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Kiobel Writ: SHELL COMPLICITY IN HUMAN RIGHTS VIOLATIONS

Shell was repeatedly behind excessively violent action by the regime against the Ogoni and other population groups that were protesting against Shell. During the trial Shell was also in direct contact with the Tribunal judges and Shell’s counsel assisted the regime in bribing witnesses.

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

8. SHELL IS COMPLICIT IN THE HUMAN RIGHTS VIOLATIONS AGAINST THE OGONI 9 AND THE CLAIMANTS

8.1 Introduction

160. As explained in the previous chapter, under Nigerian law encouraging or inciting human rights violations, promoting or contributing to them, sharing in making them possible or facilitating them leads to complicity.

161. On the basis of the circumstances described in this chapter, Shell is an accomplice to the human rights violations described in chapter 4 that were committed by the Nigerian regime against the claimants’ husbands and against the claimants themselves. In particular they are the following human rights, which form part of Nigeria’s legal order:

  • –  The right to life (Article 4 of the ACHPR and Section 30 of the Nigerian Constitution 1979)
  • –  Right to dignity of the person and the prohibition of torture and cruel or inhuman punishment and treatment (Article 5 of the ACHPR, Section 31 of the Nigerian Constitution 1979)
  • –  The right to personal liberty and the security of the person; the prohibition of arbitrary arrest and detention (Article 6 of the ACHPR, Section 32 of the Nigerian Constitution 1979)
  • –  The right to a fair trial (Article 7 of the ACHPR, Section 33 of the Nigerian Constitution)
  • –  The right to family life (Article 18 of the ACHPR, Section 34 of the Nigerian Constitution 1979)

162. Shell and the military regime formed an alliance in the events leading to the deaths of the Ogoni 9. Their relationship was one of mutual dependence: the Nigerian state was dependent on the income from oil that Shell generated; in turn, Shell was dependent on the benevolence and protection of the regime to pursue its activities in Nigeria and in this way realise a substantial part of its turnover.186 

163. Shell and the regime were also inextricably bound up with each other in their operation. Shell supported a great many government tasks in the period 1990-1995 and sometimes carried them out itself. Shell collaborated with the secret service in maintaining a spy network in Ogoniland, was prepared to purchase arms for the police, itself maintained a large police force, provided all kinds of support to different government departments and even placed its own people in them. 

164. In the run-up to the start of Operation Restore Order in Ogoniland, the major military operation that the regime intended to end the resistance in Ogoniland in 1994,187 Shell was repeatedly behind excessively violent action by the regime against the Ogoni and other population groups that were protesting against Shell (chapter 8.2). The purpose of this intervention was to enable Shell to pursue its activities in spite of the protests and to safeguard its economic interests. Shell repeatedly and emphatically reminded the regime of the economic interests of its activities in Ogoniland and the economic consequences of the uprisings aimed at Shell. Shell also several times named MOSOP as principal offender and therefore contributed to the regime’s image of the enemy. In view of the regime’s previous actions, Shell knew that it would therefore feel the need to take a rigorous approach to set things straight.

165. In this way Shell urged the regime to start Operation Restore Order in Ogoniland, of which the purging of the leadership of the Ogoni resistance was part (8.3). Shell then also actively supported the regime during its violent action in Ogoniland by providing vehicles and paying notorious militias such as MOPOL (8.4). Shell also maintained close ties with Paul Okuntimo, the army leader responsible for the military operation in Ogoniland who also played an important part during the Ogoni 9 trial.

166. The Ogoni 9 trial was the inevitable climax of the attempts by Shell and the regime to resume oil extraction in Ogoniland. Instead of distancing itself from the obvious show trial, at least keeping itself away from it, Shell had its own counsel take part in it (8.6). Shell then misled the public by publicly stating that it had withdrawn its counsel, while in reality it maintained its instructions in full force. During the trial Shell was also in direct contact with the Tribunal judges and Shell’s counsel assisted the regime in bribing witnesses (8.7). During the trial Shell kept in close touch with President Abacha, the person primarily responsible for the excesses.

167. Statements by Shell that it was steering an apolitical course, and could not therefore be held responsible for the human rights violations, are not supported by the facts. At no time did Shell distance itself from the regime, which in itself must be regarded as a political course in a period in which the international community condemned Nigeria unanimously. On the other hand, it remained extremely critical of MOSOP and the struggle of the Ogoni both publicly and in contacts with the regime. Economic interests prevailed, even when it was clear that crimes against humanity were being committed on a large scale in Ogoniland in Shell’s name. The conclusion of a major Liquid Natural Gas deal one month after the executions of the Ogoni 9 is a good example of this (8.7).

168. The inevitable conclusion is that the unlawful executions of the Ogoni 9 took place because of Shell. Even if Shell had not meddled in the trial – which it did – and its attitude was nothing more than opportunism, it can be held co-responsible for its inescapable outcome because it did nothing to influence or prevent the events it set in train. That Shell saw itself as capable of doing this is evident from the fact that it made an offer to Ken Saro-Wiwa to influence the outcome of the trial (8.6.3). To this however it attached the perfidious condition that MOSOP should discontinue its protest against Shell. When this offer was rejected, Shell continued supporting the regime behind the scenes, while publicly hiding behind an apolitical course. The great economic dependence of the Nigerian regime, invariably highlighted by Shell when it asked the regime to intervene in demonstrations, was at no time used to dissuade the regime. On the contrary, up to the end Shell tried to stay on the right side of Abacha and his ministers because the Group did not want to put its economic interests at risk. In so doing the Group invariably acted as a single entity (8.8): not only did the parent companies determine the course that SPDC had to steer, they were also themselves actively involved in it.

169. In this way the alliance that Shell entered into with the military regime led to the deaths of nine innocent Ogoni, described in chapter 4, among them Barinem Kiobel, Baribor Bera, Nordu Eawo and Paul Levula; and to the molestation of Esther Kiobel and Victoria Bera. Shell not only encouraged these events, it also facilitated, supported and influenced them. This complicity will be set out in more detail below.

Footnotes

186 See chapter Fout! Verwijzingsbron niet gevonden..

187 See chapter 4.

Footnotes end

FURTHER INFORMATION ABOUT THE WRIT

The numbered paragraphs above are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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