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Litigation: KIOBEL AND OTHERS V SHELL

Esther Kiobel and Victoria Bera sit with their lawyer as 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

 KIOBEL AND OTHERS V SHELL

Shell’s operations in the Niger Delta were first, and most effectively, put under the spotlight in the 1990s by Ken Saro-Wiwa, an acclaimed Nigerian writer. Saro-Wiwa led a community organisation in his home area, Ogoniland, called the Movement for the Survival of the Ogoni People (MOSOP). MOSOP said that while outsiders had grown rich on the oil that was pumped from under their soil, pollution from oil spills and gas flaring had, “led to the complete degradation of the Ogoni environment, turning our homeland into an ecological disaster.”10

In January 1993, MOSOP declared that Shell was no longer welcome to operate in Ogoniland.11 Shell accused Ken Saro-Wiwa of exaggerating the scale of the pollution. It encouraged and solicited the intervention of the Nigerian military, who at the time ruled the country, to deal with the protestors, despite the likelihood that this would result in serious human rights abuses.12 In 1995, following a blatantly unfair trial in Port Harcourt, Ken Saro-Wiwa and eight other men (commonly known as the “Ogoni Nine”) were hanged, accused of involvement in murder.13

One of the men hanged alongside Ken Sao-Wiwa was Dr Barinem Kiobel, a government official from Ogoniland. He was not a member of MOSOP but personal correspondence seen by Amnesty International shows that he had courageously tried to use his influence to prevent human rights abuses being committed, even after he was jailed.14

In 2017, Dr. Kiobel’s widow Esther brought a claim against Shell in the Netherlands along with three other widows of the “Ogoni Nine”: Victoria Bera, Blessing Eawo and Charity Levula.15 This case is currently in front of the Dutch courts. The women are claiming damages for harm caused by Shell’s actions, and a public apology.

“I need the truth to be heard. l will continue fighting even if it takes my last breath – to see my husband exonerated for a crime he did not commit,” Esther Kiobel explained.16

She accuses Shell of colluding with the Nigerian military authorities in human rights abuses during the government’s campaign to silence the protest movement, including the unlawful arrest, detention and execution of her husband, Dr Kiobel. She first initiated proceedings against Shell in the USA, where she was granted asylum, in 2002. Shell challenged the case on jurisdictional grounds. The US Supreme Court eventually ruled in Shell’s favour in 2013, holding that the US courts were not the appropriate forum to hear a case involving foreign parties in events that took place overseas. This followed a 1996 civil case against Shell by relatives of Ken Saro-Wiwa and others, which Shell settled out of court in 2009 for 15.5 million US dollars without an admission of liability.17 The US courts never examined the question of what Shell’s role in human rights violations was. The Nigerian courts have also never examined this.

This issue is now before the Dutch courts. At the case’s first hearing in February 2019, Esther Kiobel and Victoria Bera gave moving testimonies regarding their late husbands and subsequent struggles for justice. It was the first time either had an opportunity to speak in court.18

The women largely base their case on a mass of internal documents that Shell was required to release during the US proceedings. These documents included details of Shell’s close relationship with the Nigerian authorities in the 1990s, as well as examples of company managers calling for the security forces to intervene to protect pipelines and oil fields, even though they knew that such interventions were likely to end in bloodshed.19 The claimants also allege that Shell offered jobs and money to several witnesses to induce them to provide false testimony incriminating the Ogoni Nine.20

Shell rejected all allegations. It also argued that the court should dismiss the claim on jurisdictional grounds and because the events took place so long ago.21

In May 2019, the court issued an interim ruling, stating that the case was not time-barred and that the court did have jurisdiction. The court ordered that the claimants’ lawyers call witnesses and provide further evidence as to whether Shell bribed individuals to testify against the Ogoni Nine, and whether these testimonies contributed to human rights violations against the claimants or their husbands. The court also ruled that Shell hand over some further internal documents concerning communication within Shell about the trial of the Ogoni Nine.22

The court, however, did not order Shell to release other confidential internal documents, which were requested by Esther Kiobel’s legal team in the case.23 It also dismissed some important allegations made by the claimants, relating to Shell’s close ties with the Nigerian government and the extent to which the company supported the crackdown.

