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Shell lawsuit (re Nigeria - Kiobel & Wiwa)

Kiobel v. Shell

Proceedings in the USA

Nigerian Soldier, By SSGT Paul R. Caron, USAF [Public domain], via Wikimedia_CommonsIn 2002, Royal Dutch/Shell was sued in US federal court by Esther Kiobel, the wife of Dr. Barinem Kiobel- an Ogoni activist who was member of the Movement for the Survival of the Ogoni People (MOSOP) and eleven other Nigerians from the Ogoni region.  MOSOP campaigned against the environmental damage caused by oil extraction in the Ogoni region of Nigeria and for increased autonomy for the Ogoni ethnic group.  Barinem Kiobel and other members of MOSOP were detained illegally in 1994, held incommunicado in military custody, then tried by a special court established by the military government using procedures in violation of international fair trial standards, convicted of murder and executed.  The suit alleges that Shell, through its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC), provided transport to Nigerian troops, allowed company property to be used as staging areas for attacks against the Ogoni and provided food to the soldiers and paid them.  The plaintiffs claimed the defendant companies were complicit in the commission of torture, extrajudicial killing and other violations pursuant to the Alien Tort Claims Act (ATCA).

In March 2008, the district court granted the defendants’ motion to dismiss for lack of personal jurisdiction.  On 16 November 2009, the plaintiffs’ motion for reconsideration was granted asking the court to re-examine the issue of jurisdiction.  The court said in the motion that a direct business relationship between the USA and SPDC must be established in order for ATCA to apply.  On 21 June 2010, the district court ruled that the plaintiffs had not shown that this direct business relationship had existed, and the judge dismissed the suit against SPDC.  The plaintiffs appealed this ruling, and on 17 September 2010 the court of appeals issued a sweeping opinion addressing ATCA lawsuits involving corporate defendants.  The majority opinion affirmed lower court’s dismissal of the lawsuit, and it also stated that ATCA could not be used to sue corporations for violations of international law.  A separate opinion was written by the third judge from the appeals court panel, who concurred with the majority in judgment only.  This judge vigorously disagreed with the majority’s reasoning; he wrote that the majority’s opinion dealt a “substantial blow to international law and its undertaking to protect fundamental human rights.”  On 14 October 2010, the plaintiffs filed a petition for rehearing and rehearing en banc with the court.  The court of appeals, on 4 February 2011, refused to rehear the case.  The plaintiffs petitioned the Supreme Court in June 2011 asking it to hear an appeal of the lower court's ruling.  On 17 October 2011 the Supreme Court announced that it would hear the plaintiffs' appeal in this case.  Oral arguments were held on 28 February 2012.  On 5 March the Supreme Court announced that it would not rule on the case in the current term.  It has asked the parties to submit supplemental briefs and will rehear the case in the next term.  The Court asked the parties to submit briefs on whether the Alien Tort Claims Act allows federal courts to hear lawsuits alleging violations of international law which occur outside the United States.  The Court reheard the case on 1 October 2012.  On 17 April 2013 the Supreme Court handed down its decision finding that ATCA does not apply to conduct outside of the United States.  The Court affirmed the dismissal of the case.  A special page with all of the documents related to the Supreme Court review of this case is available here.

Proceedings in the Netherlands:

In October 2016, Esther Kiobel filed an application with a New York District Court under the US Foreign Legal Assistance Statute to gain access to important documents from the original US case, to be used in a lawsuit against Shell in the Netherlands.  The documents are in the possession of Shell’s lawyers, Cravath Swaine & Moore LLP.  

On 24 January 2017, Cravath Swaine & Moore were ordered to turn over the documents. On 13 February, the law firm appealed the decision arguing that it will suffer because foreign companies will be disinclined from hiring US lawyers if such wide discovery requests are granted.  A US court of appeals reversed the decision. Esther Kiobel asked the US Supreme Court to review the decison. On 7 January 2019, the US Supreme Court denied her petition.

In June 2017, Esther Kiobel and three other women launched a civil case against Shell in the Netherlands.  They claim the company was complicit in the 1995 killings of their husbands, part of the Ogoni 9 activists who contested Shell's operations and the Nigerian Government over the effects of oil pollution. Shell has denied any involvement in their executions. On 1 May 2019, a Dutch court said it has jurisdiction to hear the case and ruled that Shell should hand over confidential internal documents to the claimants.


Esther Kiobel, et al. v. Royal Dutch Petroleum Company et al:

Wiwa v. Shell

An earlier, related claim was filed by Ken Wiwa (son of the late Ogoni activist Ken Saro-Wiwa who was executed together with Barinem Kiobel  in 1995) and other members of MOSOP in 1996.  The Wiwa lawsuit was filed against the same defendant companies as the Kiobel lawsuit.  This lawsuit alleged that the Nigerian military government and security forces committed human rights violations, including torture and summary execution of MOSOP members, to suppress MOSOP’s activities and that Royal Dutch/Shell was complicit in the commission of these abuses.  The plaintiffs won several pre-trial rulings, including on motions by the defendants to dismiss the case. 

