i) US DISTRICT JUDGE RULES THAT THE CASE AGAINST SHELL CAN PROCEED AND THAT THE ALLEGED ACTIONS OF SHELL CONSTITUTE PARTICIPATION IN CRIMES AGAINST HUMANITY, TORTURE AND OTHER VIOLATIONS OF INTERNATIONAL LAW.
March 5, 2002, New York -- A U.S. Federal Court has ruled that a civil lawsuit charging multinational oil giant Shell with complicity in human rights violations will go forward. The ruling in Wiwa v. Royal Dutch Petroleum Co. by Judge Kimba Wood held that Shell Transport and Trading Company and Royal Dutch Petroleum Company can be held liable in the U.S. for cooperating in the persecution and execution of environmental activists in Nigeria.
"This ruling means that the families of Ken Saro-Wiwa and his Ogoni colleagues may yet get some measure of justice for the unlawful executions and other abuses in which Shell was complicit," said Richard Herz, an attorney with EarthRights International, a non-profit group that is co-counsel in the case. "More broadly, it sends a strong message to other multinational companies that they cannot participate in egregious human rights abuses with impunity."
Despite widespread international protest, noted Nigerian environmentalist and writer Ken Saro-Wiwa, youth leader John Kpuinen and seven other Ogoni activists were hanged by the Nigerian military government on November 10, 1995. The "Ogoni Nine" had opposed Shell's pollution and oil development in the Niger Delta. In his last statement to the military tribunal that sentenced him to death, Saro-Wiwa said "Shell is here on trial. The Company has, indeed, ducked this particular trial, but its day will surely come..."
Fulfilling this prophecy, the court refused to dismiss the lawsuit brought by surviving relatives of Saro-Wiwa and Kpuinen, which alleges that Shell played a role in the execution of the two men as well as other violations. The court also refused to dismiss similar claims against Brian Anderson, the former head of Shell's Nigerian subsidiary, and claims by an additional plaintiff, who remains anonymous for her safety, alleging that she was beaten and shot while peacefully protesting bulldozing of her land by Shell.
In denying Shell's motion to dismiss the case, the court found that the alleged actions of Shell and Anderson constituted participation in crimes against humanity, torture, summary execution, arbitrary detention, and other violations of international law. The court also found that Anderson could be sued under the Torture Victim Protection Act, which allows victims of torture to sue the perpetrators in federal court. Finally, the ruling allows the plaintiffs' claims under the Racketeer Influenced and Corrupt Organizations (RICO) Act to proceed, finding that plaintiffs' allegations that Shell acted in concert with the Nigerian military would constitute racketeering. The case now proceeds to discovery, where plaintiffs will have the opportunity to interview Anderson and other Shell employees, and to review their documents.
The plaintiffs are represented by New York-based Center for Constitutional Rights (CCR), Washington, D.C.-based EarthRights International, Seattle University law professor Julie Shapiro, and Paul Hoffman. Judith Chomsky, a CCR Cooperating Attorney, commented today, "Shell had direct involvement in human rights violations against the Ogoni people. Any company that profits from crimes against humanity should be brought to justice wherever they are. When they do business in the U.S., they should be made to answer for their actions in U.S. courts." CCR attorney Jennie Green added, "Human rights law doesn't apply only to governments and individuals; multinational corporations also must be held accountable when they violate such fundamental international legal principles."
[Source: EarthRights International - March 5, 2002, New York]
BACKGROUND INFORMATION: WIWA V. ROYAL DUTCH PETROLEUM (SHELL).
This case charges Royal Dutch Petroleum Company and Shell Transport and Trading Company (Royal Dutch/Shell) with complicity in human rights abuses in Nigeria. The particular abuses at issue are the November 10, 1995 hangings of Ken Saro-Wiwa and John Kpuinen, two leaders of MOSOP (Movement for the Survival of the Ogoni People), the torture and detention of Owens Wiwa, and the shooting of a woman who was peacefully protesting the bulldozing of her crops in preparation for a Shell pipeline by Nigerian troops called in by Shell. These abuses were intended to suppress the Ogoni people's peaceful opposition to defendants' long history of environmental damage and human rights abuses in the Ogoni region. EarthRights International is co-counsel for the plaintiffs, along with Judith Brown Chomsky, the Center for Constitutional Rights, Paul Hoffman, and Julie Shapiro.