In October 2019, the first witness hearing took place. Three men told the court that Shell and the Nigerian government had given them money and offered them other bribes in order to incriminate the Ogoni Nine.24 A second, and possibly final, witness hearing is expected in March 2020. The date of the ruling is not yet known.

Notes

10. MOSOP, The Ogoni Bill of Rights, article 16, 1990.
11. Ike Okonto and Oronto Douglas, Where Vultures Feast: Shell, Human Rights and Oil in the Niger Delta, p. 119
12. Amnesty International, A Criminal Enterprise? p46 and Conclusion.
13. Amnesty International, In The Dock, 2017 (Index: AFR 44/6604/2017), https://www.amnesty.org/en/documents/afr44/6604/2017/en/ (hereinafter Amnesty International, In The Dock).
14. Kiobel’s private correspondence show that in the months prior to his arrest, he had helped communicate concerns about the human rights situation in Ogoniland to Lieutenant-Colonel Komo, the military administrator of Rivers State. Even after his arrest, Kiobel campaigned to improve conditions in his home area, writing to Komo to appeal for a military withdrawal from Gokana (in Ogoniland) because of “indiscriminate shootings, killing of innocent persons.” (Letter from Kiobel to Komo, 3 June 1994).
15. Amnesty International, In The Dock.
16. Amnesty International, I will fight to my last breath” – Esther Kiobel on her 22-year battle to get Shell in court, 29 June 2018, https://www.amnesty.org/en/latest/news/2018/06/i-will-fight-to-my-last-breath-esther-kiobel-on-her-22year-battle-to-get-shell-in-court/
17. For details of both cases see the website of the Center for Constitutional Rights, https://ccrjustice.org/home/what-we-do/our-cases/ kiobel-v-royal-dutch-petroleum-co-amicus
18. Mark Dummett, Ruling due in Esther Kiobel’s epic legal battle against Shell, Amnesty Global Insights, 24 April 2019, https://medium. com/amnesty-insights/ruling-due-in-esther-kiobels-epic-legal-battle-against-shell-cb76bba37e6d.
19. Amnesty International researchers reviewed thousands of pages of internal Shell documents and court depositions released as part of subsequent US litigation. These provide evidence that Shell repeatedly encouraged the Nigerian military and police to take action to deal with community protests when the company knew this put lives at risk. On several occasions Shell provided logistical assistance to military or police personnel, including transport. Without transporting the military or police to areas where community protests were occurring, it is likely that the subsequent violence would not have happened. Finally, Shell’s relationship with the Nigerian authorities at the time gives rise to questions about its complicity or involvement in the violations and crimes. The company had significant access to senior figures and was at times in daily contact with parts of the security forces. None of the hundreds of internal documents analysed reflect any attempt by Shell to express concern about the violence in Ogoniland. As a result, Amnesty International considers that Shell and specific executives should face investigation, with a view to prosecution, over their involvement in the crimes committed by the Nigerian military in Ogoniland in the 1990s. See Amnesty International, A Criminal Enterprise.
20. Prakken d’Oliveira, Shell summoned to court for involvement in unlawful executions in Nigeria, 29 June 2017, https://www. prakkendoliveira.nl/en/news/2017/shell-summoned-to-court-for-involvement-in-unlawful-executions-in-nigeria
21. Shell, Statement of Defence, SPDC et al V Kiobel and Others, 11 April 2019, on file with Amnesty International.
22. Prakken d’Oliveira, Interlocutory verdict in Kiobel and others vs Shell, 2 May 2019, https://www.prakkendoliveira.nl/en/news/2019/interlocutory-verdict-in-the-kiobel-case
23. Prakken d’Oliveira, Interlocutory verdict in Kiobel and others vs Shell, 2 May 2019, https://www.prakkendoliveira.nl/en/news/2019/ interlocutory-verdict-in-the-kiobel-case (accessed22 August 2019).
24. Amnesty International observation of the hearing.

FULL REPORT

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