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Kiobel Writ: PROCEEDINGS IN THE UNITED STATES

The defendants were accused of complicity in various human rights violations and crimes committed against the Ogoni in Nigeria, including summary executions, crimes against humanity, torture, inhuman treatment, arbitrary arrest and detention, criminally negligent homicide, indecent assault and ill-treatment. In the case against Royal Dutch/Shell it was also argued that the company acted contrary to the Racketeer Influenced and Corrupt Organizations (RICO) Act. On 8 June 2009, with the trial on the point of starting, Shell and the claimants agreed an out-of-court settlement. Shell paid the claimants a sum of $15.5 million in damages. 

 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 is provided after the extracts.

PROCEEDINGS IN THE UNITED STATES

5.1 Introduction

120. Following the execution of their husbands, the claimants were subject to constant threats and harassment by the Nigerian regime.162 Esther Kiobel, like many other Nigerians who became victims of Shell and the military regime, resettled in the United States from the refugee camp in Benin. In the United States two groups of victims and surviving dependants demanded damages from Shell in a civil action. The Saro-Wiwa case ended in an out-of-court settlement (see section 5.2). In the case brought by inter alia claimant 1, Esther Kiobel, the American Supreme Court ultimately did not consider that the American courts had jurisdiction to judge the case (see section 5.3). read more

Kiobel Writ: Death penalty for the Ogoni 9

THE OGONI 9 SHOW TRIAL

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 is provided after the extracts.

4.6 Death penalty for the Ogoni 9

  1. On 31 October 1995 the tribunal imposed the death penalty on nine suspects.
  2. Kiobel’s father sent a letter to Abacha seeking clemency on 7 November 1995 (exhibit 11), wherein he writes: “there is a misunderstanding, he tries to make peace”.151 The wives of those sentenced to death, including Esther Kiobel and Victoria Bera, also made an appeal to Abacha on 8 November 1995 (exhibit 12):
    “As Your Excellency is no doubt aware there is no right of appeal against the judgment of the Tribunal that convicted and sentenced our husbands so there is no forum to test the correctness or otherwise of the said decision. Besides, our husbands have to do without the services of lawyers of their choice through no fault of theirs mid way their trial; Even at the point of conviction our husbands still maintained and we are convinced of their innocence. […] Let your verdict not make us widows and our children fatherless.”152
  3. The wives explicitly refer to the lack of the possibility to initiate an appeal. The Decree of 1987 after all rules out a (more senior) court, independent of the tribunal and the regime, hearing the case again in its entirety and rectifying any legal errors. Section 7 of the Decree does say that any sentence imposed by the tribunal may not take effect until confirmed by ‘the confirming authority’.153 However, this authority cannot overturn the sentence. It is also unclear whether refusal of confirmation is possible and whether refusal would be the same as acquittal.
  4. The authority required to confirm the findings of the tribunal, the Armed Forces Ruling Council, was part of the military regime. At the time of the trial the powers of this body had transferred to the Provisional Ruling Council (PRC), newly set up by Abacha.154 The members of the PRC met on 8 November 1995. A memo of the meeting (exhibit 176) shows that Abacha was the chairman of this meeting and that:
    “He was of the view that no sympathy should be shown on the convicts so that the sentence would be a lesson to everybody. He stated that the Ogoni issue had lingered on for a very long time and should be addressed once and for all.”
  5. The Secretary-General of the United Nations said of the PRC: “The PRC confirmed the conviction and sentence even before the records of the trial were received,” and “the haste with which the sentences were confirmed by the Provisional Ruling Council PRC) implies that the Government had made up its mind and was not interested in a fair consideration of the case.”155 The memo of the meeting also shows that reconsideration of the sentence imposed by the tribunal was never an option for the members of the PRC. To prevent the regime coming across as weak, the execution had to be put into effect as soon as possible.156
  6. Meanwhile, complaints about the trial were also considered by the African Commission on Human and Peoples ́ Rights.157 When the African Commission became aware that the sentence had been confirmed by the PRC, provisional measures were imposed on the Nigerian government to prevent irreparable damage: Nigeria was to postpone the executions until the Commission had had the opportunity to discuss the case with the government.158 This call was ignored by the Nigerian regime and the next day, 10 November 1995, the nine convicts, despite national and international protests,159 were brought to death by hanging in the Federal Prisons in Port Harcourt.160
  7. The African Commission stated regarding the executions and the ignoring of the provisional measures: “Execution in the face of the invocation of rule 111 defeats the purpose of this important rule. […] This is a blot on the legal system of Nigeria which will not be easy to erase. To have carried out the execution in the face of pleas to the contrary by the Commission and world opinion is something which we pray will never happen again. That this is a violation of the Charter is an understatement.”161
Extracts end Footnotes

