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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