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Kiobel Writ: Shell’s requests led to deaths at Bonny Terminal and Trans Niger Pipeline

The fatal incidents in Umuechem, at the Bonny Terminal and the TNP evidently did not give rise to greater caution at Shell; even after these experiences it asked the Nigerian regime to deploy additional police and army units for the protection of its facilities.

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. At the time of all of these horrific events in Nigeria, orchestrated to a large degree by Shell, the oil giant claimed that it was operating within its core business principles, including honesty, integrity, openness and respect for people. 

EXTRACTS FROM THE ESTHER KIOBEL WRIT 

8.2.4 Shell’s requests for assistance led to deaths at the Bonny Terminal and the Trans Niger Pipeline

185. In the years following Umuechem there were more demonstrations against Shell, which the army or the police brought to an end heavy-handedly. Here too there were fatalities. Shell’s General Manager Business Development (GMB) Emeka Achebe for example reported to the service companies on 12 May 1993 that an inhabitant of Bonny had died and two others had been seriously injured at demonstrations at the Bonny Terminal on 20 and 21 July 1992, following intervention at a demonstration by a 51-strong Rapid Intervention Force (exhibit 73).220 According to the same Achebe, this Rapid Intervention Force was a predecessor of the notorious RSISTF.221

186. As a result of the constant demonstrations against its presence in the area, Shell withdrew from Ogoniland in January 1993. In official documents Shell has said the following about this:

“We will not resume production in Ogoni land with military protection but only with the cooperation and peaceful disposition of the communities.”222

187. Despite its official withdrawal, Shell however continued to transport oil through Ogoniland and its facilities were permanently guarded by police and MOPOL units paid by Shell.223 Shell also continued with the construction of a new oil pipeline, the Trans Niger Pipeline (TNP), through the conflict area.

188. Even though Shell had been allowing for the potential problems to which the construction of the pipeline could lead before its official withdrawal from Ogoniland – in December 1992 Shell advised Willbros West Africa, the company building the pipeline, that “the ever increasing tension in the area would result in an inevitable confrontation with the possibility of individuals suffering personal and physical injury”224 – it nonetheless continued with the pipeline’s construction following its withdrawal from Ogoniland.

189. The continued construction of the TNP was against the wishes of MOSOP and a large part of the Ogoni population and was contrary to Shell’s promise only to develop economic activities in Ogoniland in partnership with the local population. Internal Shell correspondence, dated 23 February 1993 (exhibit 68), reveals that Neil Whyte, the General Manager of Willbros in Nigeria, was very critical of Shell’s approach and anticipated major difficulties:

“Neil Whyte stated that clearly there are two alternative courses of action namely, to apply maximum military presence which GME [the General Manager East] rightly says will attract a potential confrontation which may have catastrophic results, or to dramatically increase our public relations effort. His opinion is quite clear – Shell has an apparent unclear policy with respect to construction operations security. He also believes that Shell has a lack of sensitivity for the villagers, has poor lead time planning in relation to negotiating with the villagers prior to bull dozers arriving to destroy farmland, and is willing to accept lengthy delays in resolving villagers claims […]. Unfortunately, his view is shared by the majority of the SPDC and contractor staff I with on my visits […]”.225

190 According to the memo, Whyte suspected that the situation had already run too far out of control and that Shell was now compelled to show “considerable ‘muscle’ in the form of a substantial military presence”, where “the military […] warn[…] the communities that if there is the slightest bit of interference with the pipeline operations, they will respond with ‘deliberate’ force”.226 The memo went on to say:

“History has proven that if military personnel are initially used as a deterrent only, it only requires one shot to be fired in their direction or one act of violence for them to respond with the intention to kill. Shell’s image in the world would suffer (as it has done so in the not so distant past) and this time, the implications may be a lot more serious.”227

191. Shell however ignored the predictions that a military presence would lead to violent confrontations and its own official policy not to work under military protection228 and decided to have the pipeline built under the protection of the Nigerian army.229 MOSOP and the local population continued to protest against the construction of the TNP.

