KIOBEL V. SHELL: Hague District Court Rules Against Nigerian Human Rights Activists
Author: Laura Libertini
Department: Europe Team
On 23 March 2022, a Nigerian human rights advocate, Esther Kiobel, lost a civil case against the British-Dutch oil giant Shell. Shell was accused of aiding the Nigerian government in the violent repressions of the peaceful protests against oil exploitation in the Ogoni Region, in the river Niger delta, in 1993-1994. At that time, the Ogoniland region was being extensively exploited by multiple oil corporations, causing widespread pollution and acute damage to the land inhabited by the Indigenous population of the Ogoni. Consequently, the Movement for the Survival of the Ogoni People (MOSOP) was created as a direct response to huge oil exploitation in the region (Wetzel, 2018).
In 1994, after a secret and sham trial, the senior government official Barinem Kiobel, MOSOP leader Ken Saro-Wiwa and the other seven members of the movement were convicted of murder and sentenced to death. It has been reported that before the nine activists were imprisoned, the president of Shell Nigeria had met with General Sani Abacha, the Nigerian president at the time, to discuss the “problem of Ogoni and Ken Saro-Wiwa”. Moreover, it was not the first time that Shell described the demonstrations in Ogoniland as a “problem”, highlighting and reporting the effects of the MOSOP protests on the economy to the Nigerian authorities (Amnesty International Italia, 2017).
In addition, confidential Shell documents revealed that the oil company was well aware of the injustice of the trial against the activists and that, in all probability, Ken Saro-Wiwa would be found unfairly guilty. Nonetheless, in November 1995, the nine Ogoni were executed by hanging, their bodies defaced and thrown in unmarked graves. The case has gone down in history as the “Ogoni Nine”, the culmination of the ruthless crusade started by the military regime to repress peaceful environmental protests of the MOSOP.
The case was initially brought by the Social and Economic Rights Action Center and the Center for Economic and Social Rights in front of the African Commission of Human and People’s Rights, holding Nigeria responsible for the extensive pollution affecting the Ogoniland territory and the local Indigenous population. It also held the Nigerian State accountable for committing serious violations of human rights, including the right to life, crimes against humanity, torture, rape, and arbitrary arrest. However, the African Commission had no way to judge the responsibility of the transnational corporations (TNCs) involved in the case, as the African Commission – as well as the European Court of Human Rights – does not have the right to rule in cases involving TNCs, only States (African Commission on Human and People’s Rights, 2001).
The Commission declared that “the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards” and that “the Nigerian government has condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies.” The decision by the African Commission emphasised how the support of the military to the oil companies had resulted in severe breaches of fundamental human rights, for instance, the right to life, freedom, security, the right to have a cause heard, and the right to have a “general satisfactory environment favourable to their development” enshrined in Articles 2, 4, 6, 7 and 24 of the 1981 African Charter on Human and Peoples’ Rights.
Senior government official Barinem Kiobel and Esther Kiobel married in the early 1990s, and while he was in the U.K. for his PhD, Esther witnessed firsthand the widespread pollution in Ogoniland. Barinem Kiobel’s arrest had direct consequences on his family. Esther lost her catering job, and without the support of Barinem and her income, life suddenly got harder. After Barinem’s arrest, she tried to visit him in jail, where Lieutenant Colonel Paul Okuntimo was in charge. He took Esther to another room and propositioned her. She declared that “When I pushed him away, I guess he got upset, and slapped me. He has a big hand, and that was like fire coming out. I slapped him back. He started a fight with me, left me half-naked, and called the army.” She continued by stating that “They dragged me, so there were all these cuts… and they tied me like an animal.” (Amnesty International, 2017).
After the events of 1993-1994, Esther Kiobel and her family fled to the United States and applied for political asylum for fear of being persecuted by the Nigerian government. She declared that “Some people came to me and told me you have to leave for your dear life. Even if you do not care for your life, care for your children, care for your loved ones. So I had to run for safety to the Benin Republic, where I became a refugee.” (Amnesty International, 2017). After they were granted political asylum in the U.S, in 2002, Kiobel filed a case against Shell to the U.S. District Court for the Southern District of New York under the Alien Tort Statute, alleging that Dutch, British and Nigerian corporations aided and abetted the Nigerian government in committing violations of the law of nations in Nigeria. The defendants were accused of extrajudicial killings, crimes against humanity, torture and ill-treatment, arbitrary arrest and detention violations of the rights to life, freedom, security, and association, forced exile, and property destruction. However, the District Court dismissed several claims advanced by the plaintiffs. Later, the U.S Court of Appeals for the Second Circuit dismissed the entire complaint arguing that the law of nations did not recognise corporate liability. After the rejection of the Second Circuit Court, Esther Kiobel appealed the decision to the U.S. Supreme Court. In April 2013, the Supreme Court confirmed the judgement of the Second Circuit Court (Wetzel, 2018).
In June 2017, Kiobel, Victoria Bera, Blessing Eawo, and Charity Levula started a civil action against Shell in the Netherlands, the home country of the company. They argued that the company was involved in the 1995 killings of their husbands after contesting the oil-extraction operations in the Ogoniland region and the Nigerian government on the consequences of oil pollution. Shell has denied any participation in the executions. On 1 May 2019, the District Court of The Hague declared it has jurisdiction to hear the case, ruling that Shell should deliver confidential internal documents to the plaintiffs, representing a big step forward for the Kiobel v. Shell case (Business & Human Resource Centre, 2017). In the same year, during the hearing, three witnesses declared they had received money from the oil company and the Nigerian government to indict the Ogoni Nine. However, the Court ultimately ruled that there was poor evidence to undoubtedly prove Shell’s involvement. In September 2020, the Court heard more witnesses against Shell for its connection to the wrongful arrest, torture, and sentencing of the Ogoni Nine. On 23 March 2022, the District Court ultimately did not rule in favour of Esther Kiobel’s claims in the civil lawsuit lodged against Dutch-British oil giant Shell, due to scarce evidence to connect Shell to bribing witnesses in committing perjury at the “Ogoni Nine”’s 1995 trial that caused their execution.
