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Ruling due in Esther Kiobel’s epic legal battle against Shell

By Mark Dummett, Amnesty International Business and Human Rights Researcher

On 1 May, a court in The Hague, the oil multinational’s home town, will deliver a ruling on whether a case brought by Esther and three other Nigerian women over Shell’s role in their husband’s deaths can proceed.

The four widows accuse Shell of instigating a brutal crackdown by the-then military regime against peaceful protesters in Ogoniland, in Africa’s most valuable oil-producing region, the Niger Delta, in the 1990s. The protests were over pollution, the chronic lack of development, and the unfair distribution of oil wealth.

The ensuing crackdown culminated in the unlawful arrest, detention and execution of the four women’s husbands in November 1995, alongside five other men, including Ken Saro-Wiwa, the writer and activist who led the protests.

The Nigerian regime falsely accused the “Ogoni Nine” of involvement in a murder, and the men have never been exonerated, despite widespread criticism of the blatantly unfair trial, including by Amnesty International.

With little hope of achieving justice back home or of bringing a case against former members of the Nigerian government, Esther Kiobel and the other widows have instead been seeking to hold Shell accountable for its involvement in the human rights violations against protesters in Ogoniland. They are seeking a public apology as well as compensation.

Esther first sued Shell in the US, where she was granted asylum, in 2002. Shell fought the case on jurisdictional grounds all the way through the courts, and the Supreme Court eventually dismissed it in 2013. The US courts never got to examine the facts of the case or Shell’s responsibility. Four years later, Esther sued Shell in the Netherlands, where it is headquartered, along with the three other widows, Victoria Bera, Blessing Eawo and Charity Levula.

At a hearing in February, Esther and Victoria Bera were both allowed to speak to the court, and gave moving testimonies regarding their late husbands and subsequent struggles for justice. It was the first time either had had such an opportunity. Blessing and Charity, who still live in Nigeria, were refused visas to travel to Europe.

The women largely base their case on a welter of internal documents that Shell was forced to release during the US proceedings. These include examples of Shell managers calling for the Nigerian security forces to intervene to protect its pipelines and oil fields, even though staff knew that such interventions were likely to end in bloodshed.

Shell was the most important company in Nigeria at this time and operated in a joint venture with the state-owned oil firm. Documents show that a top priority for the company was maintaining a close relationship with the government at all levels. For example, one internal memo shows that on 3 March 1994, the year before the protesters’ execution, Shell paid notorious military commander Major Paul Okuntimo about $1000 as a “show of gratitude and motivation for a sustained favourable disposition towards [Shell] in future assignments.”

This payment was linked to a security operation in Ogoniland which had resulted in one death of a villager. More worryingly, the payment, which Shell described as an “honorarium”, was approved just days after a separate incident, in which Major Okuntimo ordered his men to open fire on protestors outside Shell HQ in Port Harcourt. It is difficult not to see this payment as Shell endorsing and encouraging Major Okuntimo’s actions. Just two months later, this same officer led violent raids on Ogoniland’s villages, during which his troops carried out an unknown number of extrajudicial executions, raped women and girls and detained and tortured many people.

Other documents, released by Shell, minute the private meetings between the head of Shell Nigeria and President Sani Abacha. They show how Shell offered logistical support to the police and army, shared information with the internal security agency, and deliberately and inaccurately portrayed the protestors as violent and unpopular.

These documents provide a unique insight into how Shell’s leadership, spread across Port Harcourt, Lagos, London and The Hague, responded to the Ogoni protests. But the information available is still incomplete, and there are still lots of unanswered questions about Shell’s operations. For its part, Shell insists that all the allegations made against it are false, however the company is fighting hard to prevent the release of further pieces of evidence.

That’s because part of the documents that Shell was forced to disclose have been designated by the parties as “confidential.” These confidential documents were shared with Esther’s former US lawyers at the time, who were going to submit many of them as evidence. But since these documents were marked confidential, the US lawyers were barred from passing them on to Esther’s current Dutch legal team. Esther’s Dutch lawyers have petitioned the court in The Hague to order Shell to release them, and this is one of the issues about which the court will issue a ruling on 1 May.

Shell argues that the court should judge the case solely on the evidence already presented. It says that Esther’s lawyers do not have a “legitimate interest” in these documents and have not explained why they are “relevant to the assessment of the dispute.” Yet without being allowed to see the evidence, it is clearly very difficult for Esther’s lawyers to do so. Although the fact that her US legal team were going to present them as evidence in the proceedings there would strongly suggest that they do indeed bear relevance to the case.

This exemplifies one of the key challenges that the victims of human rights violations, who typically lack wealth and influence, face when trying to hold powerful corporations to account. Namely, to get vital information that is held exclusively by those same corporations.

The challenge was recognised by the UN Committee on Economic Social and Cultural Rights which in an important General Comment in 2017 pointed out that one of the key barriers to remedy for corporate abuse was “the difficulty of accessing information and evidence to substantiate claims, much of which is often in the hands of the corporate defendant”.

Shell claims on its website that its human rights approach is informed by the UN Guiding Principles on Business and Human Rights. These principles note that many barriers to justice “are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise”. While Shell is entitled to challenge the merits of Esther’s case, it should not be allowed to benefit from this imbalance and deprive the parties of important information to resolve the case.

Shell has successfully deployed similar arguments before: for example, in the recent “Okpabi” case, a claim in London by two Nigerian communities against the company over the impact of a series of oil spills. In 2018, the Court of Appeal dismissed this claim due to a lack of evidence demonstrating the “operational control” of the UK and Netherlands-based parent company over its Nigerian subsidiary. Yet detailed information on how Shell operates can only come from within the company itself. The Court of Appeal made its ruling and struck out the case without the benefit of disclosure of critical information. The victims are now appealing to the Supreme Court.

Regarding Shell’s operations in Nigeria in the 1990s, there is similarly critical information that only the company holds, such as the records of its security and transport departments in its Port Harcourt office, as well as minutes of meetings between senior executives. Given the length of time, it is difficult to see that there are any sensitive commercial reasons for keeping these papers secret.

The court in The Hague will decide on 1 May whether the case can proceed, or whether, as Shell argues, there are compelling jurisdictional and technical grounds for throwing it out. This and future decisions should be based on full knowledge of the facts. Shell should release these documents so that Esther’s and the other plaintiff’s rights to have their day in court are fully upheld.

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