192. In letters of 16 December 1992, 7 January, 19 February and 19 March 1993 Shell identified the places where demonstrations were being held and asked Rufus Ada George, the Governor of Rivers State and a former Shell employee, to intervene so that the pipeline could be built without hindrance (exhibitions 129, 133). While doing so, Shell kept emphasizing the economic importance of its activities:

“We feel very worried about these stoppages and their resultant impact on our ability to meet the Nation’s production target.”230

“the TNPL Project is very crucial to our capacity to meet our National Production Target”.231

“We therefore humbly solicit Your Excellency’s intervention to enable us carry out our operations given the strategic nature of our business to the economy of this nation”.232

193. A Shell File Note dated 18 March 1993 (exhibit 69) shows that before the letter of 19 March 1993 Shell’s General Manager East (GME) J.R. Udofia had a meeting with Rufus Ada George. In it Ada George expressed his concern about the presence of the army and said that he wanted to withdraw the army. Udofia however emphasised the importance of the army’s presence and “suggested that the Military be allowed to give adequate protection to personnel while Government on its part should show more involvement towards arresting the consistent disruption to operations by the Communities”.233 Ada George responded by saying that he was determined to ensure that the work in Ogoniland could continue and that he would talk to the MOSOP leaders, but he also expressed a “strong indication to withdraw the Military from the site”.

194. After the meeting with Ada George, Udofia and Achebe went to Bori Camp to speak to Brigadier General T. Ashei, Commanding Officer of the Second Amphibious Brigade.234 They once again stressed to Ashei the importance of a military presence and asked him at his meeting with Ada George to emphasise the security risks that would arise if the army were to be withdrawn. Ashei agreed to do this and assured Udofia and Achebe of his full commitment to the restoration of order. He expressed the expectation that “following the arrest/detention of the Rumuekpe Youths, some sanity will be restored in the area”. Achebe then impressed upon Ashei that these young people would not be released until agreement on a “trouble free operation” had been reached with the more moderate villagers, to which Ashei promised to raise this with Ada George.235

195. The day after these meetings, Udofia, by letter of 19 March 1993, again requested intervention with reference to the economic importance for Nigeria. Shortly afterwards, on 7 April 1993, MOSOP protested, by letter to Willbros, against the presence and conduct of the army in Ogoniland. According to MOSOP, the soldiers were guilty of “illegal and provocative activities […] such as the arrest and detention of Ogoni men under grave, inhuman conditions”.236

196. Then, on 30 April 1993 the expected confrontation between the army and the Ogoni demonstrators took place. Greenpeace wrote the following about this (exhibit 221):

“As the peaceful protest against the pipelaying culminated in a demonstration of 10,000 people, soldiers opened fire on the crowd, wounding at least 10 and leaving Mrs Karalolo Korgbara, a mother of five, in a critical condition. She later lost her arm because of her injury.”237

197. With the protests then intensifying, on 3 May 1993 Shell and Willbros decided to suspend work on the pipeline. On 4 May Udofia explained Shell’s decision in a letter to Governor Ada George (exhibit 136), in which he asked him – again referring to the economic importance of the project – to ensure that the project could be resumed:

“I regret to inform you that work on the Bomu end of the line has been forced to stop because of some community intervention. […] As at now, work has been suspended in this area of the line which carries a significant portion of the crude oil production from Shell and Elf operations. We humbly request the usual assistance of his Excellency to enable the project to proceed”.238

198. In his deposition in the American Kiobel case (exhibit 56) Udofia stated that by “the usual assistance” he meant something other than military intervention, that is “[to] mediate, engage, clear the road so that we can talk and get things going”.239 This explanation however is inconsistent with the foregoing facts and the standpoints described above that Udofia had always expressed to Ada George. On 18 March 1993 Udofia had already told Ada George that mediation with the local population had produced no result at all, because “the Government Agents […] who went on site were rebuffed by the Communities”.240 In the meantime Willbros had already requested military assistance following an incident on 17 February 1993241 and Udofia and Achebe had insisted on retaining a military presence with both Ada George and Brigadier General Ashei. Ada George’s willingness to deploy the soldiers was apparent during the protest that was put down violently some days before. Shell’s request could therefore only be seen as a request for military intervention to enable the work to continue.