Read the Amended Complaint in this case. [ http://www.earthrights.org/shell/complaint.html ]
Plaintiffs' action was brought under the Alien Tort Claims Act and also alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants moved to dismiss both the initial and the amended complaints on the grounds of lack of personal jurisdiction over Royal Dutch/Shell, forum non conveniens (defendants argued that the case should be heard in the Netherlands or England), and lack of subject matter jurisdiction (defendants argued, inter alia, that ATCA did not apply to a corporation and that the claim was precluded by the political question and act of state doctrines, as well as Nigerian law on corporate liability).
On September 25, 1998, Judge Kimba Wood concluded that personal jurisdiction was appropriate in New York, but also ruled that England was a more convenient forum, and therefore that defendants' motion to dismiss should be granted for forum non conveniens.
On appeal to the U.S. Court of Appeals for the Second Circuit, plaintiffs argued that a forum non conveniens dismissal would vitiate Congressional intent to allow plaintiffs' claims to be heard in U.S. courts. Defendants cross-appealed the ruling on personal jurisdiction. In a huge victory for the plaintiffs, the Court of Appeals on September 15, 2000 reversed the district court's forum non conveniens dismissal, concluding that the United States is a proper forum. The Court also upheld the district court's ruling that jurisdiction over the defendants was proper and remanded the case back to the district court to rule on defendants' other objections to the suit.
Read the Court of Appeals opinion. [ http://www.earthrights.org/shell/appeal.html ]
Royal Dutch/Shell petitioned the United States Supreme Court to review the Second Circuit's decision, but on March 26, 2001, the Court declined to do so, and let the Second Circuit's decision stand. Royal Dutch/Shell had argued to the Supreme Court not only that the Second Circuit erred in finding that a New York court has jurisdiction over it and that the case is properly heard here rather than in England, but also that the Supreme Court should overturn the Second Circuit's landmark 1980 holding in Filartiga v. Pena-Irala that the Alien Tort Claims Act allows suits by aliens for violations of customary international law. The Supreme Court's order did not address the merits of these arguments. Nonetheless, it was an important victory for the plaintiffs, because it rebuffed Royal Dutch/Shell's effort to end the litigation without a court ever hearing evidence of Shell's involvement in the egregious abuses at issue. Also in March 2001, the plaintiffs sued Brian Anderson, the former Managing Director of the Royal Dutch/Shell subsidiary Shell Nigeria. Royal Dutch/Shell and Anderson then made motions to dismiss the case, arguing that the plaintiffs had no legal claims.
In another major victory for the plaintiffs, on February 28, 2002, the district court denied the motions to dismiss on virtually all of the plaintiffs' claims. Judge Wood's opinion found that the plaintiffs' allegations met the requirements for claims under the Alien Tort Claims Act, in that the actions of Royal Dutch/Shell and Anderson constituted participation in crimes against humanity, torture, summary execution, arbitrary detention, cruel, inhuman, and degrading treatment, and other violations of international law. The court also found that Anderson could be sued under the Torture Victim Protection Act, which allows victims of torture to sue the perpetrators in federal court. Finally, the court found that the plaintiffs' RICO claims could proceed, because Royal Dutch/Shell's actions in concert with the Nigerian military satisfied the racketeering requirements of the act, and because they engaged in these acts in part to facilitate the export of cheap oil to the United States. The court ruled that none of the defendants' other defenses were applicable, thus bringing the plaintiffs one important step closer to redress for the violations they suffered. The plaintiffs are now entitled to gather evidence by interviewing Anderson and other Royal Dutch/Shell employees, and by reviewing their documents.
[Source: EarthRights International www.earthrights.org (last updated: Wed, 06 Mar '02)]
ii) US FEDERAL COURT JUDGE FINDS THAT THE FACTS OF THE CASE AS ALLEGED BY THE PLAINTIFFS COULD CONSTITUTE "CRIMES AGAINST HUMANITY" UNDER THE DEFINITION OF THE 1998 ROME STATUTE AND RECOGNIZES CLAIMS UNDER THE RICO ACT.