In early June 2009, the parties announced that they had agreed to a settlement in the case for $15.5 million.  The settlement provides compensation for the ten plaintiffs and covers a portion of the plaintiffs’ legal costs.  The settlement also establishes The Kiisi Trust, intended to benefit the Ogoni people, which will be governed by independent trustees.  This trust is to fund initiatives in Ogoni such as education, women’s programmes, adult literacy and small enterprise support.


Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC:

US Circuit Court for the Second Circuit:

  • Wiwa v. Shell, 14 Sep 2000 [reversal of lower court’s dismissal of the case]

US District Court for the Southern District of New York:

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All components of this story

10 February 2020

Amnesty releases report highlighting various ongoing legal cases against Shell worldwide for abuses in Nigeria

Author: Amnesty International

"Nigeria: 2020 could be Shell's year of reckoning", 10 February 2020

In 2020 Shell will face unprecedented legal scrutiny over decades of human rights abuses in Nigeria, Amnesty...said today. Amnesty...has been researching Shell’s activities in the Niger Delta for more than 20 years, compiling compelling evidence of the company’s role in human rights abuses. In a report released today, the organization highlights the various cases that are finally putting Shell’s harmful operations in Nigeria on trial...

...“Shell’s business model has allowed it to benefit from weaknesses in Nigeria’s justice and regulatory systems, wreaking havoc on Nigerian lives and livelihoods while profits continue to flow to its European headquarters. A just transition to clean energy also means holding polluters to account...”, [Mark Dummett, Amnesty's Head of Business, Security and Human Rights].

Due to the difficulties of bringing legal claims in Nigeria, individuals and communities affected by Shell’s operations in Nigeria are bringing cases in the Netherlands and the UK where Shell is headquartered. These could set important precedents for holding polluting multinationals to account...

Kiobel v Shell: In...March [2020] a court in The Hague will hear witness statements in a case brought by four women who accuse Shell of complicity in the unlawful arrest, detention and execution of their husbands by the Nigerian military in 1995. The women are claiming compensation and a public apology from Shell. The executions were the culmination of a brutal campaign by Nigeria’s military to silence protests against Shell’s pollution.

Four Farmers Cases: In May 2020, a final hearing is expected in a case brought against Shell by four Nigerian farmers and Friends of the Earth in 2008. They are seeking compensation from both Netherlands and UK-based Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company (SPDC), for alleged damage to fish ponds and land caused by oil spills.

Read the full post here

11 October 2019

Witness hearings resume in Dutch lawsuit key to holding Shell accountable for alleged role in Nigerian Ogoni Nine executions

Author: Amnesty International

"Nigeria/Netherlands: Kiobel witness hearing key chance to hold Shell to account over human rights abuses," 8 Oct 2019

A witness hearing examining Shell's role in the execution of nine men in Nigeria in the 1990s is a key opportunity to hold the oil giant to account over its alleged complicity in human rights abuses, Amnesty International said. 

The Kiobel v. Shell case resumes at The Hague on 8 October and will for the first time hear accounts from individuals who accuse Shell of offering them bribes to give fake testimonies that led to the "Ogoni Nine"... being sentenced to death and executed... 

"For more than twenty years Shell has escaped scrutiny over its role in these tragic events..." said Mark Dummett, Business and Human Rights Researcher at Amnesty International... 

The 'Ogoni Nine' as they were known, were accused of being involved in the murder of four Ogoni chiefs known to be opponents of the Movement for the Survival of the Ogoni People (MOSOP)...

On 1 May, the court ruled in favour of the plaintiffs, that it did have jurisdiction of the case and that this should not be time barred. It also ruled that Shell should hand over some confidential internal documents to the plaintiffs' lawyers...


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Author: Amnesty International Belgique

« Nigeria/Pays-Bas, audition dans l’affaire Kiobel contre Shell », 8 octobre 2019

L’examen de l’affaire Kiobel c. Shell reprend à La Haye le 8 octobre. Pour la première fois, des personnes témoigneront au sujet de pots-de-vin que Shell leur aurait offerts contre de faux témoignages, sur la base desquels les « neuf Ogonis » - dont le mari d’Esther Kiobel - ont été condamnés à mort et exécutés...

Esther Kiobel et trois autres femmes - Victoria Bera, Blessing Eawo et Charity Levula - accusent Shell d’avoir été complice de l’arrestation, la détention et l’exécution illégales de leurs époux. Ces quatre hommes ont été pendus en 1995, en même temps que le célèbre militant Ken Saro-Wiwa et quatre autres hommes, après avoir été condamnés à l’issue d’un procès manifestement inéquitable...