Despite 27 years of denial from Shell concerning its involvement in the arrests, torture, and death of the Ogoni Nine, Esther Kiobel has no doubts over the part that Shell played in her husband’s death, believing the oil company responsible. She affirmed that “Shell causes pollution in Ogoniland, and they refuse cleaning. They just want gain, they need a bigger gain, so they believe they can get rid of whoever they want to, and go in there, dredge the oil. That’s what they believe.” (Amnesty International, 2017)
The case reveals atrocious human rights violations, with the case of the Ogoni Nine reflecting only one facet of the treatment endured by the entire Ogoni Indigenous community. It has been suffering the consequences of oil-related pollution activities, contamination of its water and lands, which caused serious short and long-term health problems, including skin infections, gastrointestinal and respiratory disorders, increased risk of cancers, neurological and fertility issues. Mark Dummett, Amnesty International’s Director of Enterprise and Human Rights, declared on the Dutch Court decision that “Today’s verdict is disappointing, but these extraordinary women will not give up. Their voices have been heard. We must praise their resilience and tireless commitment to telling the truth. They have brought to light the global culture of impunity enjoyed by multinational corporations for human rights violations, and this is priceless” (Amnesty International, 2022).
We live in an interconnected and globalised world, where the rise of international businesses is an essential trait of the globalisation process, resulting in vast transnational business chains controlled by multinational enterprises. According to the United Nations Guiding Principles on Business and Human Rights (UNGPs) “a business enterprise is controlled by the State or where its acts can be attributed otherwise to the State, an abuse of human rights by the business enterprise may entail a violation of the State’s own international law obligations” (United Nations Guiding Principles on Business and Human Rights, 2011). In fact, business enterprises should respect human rights, intended as internationally recognized human rights. There are numerous sets of rules establishing human rights regulations, environmental issues, and anti-corruption policies that have been developed at the international level. The United Nations Guiding Principles on Business and Human Rights, the Ten Principles of the United Nations Global Compacts, and the OECD Guidelines for Multinational Enterprises are just a few examples. Yet, they represent non-binding instruments, and as such allow transnational corporations to act ruthlessly, violating human rights principles and exploiting the natural environment. The Kiobel v. Shell case clearly demonstrated that the level of economic power and influence of the oil company was so significant and vast that it overshadowed the authority of the state itself, allowing the murder of nine innocent people and the devastation of the natural heritage of the Ogoniland.
Sources and further reading:
African Charter on Human and People’s Rights, 1981.
African Commission on Human and People’s Rights Communication No 155/96 (2001, October 27). The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria.
Amnesty International. (2022, March 23). Nigeria, causa persa contro Shell ma la lotta per la giustizia andrà avanti. Amnesty International Italia. Retrieved on April 2, 2022 from https://www.amnesty.it/nigeria-causa-persa-contro-shell-ma-la-lotta-per-la-giustizia-andra-avanti/
Amnesty International. (2017, June 29). One woman vs Shell. Amnesty International. Retrieved on April 2, 2022 from https://www.amnesty.org/en/latest/campaigns/2017/06/one-nigerian-widow-vs-shell/
Amnesty International Italia. (2017, June 29). Shell “complice” nel caso dei “nove ogoni.” Amnesty International Italia. Retrieved on April 2, 2022 from https://www.amnesty.it/shell-complice-nel-caso-dei-nove-ogoni/
Business & Human Resource Centre. (2017). Shell lawsuit (re executions in Nigeria, Kiobel v Shell, filed in the Netherlands). Business & Human Rights Resource Centre. Retrieved on April 2, 2022 from https://www.business-humanrights.org/en/latest-news/shell-lawsuit-re-executions-in-nigeria-kiobel-v-shell-filed-in-the-netherlands/
Donovan, J. (2009, May 31). Shell execs accused of “collaboration” over hanging of Nigerian activist Ken Saro-Wiwa. Royal Dutch Shell Plc.com. Retrieved on April 2, 2022 from https://royaldutchshellplc.com/2009/05/31/shell-execs-accused-of-collaboration-over-hanging-of-nigerian-activist-ken-saro-wiwa/
The Guardian. (2009, June 10). Ken Saro-Wiwa v Shell oil unfurls: how the Guardian covered it. The Guardian. Retrieved on April 2, 2022 from https://www.theguardian.com/world/blog/2009/jun/10/guardian-coverage-of-saro-wiwa-story
Tucci, S. (2020, September 24). Netherlands: Court hears witnesses in landmark case against Shell for its involvement in the unlawful arrest, torture and execution of opponents in Nigeria. Business & Human Rights Resource Centre. Retrieved on April 2, 2022 from https://www.business-humanrights.org/en/latest-news/netherlands-court-hears-witnesses-landmark-case-against-shell-its-involvement-unlawful-arrest-torture-and-execution-opponents-nigeria/
United Nations Guiding Principles on Business and Human Rights, 2011.
Wetzel, J. R.M. (2018). Human Rights in Transnational Business Translating Human Rights Obligations into Compliance Procedures. Cham Springer International Publishing Springer.