wiwa v shell
22 May 2009
Shell On Trial
Next week, Shell will appear before a US federal court on charges of torture, extra-judicial killing and crimes against humanity. Will it be the first multinational found guilty of human rights abuses?
Just after sunrise on 10 November 1995, internationally renowned writer and activist Ken Saro-Wiwa was taken in leg irons to a hastily prepared gallows in the yard of a small jail in Port Harcourt in Nigeria. It took five attempts to hang him. "Lord take my soul," he said finally, "but the struggle continues." His body was then doused with acid and buried in an unmarked grave, along with eight of his colleagues.Saro-Wiwa, a native of the Niger Delta, was five years into his campaign against Shell when he was executed. As the founding leader of the Movement for the Survival of the Ogoni People (MOSOP), he had brought international attention to Shell's environmental destruction and human rights abuses in Ogoniland, a thousand-square kilometre area in the Delta.
It was in Ogoniland that Shell first discovered Nigerian oil in 1956. When Saro-Wiwa addressed the United Nations in 1993, Shell had extracted US$100 billion worth of oil and gas from Ogoniland alone. Despite promises of community building from Shell, the Ogoni people were living in abject poverty.
Saro-Wiwa had already been detained several times before his final arrest, but when soldiers pulled him from his bed on that Sunday morning in May 1994, he knew this time was different.
"This is it," Saro-Wiwa had said, a month prior. "They are going to arrest us all and execute us. All for Shell."
Saro-Wiwa had obtained a leaked memo issued by the head of the Rivers State Internal Security Force of the Nigerian Army. It detailed an intensified military presence in Ogoniland, with explicit instructions to make sure that those "carrying out business ventures ... within Ogoniland are not molested". A new law would enforce the death penalty for those found guilty of involvement in any communal clashes.
Saro-Wiwa didn't see the memo that was sent in reply. By the end of January 1994, the eight major oil companies had calculated their losses during 1993 at US$200 million, citing "unfavourable conditions in the areas of operation". They called for urgent measures to combat the situation.
On 12 May, 10 days before his (and eight fellow MOSOP leaders') arrest, a second memo was sent from Lieutenant Colonel Okuntimo, who orchestrated the Mobile Police Force's terror campaign. "Shell operations still impossible unless ruthless military operations are undertaken for smooth economic activities to commence," it said.
Its recommendations included "wasting targets cutting across communities and leadership cadres, especially vocal individuals in various groups". To finance this, oil companies were to be pressured for "regular imputs, as discussed". (Emphasis added)
Eighteen months later, just before he was sentenced to death, Ken Saro-Wiwa wrote a statement he was not permitted to read to the military tribunal that tried him. "I and my colleagues are not the only ones on trial," he wrote. "Shell is here on trial ... There is no doubt in my mind that the crimes of the Company's dirty war against the Ogoni people will be punished."
Now, he will posthomously have his day in court. Twelve years after the case was first filed, Wiwa v Shell is finally going to be heard before a US federal court in Manhattan. The plaintiffs, which include both the Wiwa family and several other Ogoni people, are charging not only Shell but Brian Anderson, its former managing director in Nigeria, with:
Conspiring with the Nigerian military to prosecute, and finally execute, Saro-Wiwa and his eight colleagues.
Arming, financing and transporting the Nigerian military, which used brutal force to repress opposition to Shell's operations in Ogoniland that resulted in 2000 Ogoni being killed, some 30,000 made homeless, and countless others being tortured and raped.
And the wanton destruction of villages throughout the Ogoni region, where over 3000 oil spills have occurred and gas flares are located on private property.
But this is a Nigerian case involving a Dutch corporation. How can it be tried in America?
It was filed under the Alien Tort Statute (1789), which enables non-US citizens to file suits in US courts for human rights violations, and the Torture Victim Protection Act, which allows individuals to seek damages in the US for torture or extrajudicial killing, no matter where it occurred.
And unlike countless other corporate civil suits which hold a faceless, impersonal corporation accountable, Wiwa v Shell isn't just charging Shell — it also attempts to hold Brian Anderson, former managing director of Shell in Nigeria, personally liable. You don't have to be caught with the noose in your hand to be found guilty, just proved to be aiding and abetting.
A multinational company has never been found liable of human rights abuses by a US jury. The Shell case, which could result in hundreds of millions of dollars in damages, is the third to go to trial and the second involving a major oil company.