Shell rejette toutes ces allégations ; elle affirme, de plus, que le tribunal devrait rejeter l’affaire pour défaut de compétence et prescription...

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Author: Amnesty International Belgique

« Nigeria/Pays-Bas : le jugement concernant Shell est « une avancée cruciale vers la justice » », 1er mai 2019

Le tribunal de district de La Haye a rendu le 1er mai 2019 un jugement provisoire dans l’affaire intentée par Esther Kiobel et trois autres femmes concernant l’implication de Shell dans l’arrestation illégale, la détention et l’exécution de leurs époux par l’armée nigériane. 

 Le tribunal a statué en faveur des plaignantes, assurant qu’il est compétent pour juger de cette affaire qui ne doit pas faire l’objet d’un délai de prescription.

Le tribunal a également statué que Shell devait remettre des documents internes confidentiels aux avocats des plaignantes qui auront la possibilité d’interroger les témoins.

Amnesty International a salué la décision du tribunal, qui a ordonné à Shell de rendre publics certains documents internes, mais regrette qu’il n’ait pas ordonné que soient remis tous les documents demandés par les avocats d’Esther…

Esther Kiobel a intenté un premier procès à Shell en 2002 à New York mais, en 2013, la Cour suprême américaine a statué que les États-Unis n’étaient pas compétents en l’espèce, ce qui signifie que les tribunaux américains n’ont jamais eu à examiner sur le fond les allégations formulées contre Shell…

Les quatre plaignantes accusent Shell d’avoir joué un rôle déterminant dans l’arrestation et la détention illégales de leurs maris, les atteintes à leur intégrité physique, les violations de leurs droits à un procès équitable et à la vie, et leur propre droit à une vie de famille. Amnesty International a aidé Esther Kiobel à porter l’affaire devant la justice néerlandaise en 2017, et a publié un document de synthèse intitulé In The Dock, qui décrit en détail l’implication de Shell dans les arrestations et les exécutions…

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1 May 2019

Dutch Court to Hear Case vs. Shell Brought by Widows of Hanged Nigeria Activists

Author: Bart H. Meijer, Reuters (UK)

A Dutch court said on Wednesday it has jurisdiction to hear a damages suit brought against Royal Dutch Shell by four widows of activists executed by the Nigerian government in 1995.

In a preliminary decision, judges at the Hague District Court said they would allow the suit to go forward, a rare win in a decades-long legal fight, though the claimants must still prove their case. Shell denies wrongdoing or responsibility.

"The court considers itself capable" of hearing the case, said presiding judge Larissa Alwin, reading the decision of a three-judge panel. "This procedure will continue."

Dutch courts do not award large punitive damages claims, though the case has the potential to embarrass Shell and provide a measure of comfort for the activists' families if it finds the company bears responsibility in their deaths...

Shell, headquartered in the Hague, paid $15.5 million to victims' families in the United States in a 2009 settlement in which it also denied any responsibility or wrongdoing. The U.S. Supreme Court rejected U.S. jurisdiction in 2013.

"I am glad that the (Dutch) court has found it has jurisdiction," said lead plaintiff Esther Kiobel, whose husband Barinem Kiobel was among the executed activists.

"My husband was killed like a criminal. I want him to be exonerated."

Judge Alwin cautioned that the three-judge panel did not agree with assertions by the widows that Shell should have done more to prevent their husbands' executions...

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1 May 2019

Dutch court will hear widows' case against Shell over deaths of Ogoni Nine

Author: Kate Hodal, Guardian

A Dutch court has ruled that it has jurisdiction to determine whether Royal Dutch Shell was complicit in the Nigerian government's execution of the Ogoni Nine, environmental protesters who fought against widespread pollution in the Niger Delta.

In a 50-page ruling hailed by campaigners as an "important precedent" for global human rights cases, judges at The Hague's district court said on Wednesday that they would allow the case to go forward, also indicating that the claimants – widows of four of the activists – would be able to bring further evidence to prove their case.

The ruling, which was partially read out to members of the public, also stipulated that the oil firm must now hand over confidential internal documents.
The four widows accuse Shell of instigating a deadly crackdown by the military government of the time against peaceful protesters in Ogoniland, in the Niger Delta, the most valuable oil-producing region in Africa.

Nine members of the Movement for the Survival of the Ogoni People, including its leader, Ken Saro-Wiwa, were executed in 1995 by the Nigerian authorities, following a widely discredited trial.

Esther Kiobel, whose husband, Dr Barinem Kiobel, was among the nine executed, said the decision would help exonerate the men.

"We shall prove our case. We have the evidence," she said. "I wouldn't be fighting this fight if I didn't have what it takes. I've been fighting for decades."