199. Shell for that matter, even if it had not been referring to military intervention, had to understand that Ada George would interpret this request as such, given his promise to guarantee the continuation of the work on the TNP, if need be by military means.

200. Following Udofia’s request of 4 May 1993, Ada George sent an army unit to the location Shell had identified that very same day and it brought the protests to an extremely violent end. One of the demonstrators, Agbarator Otu, was killed.242 Willbros would eventually, at the government’s request, pay the medical expenses of the injured and Otu’s funeral expenses.243

201. As a result of these developments Philip B. Watts, at that time Managing Director of SPDC, sent an urgent telex (exhibit 72) to the service companies in London and The Hague in which he said that “the ongoing difficulties in the Ogoni area […] give rise for serious concern”.244 This was no surprise to Shell: “You are aware that we had been anticipating this and hence our efforts to upgrade our contingency plans, public affairs, PA effort and security cover”.245 Regarding the security of the Shell facilities Watts went straight to the point: his telex showed that on 11 May 1993 (less than a week after the violence at the TNP) he and Achebe had had meetings with Chief Shonekan, who at that time was head of the Civilian Transitional Council and thereby responsible for the “day-to-day affairs of government”246 and who had still been a board member of SPDC less than a year before,247 the Inspector-General of the police and the Director- General of the State Security Service. Shell emphasizes the need for the presence of police and army units to protect Shell’s facilities and offered the authorities logistical support for these units.248 Although Watts was satisfied that the Nigerian regime was taking the case seriously, he still said “but we will have to encourage the follow through into real action”.249

202. The fatal incidents in Umuechem, at the Bonny Terminal and the TNP evidently did not give rise to greater caution at Shell; even after these experiences it asked the Nigerian regime to deploy additional police and army units for the protection of its facilities.

Footnotes

220 Fax Emeka Achebe (SPDC) to SIPC London and SIPM The Hague, 12 May 1993 (exhibit 73): “A contingent of 51 Rapid Intervention Force men were airlifted to Bonny Terminal”. The Rapid Intervention Force was also called the Quick Intervention Force. Greenpeace about this incident: “In 1992, one person was killed, 30 shot and 150 beaten when local villagers from Bonny demonstrated against Shell”, Greenpeace, Shell shocked: The Environmental and Social Costs of Living with Shell in Nigeria, July 1994 (exhibit 221), p. 19.

221 Exhibit 15: Public Deposition Emeka Achebe, vol. II, 6 February 2003, pp. 5-6. See on Okuntimo’s RSISTF, chapters. 4.1 and 8.3. Otherwise the Bonny Terminal was permanently guarded by the Nigerian navy, see letter Eric Nickson (Head Media Relations SIPC) to Paul Brown and Andy Rowell, 6 November 1996 (exhibit 156), pp. 4-5.

222 SPDC, Response to Human Rights Watch/Africa publication – The Ogoni Crisis: A Case-Study of Military Repression in Southeastern Nigeria, July 1994 (exhibit 146), p. 2.

223 Public Deposition George Akpan Ukpong, vol. II, 24 March 2004 (exhibit 58), pp.237-

224 Reproduced in the report of Willbros to SPDC, Review of events leading to the withdrawal of workforce from the Bomu Area, 3 May 1993 (exhibit 135).

225 Memo from William Dick (HSEL, Head of Health, Security and Environment in Lagos, SPDC) to Godwin Omene (DMD), 23 February 1993 (exhibit 68).