A ground-breaking lawsuit against a major multinational oil corporation accused of complicity in serious abuses of human rights in Nigeria has passed a major judicial hurdle and moved a big step closer to trial.
In an opinion received by the parties to the suit this week, United States Federal Court Judge Kimba Wood denied a motion brought by Royal Dutch Shell Petroleum Company to dismiss the case filed by the families of renowned Nigerian writer, Ken Saro-Wiwa, and eight other Ogoni activists who were hanged by the Nigerian military government in 1995.
As a result, the plaintiffs can now move to "discovery," which will allow them to gather evidence from Shell and other defendants that may help them prove charges that Shell cooperated with the military government in the persecution and eventual execution of the Ogoni activists.
"This ruling means that the families of Ken Saro-Wiwa and his Ogoni colleagues may yet get some measure of justice for the unlawful executions and other abuses in which Shell was complicit," said Richard Herz, an attorney with EarthRights International, who is co-counsel in the case.
"More broadly, it sends a strong message to other multinational companies that they cannot participate in egregious human rights abuses with impunity," said Herz Tuesday.
A spokesperson reached at Shell's U.S. headquarters in Texas said she was unaware of Wood's ruling but would try to get a statement. None was available before publication.
The Ogoni case, which has gone through several twists and turns, was the first of several in which members of minority groups in oil-producing countries have sued oil companies active in their region for human rights abuses under the Alien Tort Claims Act, an anti-piracy statute which is now more than 200 years old, and the more recent Torture Victim Protection Act.
Both laws make it possible for non-citizens to sue foreign individuals or companies in U.S. courts for serious human rights abuses, so long as the defendants can be found on U.S. territory.
In addition to the Ogoni-Shell case, suits have been filed against Exxon-Mobil by people from Indonesia's embattled Aceh province, against Unocal by members of ethnic minorities in Myanmar (formerly Burma); against Chevron-Texaco by other Nigerian groups, and against Texaco by Ecuadorian indigenous communities.
The specific abuses charged in the Ogoni lawsuit rest on allegations that Shell, its Nigerian subsidiary, and John Anderson, the former head of that subsidiary, conspired with the military government to arrest and convict Saro-Wiwa and eight other members of the rights group Movement for the Survival of the Ogoni People whose land in the oil-rich Niger Delta remains crisscrossed and badly polluted by oil pipelines and other infrastructure.
The suit also alleges that Shell provided material and other support to the military in what environmental groups like the Sierra Club have characterized as a "scorched-earth campaign" against Ogoni communities which opposed local oil operations. One of the plaintiffs, "Jane Doe," was beaten and shot by Nigerian army troops in one raid.
In his last statement to the military tribunal which convicted him of murdering Ogoni rivals, Saro-Wiwa, whose execution provoked international outrage, warned that Shell would come to regret its actions. "Shell is here on trial," he said. "The Company has, indeed, ducked this particular trial, but its day will surely come."
Shell won a dismissal from Wood in the case in 1998 when she found that Britain would be a more convenient forum for the trial. But the Court of Appeals overruled that decision two years later. The U.S. Supreme Court rejected Shell's appeal to hear the case, which sent it back to Wood.
Not only did she rule that the case could proceed on the basis of the two anti-torture statutes, but she also permitted another claim--under the Racketeer Influenced and Corrupt Organizations (RICO) Act, often applied against criminal organizations which try to bribe jurors or suborn perjury--to proceed against Shell.
She also found that the facts of the case as alleged by the plaintiffs could constitute "crimes against humanity" under the definition of the 1998 Rome Treaty which creates an International Criminal Court.
"Human rights law doesn't apply only to governments and individuals; multinational corporations also must be held accountable when they violate such fundamental international legal principles," said Jennie Green, an attorney at the Center for Constitutional Rights, which is also co-counsel on the case.
[Source: Jim Lobe, OneWorld US - From OneWorld News on Yahoo - Wed Mar 6,10:52 AM ET]