Shell to face US lawsuit for Saro-Wiwa execution
Anglo-Dutch oil company fails to have a multi-million pound civil claim by Nigerian emigres thrown out by New York appeal court
By Karen McGregor in Durban
19 September 2000
Allegations that the oil multinational Shell aided and abetted the torture and murder of Nigerian activists – including the executed writer Ken Saro-Wiwa – will be tested by a full jury trial in New York, after the oil company's attempts to have the case thrown out were rejected.
Shell will also stand accused of orchestrating a series of raids by the Nigerian military on villages in the Ogoni region that left more than 1,000 people dead and 20,000 homeless.
Saro-Wiwa and eight others were arrested in 1994 after a fatal attack on former leaders of their Movement for the Survival of Ogoni People (Mosop). In a case that shocked the world, and was widely reported to be a legal farce, they were found guilty of the murders by military tribunal and executed in November 1995.
Now the case of the "Ogoni Nine", as they became known, has come back to haunt the Dutch and British owners of Shell Nigeria.
The lawsuit was lodged by the Center for Constitutional Rights in New York on behalf of three Nigerian emigrés to the US, including Saro-Wiwa's brother Dr Owens Wiwa, and a woman identified as "Jane Doe" to protect her safety.
Their claims could run to tens of millions of pounds in damages against the oil company. "We believe Shell facilitated Saro-Wiwa's execution," said Jenny Green, of the Center for Constitutional Rights, after the judgment. "We believe there is a basis in US law to hold Shell accountable."
Dr Owens Wiwa and the other plaintiffs claim to have suffered abuse or be related to victims of a state terror campaign against Ogonis who fought oil exploration in Nigeria's Rivers State. They specifically allege that Shell Nigeria:
* Lent boats to Nigerian troops in September 1993 which were used to attack Ogoni villages. On the days of the attacks, ahelicopter chartered by Shell reconnoitred three villages where military operations led to the massacre of more than 1,000 villagers.
* Made cash payments to military police who shot a 74-year-old man and two youths in the presence of Shell employees.
* Specifically requested the assistance of Nigeria's notorious "kill-and-go" mobile police force to quell protests. In late 1990 these police carried out massive "scorched earth" operations, culminating in the massacre of 80 villagers and the destruction of hundreds of homes.
* Called in government troops to fire on Biara villagers who were peacefully protesting at the destruction of their homes to build the Rumuekpe-Bomu oil pipeline
* Participated in the fabrication of murder charges and the bribery of witnesses to give false testimony against Saro-Wiwa, the youth leader John Kpuinen and other protest leaders, who were repeatedly detained and tortured by the government and later convicted of murder and hanged.
* Coercively appropriated land for oil development without adequate compensation, and proceeded to seriously pollute air and water in Ogoniland.
They also contend they and family members were imprisoned, tortured and killed by the Nigerian government at the instigation of the oil company, in reprisal for their opposition to oil exploration, and were not afforded the legal protection required by international law.
"Jane Doe" claims to have been beaten and shot by the Nigerian military in a raid on her village. A further contention is that Saro-Wiwa's family – including his 74-year-old mother -- were beaten by Nigerian officials while attending his trial.
Shell was "disappointed" that its appeal had been rejected and said it was "still considering" in detail what its response would be if the case were to come to trial.
For years the Ogoni people, who live in the small but highly populated and formerly fertile Rivers State in Nigeria, waged an activists' war against a dictatorial state and multinational oil companies they accused of destroying their environment.
Shell Nigeria first began its operations in 1958, when Nigeria was still a British colony. The country has vast oil reserves and oil accounts for some 90 per cent of export earnings and 80 per cent of state revenue.
The Ogonis, a minority ethnic group with little political clout, had no say then (or after independence in 1960) over oil activities that spawned more than 100 wells and, it is estimated, more than 3,000 oil spills.
The Ogonis' campaign began in the early 1990s as a peaceful protest movement but became a dirty struggle, literally and figuratively, that saw an increasingly militant Mosop – which protested against poverty and environmental damage, and demanded autonomy for the Ogoni with a share in oil revenues – violently repressed by the dictatorial Nigerian military government. Oil producers saw Mosop as bad for business, while the government saw it as a secessionist and political threat and focused on Ogoni leaders for repression.
The lawsuit was originally filed in a Manhattan federal court in 1996 under laws that allow action in the US against firms accused of human rights abuses anywhere in the world. It alleges rights violations involving the Dutch-owned Royal Dutch Petroleum Co and its sister company, Shell Transport and Trading Company Plc, based in Britain.
They jointly control the multinational Royal Dutch-Shell Group, a network of affiliated but independent oil and gas firms, one of which is Shell Petroleum Development Co of Nigeria (Shell Nigeria) – the country's biggest oil producer.
Royal Dutch, which wants the case heard in England, said that the Nigerians' allegations were "false and unsubstantiated". The ruling, it added, "is about where the case should be brought, if it is brought at all, and not about the merits of the allegations". The US Circuit Court of Appeals, however, considered the case sufficiently valid to overrule a 1998 lower court judge, who dismissed it on jurisdictional grounds. That dismissal itself overruled an earlier court finding that jurisdiction did exist. The appeals court judge Pierre Leval said the lower court "failed to give weight" to three factors that favoured US jurisdiction for the trial.
First, some of the plaintiffs now live in the US and chose the forum. Second, the lower court had ignored interests of the US in providing a forum for human rights claims. And finally, "the factors that led the district court to dismiss in favour of a British forum were not compelling".
Judge Leval also said that "new formulations" of the Torture Victims' Protection Act of 1991 "convey the message" that torture committed under the law of a foreign nation in violation of international law are also violations of US domestic law. The district court, he also argued, failed to consider financial hardship the plaintiffs would suffer if the case was moved to Britain, and sent it back to district court for further argument.
Environmental groups such as Earthlife Africa accused oil companies of causing serious damage without consulting the Ogonis, and there were allegations that oil companies were behind the terror campaign. But the world largely ignored the events that led up to the execution of the Ogonis and Saro-Wiwa, whom Amnesty declared a prisoner of conscience.