151 Exhibit 11: Plea for clemency for Dr Barinem Kiobel, 7 November 1995.

152 Exhibit 12: Plea for clemency on behalf of our convicted husbands, 8 November 1995.

153 Decree No. 2 1987, section 7 (see Birnbaum (exhibit 255), para. 8.14: “Any sentence imposed by the Tribunal shall not take effect until the conviction or sentence is confirmed by the confirming authority. The confirming Authority may confirm or vary the sentence of the Tribunal.” read more

Kiobel Writ: OGONI 9 SHOW TRIAL: ill-treatment of lawyers and family members

On 19 February 1995, when Esther again tried to visit her husband, she was locked up by Okuntimo and tied naked to a chair. Then she was beaten with a koboko and sexually harassed and assaulted by Okuntimo.

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 is provided after the extracts. 

THE OGONI 9 SHOW TRIAL 

4.5 Ill-treatment of lawyers and family members

Both lawyers and family members of the suspects were seriously intimidated, threatened and even ill-treated during the trial.138 On several occasions the lawyers were denied access to the heavily protected court.139 For example, at the session of 21 February 1995 Fawehinmi related how that morning he was forced by Lt. Hassan, who worked directly under Okuntimo, under threat of violence, to board a police bus. Lawyer Falana was beaten in the same incident.140 These two lawyers were also unlawfully detained by the regime during (the run-up to) the trial.141 Oso, Kiobel’s lawyer, related how he became the victim of serious intimidation. On arrival at the courthouse he was told to leave after which his driver was beaten up and his car destroyed.142 That same morning Saro-Wiwa’s 74-year-old mother was beaten up on the instructions of Lt. Hassan when she tried to enter the court.143 When Kiobel was asked on 22 June 1995 whether he could arrange another lawyer since Oso had stopped his defence, he stated, to the annoyance of Judge Auta, how his family was being harassed by the army:

“I have been detained since last year. I have no access to anybody to go and get any further information for anything or get a capable lawyer who will be able to stand to defend me. Surprisingly, Thursday last week, even my family at home and secretary to the Chief of my village are being chastised by the Armed Forces because of this matter.”144 read more

Kiobel Writ: Manhunt in Ogoniland

The UN rapporteur for extrajudicial, summary or arbitrary executions had the following to say about this: “Renewed military attacks against Ogoni villages were reported to have occurred during the first two weeks of June 1994, leading to the killing of at least 40 civilians. Fears were expressed for the lives of a large number of others who were reported to have been detained”

By John Donovan

The numbered paragraphs below 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. read more

Destruction of Ogoniland by Shell

The Politicization of a Depraved Ogoni Remediation Project

By Anthony Aalo

To remediate is to correct or make right. Environmental remediation deals with the removal of pollutants or contaminants from environmental media such as soil, underground water, sediment, or surface water. An Ogoni elite Barinua Wifa (SAN), rightly puts it this way: “Remediation is when you put a person in the position he was before an injury”

Before the deliberate destruction of Ogoniland by Shell, fishing and farming were the main means of livelihood undertaken daily by the Ogonis. The environment flourished with green vegetation, which supported families and small businesses. The Ogoni region, prior to the destruction was the largest food supplier in the entire eastern region of Nigeria and had the largest mangrove vegetation in the gulf of Guinea. read more

Kiobel Writ Extract: Nigeria in the 1990s: The Nigerian Junta

…Shell continued to collaborate closely with the regime during Abacha’s period of government and it regularly offered the regime a helping hand. Shell was prepared for instance to procure weapons, to maintain a network of informants and to make its means of transport available for military operations.

