Nigeria. I dont see how they would have a chance of justice in Nigeria if the actual atrocities were permitted to happen there and were in fact encouraged to happen. It appears the Justice did not do her homework on the politics of the locale in question. Shell is legally anchored in the United Kingdom and the Netherlands and I guess in that manner they are extra-territorial but is Shell that far removed from the United States for it to be deemed extra-territorial and thus not under the statute and therefore free from suit in this manner?onl Shells US subsidiary is one of its largest with approximatel y 22,000 employees. Shell also has numerous consolidated holdings in the US and maintains a vast share in equity companies incorporated in the US. Not forgetting the 25, 000 gas stations in the US. Without a doubt Shell has conclusive ties and operations in the US that bring it under the statute. Surely for the Court to say Shell is outside the legal reach of the ATS is confounding especially where they have concluded that entities with less ties can be brought to justice under the arm of this statute. This ruling has huge implications. It now means that human rights abusers can now travel freely and shelter their assets in the U.S. Deposed dictators like Ferdinand Marcos and brutal generals like Mohamed Ali Samantar, who presided over human rights abuses in Somalia would be allowed safe haven.11 The stakes are extremely high because the ATS is the only avenue for most human rights victims to hold perpetrators accountable. In the home countries of many victims, there is no legal forum available to seek justice. The Supreme Court has now removed that one last resort. Conspiracy theorists are going to have a field day with this one. It is a sad day for justice.

11

http://cja.org/article.php?id=1093