There's a reason there has been no conviction of this kind recorded in the past. Corporations, notoriously bad at keeping records on their human rights abuses, have always stayed one step removed from the gun. That step might be a military dictatorship, for example — that is to say that if a government defends its interest with a heavy hand, it's not the corporation's fault.
"Shell attempted to persuade [the Nigerian] government to grant clemency [to Saro-Wiwa]; to our deep regret, that appeal — and the appeals of many others — went unheard, and we were shocked and saddened when we heard the news," said a Shell spokesperson at the time of Saro-Wiwa's execution.
The plaintiffs are quietly confident of a conviction, and international commentary has long concurred that Shell is a guilty party. But circumstantial evidence is one thing — do the plaintiffs have a smoking gun?
No, but they do have some pretty persuasive evidence.
When Shell heard of a demonstration planned in late 1990, they specifically requested the Mobile Police Force, known locally as the "kill-and-go" police. They quelled the demonstration with massive scorched earth operations, and killed 80 villagers. In September 1993, by which time Ogoni protests were a regular occurrence, these policemen travelled in Shell boats and a helicopter chartered by Shell to Ogoni villages where, over several days, over 1000 villagers were massacred.
In relation to the charge of conspiring with the government to falsely try Saro-Wiwa and the MOSOP leaders, two chief prosecution witnesses signed affidavits attesting they had been bribed directly by Shell and others to testify against Saro-Wiwa, for which they were given 30,000 Naira (Nigerian dollars), a house, and a contract from Shell. Shell representatives were present with government officials when the bribes were tabled.
Wiwa v Shell will likely conclude towards the end of June, but no doubt Shell will keep the case in the appeals court for much longer if convicted. If Anderson and/or Shell are convicted, it won't just be corporations rethinking the way they exploit the resources of third world countries, but also the military dictatorships that have thrived on this nexus of abuse.
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Congratulations New Matilda and Jess Hill on an important article.
Kevin McCready
http://kmccready.wordpress.com
Mad props.
Thanks Jess Hill, New Matilda & most importantly Ken Saro-Wiwa & those that fought beside him & those that continue to fight, for bringing this to light.
I hope beyond hope that Shell’s domino will fall & be the momentum that will bring many more criminal corporate domino’s tumbling down, along with all the rotten people involved. its well past time!
*shut the hell up pessimism*
Any reasonable human might expects that if a man or woman is found guilty of wilfully causing the suffering and deaths of so many others, for the purpose of profit, it would be too lenient for that man or woman to be deprived of the prime of their life by imprisoning them only to be released when they are too old and withered and weak to be able to make a life for themselves again.
That a possible court ruling "could result in hundreds of millions of dollars in damages" is beyond lenient, and would do nothing at all by way of punishment or deprive SHELL of their ‘prime time’
Let’s put it in perspective: although the figures may be deceptive as oil is generally traded in US$ and at 2006 the $ had been weakened following the trading of Oil by Saddam in EUROS.. The profit made by Shell in 2006 was €20,000,000,000. So what’s a Couple of Hundred when Shell made Twenty Thousand … Million in 2006 alone?
Corporate Shell should be flagellated so hard that it’s economic flesh is torn from it’s skeleton and used to nourish those it was brought suffering to.
If that causes Shell to be so weakened that it is unable to make a go of it’s ‘self’ again, then ‘tough’. There will be others at the public auction to take up the infrastructure; sure that might create inefficiencies; But think of the employment that would create, it’s a win, win.
And as for those that have shares in Shell; they should be more vigilant in making ethical investments; it’s not as though they weren’t given fair warning.
I say ‘cripple them’ ‘make them bleed’, and then move on to the next corporation.
But we all know that won’t happen; it’ll be business as usual.
So Shell; ‘how much for the little girl?’.. that could be the new company motto, or something the plaintiff’s attorney could ask.
Corporate greed gone mad.
Go for the jugular, get Shell any way they can.
I hope Ken gets the posthumous justice this case deserves.
Shocking and completely despicable what they did to the Ogoni people.
Thank you Jess for making us aware.
Shell Petroleum Development Company of Nigeria (SPDC)
Formerly: April 1956 - Shell-BP Petroleum Development Company of Nigeria Limited
From their Web Site… "Meanwhile, SPDC’s community programme in Ogoni continues. However, the company has always maintained that any future resumption of oil production in Ogoniland is contingent on the support of all Ogonis. "
http://www.shell.com/home/content/nigeria/about_shell/issues/ogoni/ogoni…
Shell was in good company with BP; but I thought there were laws preventing criminals from associating; No , hang on, those laws are only for bikers and such.