By John Donovan

The numbered paragraphs below 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‘. The famed writer and community leader, Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text. read more

Kiobel Dutch Case: Shell in Nigeria

By John Donovan

The numbered paragraphs below are all extracted from a 138 page Writ of Summons. It was served on multiple Royal Dutch Shell companies on or around 28 June by the Dutch Human Rights law firm Prakken d’Oliveira acting on behalf of 4 widows led by Esther Kiobel. The widows hold Shell liable for the murder of their husbands, who were all members of the ‘Ogoni Nine‘.

EXTRACTS

3.1 Shell in Nigeria

38. The Anglo-Dutch company Shell has played an active role in what was then still British Colonial Nigeria since 1936, where it was involved in the search for oil fields and the first oil extraction in the Niger Delta from the 1940s. When a large-scale oil industry got going in Nigeria from 1958 Shell became the main player.28 Even after the independence of Nigeria in 1960 oil exploitation in Nigeria remained largely in Shell’s hands. read more

Taking on a giant – Shell in Ogoniland, Nigeria

Published on Jun 29, 2017

One woman is squaring up to Shell. Stand with her.

http://amn.st/60058ouD3

Nigeria’s Esther Kiobel is taking on one of the world’s biggest oil companies – Shell – in a final fight for justice over her husband’s killing. She’s pursued them for 22 years, accusing Shell of colluding in her husband’s 1995 execution.

Shell’s quest for oil has devastated the once fertile land in the Niger Delta. Communities have been left destitute from decades of pollution. Oil spills have ravaged farmland and rivers, contaminating their water and putting their health at grave risk. In the 1990s, Shell seemingly would stop at nothing to make sure they were turning a profit. The company urged Nigeria’s military government to deal with environmental protests – knowing full well what that could mean. The military killed and tortured people in a brutal crackdown that culminated in the 1995 sham trial and hanging of nine Nigerian men, including Esther’s husband, Dr Barinem Kiobel. read more

Potent carcinogen contaminated drinking water used by millions, says report

Abigail Elise: National Curator. Apr 20, 2017

WASHINGTON — Shell Oil Co. and Dow Chemical hid a cancer-causing chemical in two commonly-used pesticides that contaminated the drinking water of millions of people in the state of California, according to lawsuits detailed in a report from the Environmental Working Group earlier this month. TCP, a poisonous insecticide gas, was used for decades in the pesticide Telone, made by Dow, and D-D, made by Shell.

FULL ARTICLE

APRIL 2017: TOP U.S. LAW FIRMS BATTLING TO FRUSTRATE ESTHER KIOBEL LITIGATION AGAINST SHELL

Esther Kiobel (left) addressing supporters

15 YEARS ON, SHELL STILL FRUSTRATING LITIGATION TO HOLD IT ACCOUNTABLE FOR EVIL DEEDS IN NIGERIA

By John Donovan

Cravath, Swaine & Moore LLP – a global law firm, which has Shell as a long term client, has recently hired another global law firm – Hogan Lovells US LLP – to represent it in an attempt to frustrate litigation being brought against Shell in the USA and the Netherlands. 

We have published several articles in recent months concerning a petition brought in the US courts on behalf of Esther Kiobel.  

