There were a million things I wanted to write about after oral arguments this morning in Kiobel v. Royal Dutch Petroleum, but I’ve forgotten half of them by now, and I’m too tired to say everything I wanted to about the rest.
So this post is not about the whether the ATS provides jurisdiction for the Kiobel plaintiffs’ claim; instead, it’s about the underlying claim itself.
It was made unexpectedly clear to me today that, despite all of my interest in ATS litigation as an academic question, I have little idea about any of the underlying events that gave rise to those cases. After all, most ATS cases get kicked out at the Motion to Dismiss stage, if not sooner — and facts do not matter at that point, beyond what is alleged in the complaint, so why bother?
But this morning I caught a cab to the Supreme Court for the Kiobel arguments, and after debating the relative merits of Papa John’s pizza vs. Pizza Hut pizza with the cab driver, he asked about what I was going to see at the Court. So I told him it was a case about international law, for claims that had been brought against Shell for its activities in Nigeria.
And he said, “Oh, I know about that. I’m from Ogoniland, the oil companies have done a lot of things there too.”
Well, damn. It turned out he’d been born in Ogoniland, although he’d moved with his parents to somewhere in eastern Nigeria when he was young, before later moving to the U.S. as an adult. He hadn’t heard about the Kiobel case, though, or at least not this particular version of the litigation against Shell, but he seemed to know just about everything there was to know regarding Kiobel’s underlying events.
He talked about the Abacha regime, and what Nigeria had been like under him, and also about Ken Saro-Wiwa, and the books Saro-Wiwa had written, and what his death had meant. His summary of the events surrounding the execution of the Ogoni Nine was bleak: “Saro-Wiwa had an education, and he thought things could be changed. So Abacha had to kill him.”
It was hard not to be conscious of the jarring contrast between the cab driver’s summary of the events preceding Kiobel, and the attorneys’ sterile arguments before the Court a short time later regarding the exact same matter. So, instead of reading more about the ATS today, I’ve largely been looking into Shell’s involvement in Nigeria instead. There is far more out there than can possibly be summed up in a single post, but what does exist looks pretty ugly for Shell. Unfortunately, it’s impossible to tell at this point precisely how much culpability Shell bears for the human rights violations in Nigeria under the Abacha regime, as much of the relevant documentation has not been released into the public record. But based on what is publicly available, it seems pretty likely that, regardless of whether Shell was committing human rights abuses, Shell certainly didn’t oppose them, just so long as there was no resulting interference with its business operations.
Consider this memo from a security officer in Rivers State, where Ogoniland is located:
- SHELL OPERATIONS STILL IMPOSSIBLE UNLESS RUTHLESS MILITARY OPERATIONS ARE UNDERTAKEN FOR SMOOTH ECONOMIC ACTIVITIES TO COMMENCE. [...]
FINANCIAL IMPLICATIONS: [...]
- PRESSURE ON OIL COMPANIES FOR PROMPT REGULAR IMPUTS [sic] AS DISCUSSED.
Ouch. Even if Shell didn’t think it was lining the pockets of Nigerian officials, the Nigerian officials seem to have been expecting a different arrangement. Not to mention, shortly before that memo was written, records show that Shell had paid that same officer an “honorarium”, along with the rest of his squad, for an armed conflict they had engaged in on Shell’s behalf.
Even in incidents where it cannot be shown than Shell was acting as an aider and abettor of human rights abuses, it is obvious that Shell was an opportunistic player who was happy to use the humanitarian crisis for its own benefit, when it was able to do so. For instance, Brian Anderson, a Shell exec and defendant in a prior ATS case, openly promised aid to Ogoni activists in exchange for their cooperation with Shell’s policies. In a memo regarding a conversation with Ken Saro-Wiwa’s brother, after Saro-Wiwa’s arrest and three months before his execution, Anderson wrote the following:
“I offered Owens Wiwa [Saro-Wiwa's brother] the possibility that we would be prepared to put in some humanitarian aid in exchange for the undertaking by his brother to soften their official stance … you will recall the response was a frosty one (martyrdom rather than concessions).”
True, that memo is hardly damning in terms of international law violations, but it goes a long ways towards showing Shell’s general attitude to the human rights abuses that were occurring at the time. Anderson, in his Motion to Dismiss the ATS suit, tried to spin this into a claim that “Mr. Anderson engaged in ‘quiet diplomacy’ to attempt to secure fair treatment and ultimately clemency for Mr. Saro-Wiwa and the rest of the Ogoni Nine,” but the only documentary records from Shell expressing any concern with Saro-Wiwa’s fate are memos discussing the PR implications of his execution.
No wonder Shell fears engaging in American-style discovery. I doubt it would be pretty for them.