It’s OK, and even very desirable if our Queen or other Special People have shares in them…. It’s even OK if they sell opium for a buck; that is after all how Rio Tinto got a head start during the Opium Wars; same people, same families, same contempt for humanity.
In 1953 BP, having seen the oil industry become nationalised by the Iranian President Mosadeq, were of the essence in the Anglo-American Intelligence OPERATION AJAX. They turned the whole country from a secular democracy into crap.
http://www.nytimes.com/library/world/mideast/041600iran-cia-index.html
Gen. H. Norman Schwarzkopf had great success there, in an advisory capacity ;-) , more recently he went to Iraq….
Chevron could face up to $27 billion in liability in Ecuador for pollution of the jungle.
http://www.nytimes.com/2009/05/15/business/global/15chevron.html
Exxon Mobil is being sued by Indonesian villagers from the province of Aceh who allege human rights violations committed by soldiers hired to guard a natural gas plant.
http://www.business-humanrights.org/Categories/Lawlawsuits/Lawsuitsregul…
Utterly shocking, but not surprising. We have always known that these Big Multi-Nationals are totally unethical, and a few thousand lives here and there has never concerned them one whit, in their pursuit of Profits above all else. It has happened SO many times.
What is more terrible even is that the home bases of these Corporations have done nothing to bring their monsters to heel, and are thus complicit.
Even now, Corporations like Halliburton and their ilk are reaping billions from war torn countries invaded/occupied by the USA (Iraq/Afghanistan), and lives are being lost. Governments as such under Cheyney (Halliburton) and Bush (Big Oil) have aided and abetted these Crimes Against Humanity and War Crimes, but any attempt to bring these people to courts has always failed on influence and lack of intestinal fortitude on the part of Relevant Authorities. Now, Obama has also shown this lack of GUTZ! or, even worse, as I have said before, he made a deal with Bush!
Any deal with Bush has failed to include Cheyney, obviously. That man has gone absolutely FERAL in his pursuit of saving the Bush/Cheyney Legacy. Probably more Cheyney than Bush.
I have always tried to avoid buying my fuel from from the worst of these Big Oil Offenders, but it is impossible to avoid buying from one of them, unless I take up bike riding, at my age and condition, quite impossible. They are quite well aware of that, in general. Boycotts are therefore, unlikely, unfortunately.
Their Spin Machines have always been in overdrive, and very well funded, and because of this I am very pleased that this article has appeared, thanks to Jess Hill and New Matilda.
I have to say that I had heard nothing more than vague rumours of what was happening in Nigeria/Niger before this. The Mass Media all over the world, is pretty much controlled by these Corporations, or their mates, and have made pretty sure that this does not reach the ears and eyes of the General Public. Plus we have the supposedly democratically elected Government there being utterly complicit, as other Governments have been in other places.
Big Corporations also have lots of ‘friends’ in very high places, especially in such places as USA, Britain, Australia, and have bought influence in all other places.
****
Another surprise this morning, not relevant to the above. Listening to ABC RN, I heard of the interference in the Sri Lankan mass extermination of Tamils, by China! Seems that China has now added Sri Lanka to it’s list of countries where they are assisting in GENOCIDE of minority populations, by supplying Arms, Munitions, Aircraft etc, and blocking any attempt by the UN to call then to quit in the Security Council. Now they add SriLanks to Zimbabwe, Sudan,
Burma and probably lots of other places, taking a leaf out of the US Handbook of Gross Imperialism, Occupation and Arms Sales.
I would place a lot of the blame for this with Cheyney/Bush/Howard/Blair and the way they have acted in the World for 8 years. Seems I may now have to add Rudd to this list.
In Australia, our lick -a**e Government seem Hell Bent on selling the whole country and it’s resources to China, all in pursuit of Profits and ‘Jobs’, knowing full well that they are a Totalitarian Dictatorship, guilty of Mass Exterminations by Proxy outside China; and themselves, in China, in places such as Tibet and the Muslim north. We are being PROSTITUTED by our own Government and it’s either home-grown or extra-national Multi National Corporations, which control our resources.
More and more, Governments are ignoring the Public Will, because they know that enough Spin, funded probably by these Big Corporations donations, is enough to let them win again, knowing that most of the Public is too damned dumb and uninformed to know any better. They prefer to follow ‘footy’ and their immoral depredations.
In any case, more and more, Oppositions are are also in the pockets of Big Business, so the Baddies ALWAYS win!