She is seeking access to more than 100,000 Shell internal documents gathered by Shell and handed to Cravath. This happened as part of the discovery process in the litigation Esther brought against Shell in 2002, in the US courts. Among many serious allegations was a claim that Shell was complicit in the murder of her husband, a leader of the Ogoni people in Nigeria.  read more

Latest Shell News

Shell’s top oil trader defends North Sea Brent activity: Financial Times

Royal Dutch Shell’s top oil trader has launched a staunch defence against accusations that the company’s activity in the North Sea crude market had skewed the benchmark that underpins global oil prices. Shell is alleged to have traded aggressively in the region last year, contributing to heavy losses among rivals…

Shell Throws The Blame To Residents on Slow Cleanup of Oil Spills In Nigeria: The Science Times

EXTRACT: Oil and petroleum giant Shell blamed the Nigerian residents in the Delta community for its slow response in cleaning up the two oil spill incidents in 2008. Amidst almost a decade-long effort, Shell wasn’t able to fully contain the spill. However, there is a possibility that the clean-up might start next month. read more

Shell’s Nigerian Quagmire

Bearing in mind the avalanche of recent news stories about Shell’s Nigerian problems, it is interesting to reflect on the content of a 93-page report by WAC Global Services commissioned by Shell over a decade ago. I can only assume that no one at Shell bothered to pay attention to the warnings in the report arising from its evil activities feeding corruption, violence and pollution.

Some extracts

(Please note SCIN = SHELL COMPANIES IN NIGERIA)

From page 8

It is easy to conclude that any type of company or trade bringing resources to the Niger Delta will be confronted with the same problem. While this view is valid, it is also true that the manner in which the SCIN operates and it staff behaves creates, feeds into, or exacerbates conflict. After over 50 years in Nigeria, it is therefore reasonable to say that SCIN has become an integral part of the Niger Delta conflict system. read more

Shell News Stories Friday 24 March 2017

Shell sells onshore Gabon oil assets to Carlyle for $587 mln: Reuters/Daily Mail

EXTRACT: For Shell, the deal marks a further step in a $30 billion asset disposal programme to help cut debt after its $54 billion acquisition of BG Group last year. The Anglo-Dutch oil company has sold assets for more than $15 billion since 2016.

WSJ: Shell report cites “astonishingly high” pollution from Nigerian oil spills: Seeking Alpha

EXTRACT: Royal Dutch Shell (RDS.A, RDS.B) oil spills that have not been cleaned up for more than eight years have contributed to “astonishingly high” levels of pollution in a Nigerian community, WSJ reports, citing a consultant who helped produce a confidential damage assessment for the company and its partners. The former director of the cleanup project says Shell has denied him permission to publish the study’s results, which dictated a need for health screenings in the Bodo community. read more

Employees Exposed to Benzene Contamination at Shell Nyhamna Gas Plant

An investigation by the safety division at the Shell Nyhamna Gas Plant in Norway discovered that many employees carried out maintenance in areas where Benzene concentration was far over the limit for required safety gear, such as over-pressured fresh air mask, and total body protection. The investigation found that from October 2007 until September 2014 Shell had not enforced Norwegian law requiring systematic chemical monitoring. Benzene is carcinogenic to humans, and no safe level of exposure can be recommended.  read more

Shell, the oil giant run by unscrupulous hypocrites 

Congratulations to The Guardian on their story exposing the hypocrisy of Royal Dutch Shell in relation to climate change. 

‘Shell knew’: oil giant’s 1991 film warned of climate change danger

Shell subsequently invested billions in highly polluting exploration and production activities around the world. The Guardian provides examples. 

The gap between Shell propaganda and what it actually does is even more striking bearing in mind the core principles of Shell’s claimed ethical code of honesty, integrity, transparency etc. read more

A deserved shitstorm of Shell Nigerian litigation

A boatload of heavily armed Shell employees? Photograph: Veronique de Viguerie/Getty Images

Shell is facing what Americans might describe as a shitstorm of lawsuits arising from its Nigerian activities since the 1950’s. Litigation is current or pending in Nigeria, the USA, Italy, the UK and the Netherlands.

According to Wikipedia, shitstorm is a vulgar dysphemism for a chaotic and unpleasant situation. It does seem appropriate in a reputational nightmare of Shell’s own making. Related human rights allegations against Shell and the evil Nigerian regimes it has supported include torture, murder, toxic pollution, spying and corruption on a grand scale. read more

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