As Ken Saro-Wiwa Jr wrote on Tuesday, there was no hat-in-the-air moment.
On 3 June 2009, US District Judge Kimba Wood of the Federal Court in Manhattan adjourned the Wiwa v Shell trial indefinitely. Coming 14 years after the death of poet and activist Ken Saro-Wiwa, the adjournment marked yet another delay in the protracted and complex fight for justice by the Wiwa family and several other Ogoni people, as reported in a recent newmatilda.com article.
Observers interpreted the adjournment to mean either that Shell had yet another appeal underway to move the case or that another Shell subsidiary in Nigeria was also being made to stand trial — or that a settlement was being negotiated.
On Monday 8 June, a settlement was reached: $US15.5 million to compensate for nine dead men, one amputated arm, one life led in exile, several others tortured and detained and 13 years of legal fees. Perhaps the subject of the final email to Ken Saro-Wiwa Jr confirming the settlement says it best: "It’s done???"
The plaintiffs knew the decision would not satisfy everyone. Their supporters fronted the media, characterising the settlement as an admission of guilt from Shell. Their lawyers claimed to be "very satisfied" with the result. And Shell made yet another contribution to the canon of corporate farce with a press release titled "Shell settles Wiwa case with humanitarian gesture".
When I first heard the news, I was confused and disappointed. A very public trial was due to start the following day in New York City. The plaintiffs had always wanted Shell to be held publicly accountable, and their lawyers believed they had enough evidence to pin the company to several counts of torture and execution. And Shell would never have even considered a settlement unless they thought they could lose.
But to be disappointed at this result is simplistic — the all too typical reaction of an armchair observer. To understand why this is still a landmark victory requires a closer look.
Wiwa v Shell is only the second case to be settled under the Alien Tort Claims Act (ATCA), a US federal statute that enables victims of human rights abuse — wherever it happens — to bring US civil suits against their oppressors. The ACTA was once used to try individuals (such as a military leader in the former Yugoslavia) but is now more commonly used against corporations, and survived concerted attempts by the Bush administration to have it dismissed. No guilty verdict against a corporation has ever been reached in an ACTA case, but two have now been settled out of court.
The first successful case involved a group of Burmese peasants that brought a civil suit against Unocal; it was settled in 2004 for an undisclosed sum (some reports put it at $30 million). Most companies who settle on cases such as these demand the details remain private, so as not to create a precedent. That case sailed past without causing much of a ripple.
On the other hand, the second settlement, reached in Wiwa v Shell, was splashed across the world on Tuesday from the Guardian to the New York Times, most reports couching Shell’s statements in a damning evidentiary context. It has brought significant attention to the likelihood of Shell’s complicity, and to the ACTA itself — which will no doubt embolden current and future ACTA cases, and prime the media to take notice of them.
Speaking to Voice of America News, Jonathan Drimmer, a lawyer who advises multinational corporations, said "Each one of these cases that actually gets to this stage, right up to the door of trial, are important cases. They’re important in demonstrating that these types of issues, human rights violations, can indeed make it through a judicial system and be heard."
The Wiwa v Shell settlement does not preclude future challenges by Ogoni people. Separate challenges are already in train against Shell — one by an Ogoni in New York, another by environmental activists in the Netherlands. Elizabeth Bast, International Program Director for Friends of the Earth US, believes Wiwa v Shell is just the tip of the litigation iceberg. "Shell will be dragged from the boardroom to the courthouse, time and again," she says, "until the company addresses the injustices at the root of the Niger Delta crisis and put an end to its environmental devastation."
The legal victory aside though, it wasn’t until I read Ken Saro-Wiwa Jr’s opinion piece in Tuesday’s Guardian that I understood what this settlement meant to the plaintiffs. In his closing paragraphs, Saro-Wiwa Jr wrote:
"For the plaintiffs and more specifically for me, it is time to pause for breath, a time to contemplate that this settlement can finally release us from the torments of the past so that we can face the future with a tangible measure of hope.
Or just maybe it is time to stop being the son of my father and be the father to my sons."
Ken was 27 when his father was killed. He is now 41. The best years of his adult life have been spent waking up every day to the constant presence of his father’s death, and the hideous task of taking one of the world’s largest multinationals to court. Perhaps when Shell indicated they would settle, he and his fellow plaintiffs saw an opportunity to achieve a sort of victory, some financial relief for their community, and the chance to get on with their lives. We all love to read about David v Goliath cases fought against the odds, but how many of us would devote 14 years of our lives to fighting one?
So forget about the sum for a minute, and get over the disappointment of having missed Shell going on trial. The Wiwa v Shell victory has been settled against all odds, and will hopefully be remembered in years to come as the case that opened the floodgates for oppressed peoples worldwide to hold their oppressors accountable in a court of law.
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