RE above. As Jess Hill wrote, even if the Court eventually finds Shell guilty and imposes a paltry fine, a wrist slap, they will tie it all up in courts for years into the future, and in the meantime, continue to rake in massive profits from their criminal and unethical activities.
More relevant perhaps, would be if Britain and Holland, in Europe, were to take them to Court and drove them out of business, confiscating all their ill-gotten gains, but we all know this is just wishful thinking. Dazza.
Immediately after reading the above, by pure coincidence I went to the NotStupid web page (http://www.notstupid.org/) where a link "Shell Stupid - and Guilty" caught my eye, leading to another Not Stupid page with an article on the same subject. This piece also has a link at the bottom to http://www.shellguilty.com/ - have a look if you’re interested in expressing your support for the campaign.
Thanks, tts, I have done so! Dazza.
"If Anderson and/or Shell are convicted, it won’t just be corporations rethinking the way they exploit the resources of third world countries, but also the military dictatorships that have thrived on this nexus of abuse."
This statement betrays Jess’ complete and utter failure to grasp the issues surrounding this matter. Shell won’t be rethinking a whole lot, much less corporations generally, and the "military dictatorships" sure as h*ll won’t be scouring the judgment of a US Federal Court.
And it’s probably worth pointing out to the other comment(at)ers that it’s somewhat difficult, even in America, to be "convicted" of anything in a civil trial.
The whole thing’s fairly predictable: The parties will settle for a record payout, which means that the plaintiffs will get more than a court would have awarded them. Shell will prefer this to a judgment against it, which would be bad (worse) PR, and write the funds down as a loss. We’ll all talk about the "successful" claim, congratulating ourselves on finally starting to bring multinational corporations to account - which will take the wind out of the sails of people fighting for something that may actually be slightly effective, the international criminal liability of corporations for human rights abuse (by attributing legal personality to corporations for the purposes of international criminal law).
Upshot: Everyone feels better, nothing changes.
Say it three times, it starts to have a ring to it.
Everyone feels better, nothing changes.
Thanks newmatilda and Jess Hill. Having started reading for the satire I will stay with this site for telling me the stories I don’t get elsewhere.
Thank you New Matilda for this article I will pass it around
well, i am glad to hear this.
i saw a documentary on sbs about shell’s despicable practice in nigeria featuring many candid interviews with saro-wiwa. the wiwa they showed in the film was this amazingly charming, clever and brave person (from memory it was actually a only a few days after sbs screened this doc that he was executed). that he, his colleagues and countrymen were so brutally murdered and tortured is a tragedy.
because of the impression that wiwa made, i had thought of him a lot over the last 12 years and assumed that the whole murderous affair had just been forgotten about. i am glad to hear this is not the case. i hope his family and people get their day in court and are awarded some serious damages, because when saro-wiwa was murdered, they were seriously robbed.
Thanks for making this public. Too often corporate malfeasance goes unnoticed, or is diluted to nothingness by syndicated media.
Go well,
Nicholas Taylor
http://outcrop.com.au
I have also known about Shell’s activities in the past and they have not cared one iota for the humans being displaced or affected in some other way because of their greed.
Thank you for bringing our attention to this most despicable injustice and may the victims find peace now they are at rest.
Yes, let Shell suffer the full consequences for these acts as they have lied in espousing their non-involvement of these killings and God knows what other acts they have contributed to in other places so that they can once again make a nice profit at the expense of others.
A new development in this story has emerged today. For those who haven’t already heard, the Shell trial has been postponed indefinitely. No details have been given, but there is plenty of speculation around this announcement.
Details about this development has been announced on news and activist sites concerned with Shell in Nigeria. Rachel
Hey Rach, I spoke to a woman this morning at the Center for Constitutional Rights, and apparently it will most likely resume on Monday, maybe Tuesday. It does look like it will resume soon, anyway.
>"But this is a Nigerian case involving a Dutch corporation. How can it be tried in America?"
Which raises the question … is Shell obliged to turn up to defend the case and if Shell lost the case, would any penalty be enforceable?
America may think that it has jurisdiction over the entire world. Perhaps someone needs to point out bluntly that it doesn’t.
Hi Freeman,
Yes, Shell most definitely is obliged to turn up. Here’s the definition of the Alien Tort Statute:
"The district courts shall have original jurisdiction of any civil action by an alien committed in violation of the law of nations or a treaty of the United States. This statute is notable for allowing United States courts to hear human rights cases brought by foreign citizens for conduct committed outside the United States."