226 Memo from William Dick to Godwin Omene, 23 February 1993 (exhibit 68).

227 Ibid.

228 See e.g. Nigeria Update Brian Anderson, 12 August 1994 (exhibit 105), p. 2: “Whilst [this] impinges on our “no military protection” stance”; SPDC, Response to Human Rights Watch/Africa publication – The Ogoni Crisis: A Case-Study of Military Repression in Southeastern Nigeria, July 1994 (exhibit 146); Memo from William Dick to Godwin Omene, 23 February 1993 (exhibit 68), p.2: “SPDC has stated publicly that it will not operate under military protection and has not operated in the Ogoni area since 1993”.

229 Exhibit 69: File note SPDC, Egbert Imomoh (GME) meeting with Chief Rufus Ada George, 18 March 1993; SPDC, Nigeria Letter: Ogoni and the Niger Delta, August 1997 (exhibit 166); Public deposition Precious Omuku, 19 april 2004 (exhibit 51), pp. 66-67; The official instructions for the army according to the guidelines provided on 23 January 1993 were: “TO KEEP PEACE AND ENSURE SAFETY, PROVIDE AND MAINTAIN SECURITY, PROTECTION AND ASSISTANCE IN ASSURING CONTINUITY OF WORK OPERATIONS ALONG PIPELINE ROUTE”, Enclosure to letter Willbros to SPDC, 23 January 1993 (exhibit 131).

230 Letter J.R. Udofia (GME SPDC) to Rufus Ada George, 7 January 1993 (exhibit 130).

231 Ibid.

232 Letter J.R. Udofia (GME SPDC) to Rufus Ada George, 19 March 1993 (exhibit 133).

233 File note SPDC, Egbert Imomoh (GME) meeting with Chief Rufus Ada George, 18 maart 1993 (exhibit Fout! Verwijzingsbron niet gevonden.).

234 Ibid. Major Paul Okuntimo was second-in-command of the Second Amphibious Brigade, which would later also supply the majority of the members of the RSISTF (Human Rights Watch 1995 (exhibit Fout! Verwijzingsbron niet gevonden.), p. 14, voetnoot 44).

235 File note SPDC, Egbert Imomoh (GME) meeting with Chief Rufus Ada George, 18 March 1993 (exhibit 69).

236 Letter MOSOP to Willbros, 7 April 1993 (exhibit 134).

237 Greenpeace, Shell shocked, July 1994 (exhibit 221), p. 19.

238 Letter J.R. Udofia (GME SPDC) to Rufus Ada George, 4 May 1993 (exibit 136).

239 Public Deposition J.R. Udofia, 24 October 2003 (exhibit 56), p. 141.

240 File note SPDC, Egbert Imomoh (GME) meeting with Chief Rufus Ada George 18 March 1993 (exhibit 69).

241 Ibid.

242 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, of 7 December 1993, E/CN.4/1994/7 (exhibit 235), p. 106: “Agbarator Otu, who was said to have been killed when security forces opened fire on Ogoni people demonstrating against oil companies. See also Greenpeace, Shell shocked, July 1994 (exhibit 221), p. 19; Richard Boele/UNPO, Report of the UNPO Mission to Investigate the Situation of the Ogoni of Nigeria, 1995 (exhibit 228), pp. 22-23.

243 Exhibit 71: Minutes of meeting between Willbros, SPDC, MOSOP and the Nigerian regime, 11 May 1993.

244 Urgent Telex van Watts aan SIPC en SIPM, 11 mei 1993 (exhibit 72).

245 Ibid, p. 1.

246 Exhibit 266: Issue paper Nigeria, Chronology of events January 1992 – February 1995, Immigration and refugee board of Canada, p. 8.

247 Exhibit 157: Annual Accounts SPDC 1992, pp. 3, 19.

248 Watts says: “We informed [Shonekan] about our efforts to work with the police, providing logistic support for their protection of key locations”, “The opportunity was taken to stress the need for extra police presence in strategic locations and offer logistic support (since they are incapable to doing it themselves)” and “reiterate our requests for support from the police and army” in Urgent Telex from Watts to SIPC London and SIPM The Hague, 11 May 1993 (exhibit 72).

249 Urgent Telex from Watts to SIPC London and SIPM The Hague, 11 May 1993 (exhibit 72).

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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