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ON TRIAL: SHELL IN NIGERIA: LEGAL ACTIONS AGAINST THE OIL MULTINATIONAL

Cover photo: A Dutch court hears the first arguments in an historic case against Shell, in which the oil giant stands accused of instigating a raft of horrifying human rights violations committed by the Nigerian government against the Ogoni people in the 1990s, on February 12, 2019 in The Hague, Netherlands. © Pierre Crom/Getty Images

Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all.

Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards.

We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations.

Since Shell first discovered oil near the village of Oloibiri in 1956, the Niger Delta has become Africa’s most valuable oil-producing region and the Anglo-Dutch giant has earned billions of dollars.

But Amnesty International’s research over many years has demonstrated that Shell’s Nigeria operations have come at the cost of the human rights of people living there.

Hundreds of oil spills a year from poorly-maintained pipelines and wells, along with inadequate clean-up practices, have damaged the health and livelihoods of the Niger Delta’s many inhabitants, who largely remain stuck in poverty. Starting in the 1990s there have been waves of community protests, but the Nigerian government has brutally repressed them, sometimes with the support of the oil company.

Now, Shell’s Nigeria operations are facing scrutiny like never before, with an unprecedented set of legal cases against the oil company in courts in Europe. Each is expected to reach a conclusion, or other important milestone, in 2020.

This report draws on Amnesty International’s research on the Niger Delta, which dates back more than twenty years. Researchers also spoke to lawyers and human rights and environmental organizations involved in each of the cases. They reviewed court documents, attended hearings in the Okpabi and Kiobel cases, and interviewed the claimants.

Researchers also visited the Niger Delta in August 2019, where they met human rights defenders, environmentalists and representatives of the Ogale and Bodo communities.

In Port Harcourt, Nigeria, activists, partner organizations and Amnesty International called on Shell to own up, pay up and clean up the Niger Delta, as part of a week of action in April 2012. © Amnesty International

THE CASES

In the Netherlands, four Nigerian women are taking Shell to court over what they say was the company’s complicity in the unlawful arrest, detention and execution of their husbands in 1995. This came as the Nigerian military sought to suppress community protests against the oil industry. The men were jailed and then hanged following a blatantly unfair trial, alongside the writer and protest leader Ken Saro-Wiwa. In October 2019, the court heard evidence that Shell paid bribes to individuals in exchange for them falsely testifying against the men. The four widows are claiming compensation and a public apology from Shell. The next, and possibly final, witness hearing is due to take place in The Hague in March 2020.

In May 2020, a final hearing is also expected in the first cases brought against Shell in a European court over its environmental record in Nigeria. In 2008, four Nigerian farmers and Friends of the Earth filed three separate claims in the Netherlands against its parent company, Royal Dutch Shell (RDS), and its Nigeria-based subsidiary, Shell Petroleum Development Company (SPDC) over damage caused by oil spills. These cases also marked the first time that a Dutch multinational had been sued in a Dutch court over the operations of its overseas subsidiaries.

In June 2020, the UK’s Supreme Court will hear an appeal brought by two communities, Ogale and Bille, in another pollution-related case. The court will decide whether it can proceed on the critical issue of whether RDS is liable for the actions of SPDC. Shell claims that RDS is not responsible for the actions of its subsidiary even though it owns 100 percent of SPDC and receives the profits that it makes.

Finally, another community, Bodo, is also involving the UK courts in its battle to get Shell to clean up pollution from oil spills. This community first sued Shell in London in 2012. Three years later, under a court-approved settlement, Shell made an unprecedented payment to Bodo of 70 million US dollars (55 million pounds) for losses caused by two massive spills. At the same time, Shell undertook to clean up Bodo’s waterways, which had been devastated by the giant spills. Due to a lack of progress in this effort, and the ongoing harm suffered by the community, it is threatening to refer the issue back to the High Court in London if the pollution is not cleaned up by mid-2020.

These are civil cases, in which Nigerian individuals or communities are seeking redress from Shell, for the impact that pollution has had, and continues to have, on their human rights. At stake in each of these are potentially tens of millions of dollars in damages, clean-up of oil pollution and legal costs.

A different sort of legal proceeding is also taking place. It is a criminal case, brought by prosecutors
in Italy, over the alleged involvement of Shell, and the Italian oil multinational Eni, in a 1.3 billion
US dollar bribery scheme connected to the transfer of a Nigerian oil licence. The case is also being investigated by law enforcement agencies in the UK, the Netherlands and Nigeria. If found guilty, some former members of Shell staff face jail and the company faces financial penalties.

In this and the other cases, Shell denies the claims.

SHELL’S BUSINESS MODEL ON TRIAL

These cases are not only important for the individuals and communities involved. They could set important precedents on the responsibility of companies for their overseas operations, which would open the way for further litigation not only against Shell but other multinational corporations as well.

They are also placing a much-needed spotlight on Shell’s business model in Nigeria. It is not a coincidence that these cases are all focussing on the same country.

Nigeria’s regulation of the oil industry is undoubtedly weak and lacks independence. Government agencies responsible for industry regulation and enforcement are under-resourced, ineffective and in some cases compromised by conflicts of interest. Its own courts have failed to offer the victims
of human rights abuses a meaningful avenue for seeking justice. Shell has benefitted enormously from extracting oil in such a context where there is little or no government oversight and no effective safeguards.

Shell does not publish a breakdown of its earnings by country, but the profit that flows from Nigeria to its parent company in the Netherlands and the UK is certainly significant. Reuters estimated that it had earned 4 billion US dollars from oil and gas production in Nigeria in 2017, which was around 7 percent of its total global output.

These cases, as well as Amnesty’s research into Shell’s operations over many years, show that while generating these profits, it has operated in a way that has harmed communities and has not effectively remediated the harm it has caused.

Shell has a responsibility to respect the human rights of people in the Niger Delta, including by taking all reasonable steps to prevent spills and then remediate contaminated land and water. Shell should not have to wait for legal action before taking such actions, nor should affected communities have to resort to legal action in order to obtain a remedy.

Pastor Christian Kpandei showing the damage done to his fish farm in Bodo, Nigeria, May 2011. The farm flourished before a massive spill from a Shell pipeline in August 2008, but the pollution destroyed his fish farm, leaving him and his workers without a regular income. © Amnesty International

KEY RECOMMENDATIONS

The Government of Nigeria must significantly strengthen its regulation of the oil industry and guarantee that its regulatory bodies have the necessary enforcement powers, expertise and resources to ensure that companies take all reasonable steps to prevent spills and clean up those that do occur, as required by Nigerian law.

The UK and the Netherlands need to introduce legal reforms to ensure accountability and redress for human rights abuse in the context of the overseas operations of their multinationals.

Shell must improve its operational practices in the Niger Delta, to take all reasonable measures to prevent spills, and then effectively clean up and remediate all spills from its pipelines
and wells in line with Nigerian law and international standards. Shell must ensure that all communities affected by failed or delayed clean-up of oil spills receive adequate compensation for their losses.

EXTRACTED FROM THIS AMNESTY INTERNATIONAL DOCUMENT

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