The act requires companies with a substantial presence in the United States to obey US law - everywhere in the world. They are charged with a crime, essentially, and are obliged to show up if the judge decides to take it to trial.
If found liable, Shell would be forced to pay damages that amount to hundreds of millions of dollars.
But forget the dollar-sign damages. This is not just a group of villagers that got murdered during a protest, something that can easily go under the radar. This was a hugely influential man who was executed despite the petitioning of leaders around the world for clemency. For Shell to have colluded with the Nigerian government to kill him in the face of such international condemnation is what makes this case potentially so landmark.
Some more background here, as I’ve been following the Ken Saro-Wiwa martyrdom and met a student organiser for the Ogoni people here in Australia back in the 90ies:
http://www.sydneyalternativemedia.com/id142.html
"Shell Hell"
especially this original testimony of a victim of the oil industry there under a fictional name which interview I conducted at the Friends of the Earth office in Sydney:
16/3/2001 - News release Woodside take-over: Nigerian refugee tells ‘Shell’s domination of industry, puppeteering of govt, rampant pollution, political murders’
at
http://www.sydneyalternativemedia.com/id147.html
Jess,
your comments are bordering on irresponsibility now. You could have at least acknowledged that your description (definition?) of the Alien Torts Statute was lifted straight from Wikipedia. The introductory paragraph, no less? Surely, as a journalist (I’m presuming here) you could find a more reliable source for such information than the anonymous ramblings of Wikipedia? Also: While you can certainly argue that "landmark" can be used as an adjective, it’s certainly not gradable.
But what do you mean by "forget the dollar-sign damages"? Are you suggesting that there are remedies other than damages availble to the plaintiffs in this case? There’s not. Are you suggesting that a court can enforce an adverse finding against Shell in any way other than the award of damages? They can’t. It’s a civil case. So forget the rubbish about a higely influential man - that is of no relevance whatsoever!
As for this statement:
"The act requires companies with a substantial presence in the United States to obey US law - everywhere in the world. They are charged with a crime, essentially, and are obliged to show up if the judge decides to take it to trial."
What complete and utter rubbish!!!
1. The Alien Torts Statute may be resorted to for breaches of the law of nations or of treaties of the US. Your own plagiarised Wikipedia quote clearly states this. US law (even taking a broad definition of that) has nothing to do with it. Companies with a substantial presence in the United States are required to obey US law by US law - NOT by the Alien Torts Statute, and NOT everywhere in the world. This suggestion is simply too ludicrous to contemplate.
2. The Alien Torts Statute is a civil law instrument. Corporations are NOT "charged with a crime". Furthermore, corporations need not even have committed a crime to trigger the statute, as the tort is based on violations of the law of nations - not established criminally liability for such violations.
Seriously, important issues such as breaches of international law by corporations should be presented with at least some level of analysis. At the very least, these articles should contain more fact than fiction, something that can’t be said about this one.
Hi iconixcs,
Slanging matches are generally a waste of time, so I’ll just address a couple of your concerns.
Firstly, I’m afraid it is you who is limited to Wikipedia. If you’d been inquisitive enough to investigate this further, you’d find the definition, also featured in Wikipedia, is published on page 126 of ‘International Law Reports’ By Elihu Lauterpacht, C. J. Greenwood, and Andrew Oppenheimer. I verified this before posting the comment, and having had several conversations with lawyers and researched almost full time for about a week, felt comfortable aligning myself with the one-line summation that Wikipedia offers to follow.
And if you read Ken Saro-Wiwa’s latest piece in the Guardian (www.guardian.co.uk/commentisfree/2009/may/24/ken-saro-wiwa-shell), you might come to the conclusion, like I have, that it is not millions of dollars the plaintiffs are after, but accountability.
If I had time, I would address your other concerns, but rather than go back over the research, I’ll leave you to do some research of your own.
Hi Jess,
thanks for your reply. Your source for the quoted paragraph highlights the need for quoted paragraphs to be attributed, rather than merely placed in quotation marks.
As regards accountability - I am simply trying to establish exactly what you are suggesting the US Court has the ability to award. I inferred from your original article and subsequent comments that you believe this is something other than damages.
But slanging matches aside - please do, if you can find the time, address my other concerns, particularly about Shell being "charged with a crime", and US-based companies being compelled to "obey US law - everywhere in the world." While I have every respect for both your week of full-time research and your several conversations with lawyers, the conclusions you draw contradict my own two and a half years of full-time research in the area of corporate accountability for transnational crimes.