It has been a 24-year battle to get even this far. After exhausting all legal recourse in Nigeria, Kiobel first brought a class action against Shell in New York in 2002, where the US supreme court finally ruled in 2013 that the case had been filed in the wrong jurisdiction. A writ was then brought in The Hague, where the oil multinational is based.

Shell denies all allegations that it was complicit in the deaths of the Ogoni Nine or human rights abuses, but it has acknowledged that it was aware Nigeria's military was taking action to protect the company's infrastructure. In 2009, it paid out $15.5m (£11.9m) in an out-of-court settlement to Saro-Wiwa's family and others, but denied any wrongdoing.


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1 May 2019

Nigeria: Shell ruling on involvement in Ogoni Nine executions a 'vital step towards justice'

Author: Amnesty International

The District Court of The Hague today issued an interim ruling in the case brought by Esther Kiobel and three other women with regard to Shell’s involvement in the unlawful arrest, detention and execution of their husbands by the Nigerian military.

The court ruled in favour of the plaintiffs, that the court does have jurisdiction of the case and that this should not be time barred. It also ruled that Shell should hand over some confidential internal documents to the plaintiffs’ lawyers, and that they would have the opportunity to examine witnesses.

Mark Dummett, Amnesty International’s Head of Business and Human Rights, said:

“This decision marks a vital step towards justice for Esther and the other plaintiffs. It also sets an important precedent for other victims around the world who are seeking to hold powerful corporations to account, and who struggle to access justice.

“We salute Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula. It’s only because of their courage and persistence that we’ve got this far.

“The women believe their husbands would still be alive today were it not for Shell’s relentless pursuit of profit, which encouraged the Nigerian government’s bloody crackdown on protesters even when it knew the deadly human cost. Shell might now face questioning in a court of law about what they knew and how they contributed to this horrifying event in Nigerian history.

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26 April 2019

Dutch court to rule on whether lawsuit against Shell over alleged involvement in execution of activists in Nigeria can proceed

Author: Mark Dummett, Amnesty Global Insights, Medium

"Ruling due in Esther Kiobel’s epic legal battle against Shell", 24 Apr 2019

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.

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Author: Deutsche Welle

'Verbrechen in Nigeria: Shell vor Gericht', 12 Feb 2019

Der britisch-niederländische Ölmulti Shell muss sich in den Niederlanden wegen Menschenrechtsverbrechen in Nigeria verantworten. Vier Witwen des Volkes der Ogoni werfen dem Konzern vor, die nigerianische Militärregierung in den 90er Jahren bei der Verhaftung und Ermordung ihrer Männer unterstützt zu haben. "Über Jahre hat Shell dafür gekämpft, dass dieser Fall nicht vor Gericht verhandelt wird", sagte die Klägerin Esther Kiobel laut Amnesty International. [...]

Die Ogoni hatten im Niger-Delta gegen die Verschmutzung ihres Lebensraumes durch die Ölförderung gekämpft. Der Protest wurde von Diktator Sani Abacha 1995 blutig niedergeschlagen. Shell, das seinen Firmensitz in den Niederlanden hat, hatte enge Verbindungen zur Militärdiktatur. [...]

Die Klägerinnen wollen die Komplizenschaft des Unternehmens an der Hinrichtung ihrer Ehemänner nachweisen und eine Entschuldigung sowie Entschädigungen erstreiten. In der Klageschrift wird Shell der Mittäterschaft an der ungesetzlichen Verhaftung und Hinrichtung von neun Männern bezichtigt. Die sogenannten Ogoni Nine, darunter Barinem Kiobel und der Autor Ken Saro-Wiwa, wurden wegen ihres Protests am 10. November 1995 gehängt. [...]

Die Klage gegen Shell wurde im Juni 2017 von Esther Kiobel und drei weiteren Frauen bei einem Zivilgericht in Den Haag eingereicht. Das Unternehmen sorgte immer wieder für Verzögerungen und bemühte sich, einen Prozess abzuwenden: Shell habe "keine Rolle bei der Verhaftung, dem Prozess und der Hinrichtung dieser Männer gespielt". [...]

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12 February 2019

Nigeria: Esther Kiobel testifies against Shell in The Hague

Author: BBC

"Nigeria: Ogoni widow testifies against Shell in The Hague", 12 February 2019

The widow of a Nigerian activist suing oil giant Shell over the execution of her husband says his death left her "traumatised" and "poverty-stricken".

Esther Kiobel is testifying in court in The Hague, demanding compensation from the Netherlands-based firm.

She is among four women who accuse Shell of being complicit in the hanging of their husbands by Nigeria's military in 1995. Shell denies the allegation.

The activists led mass protests against oil pollution in Nigeria's Ogoniland.

In a statement, [Shell] said the executions were "tragic events which shocked us deeply".

"We have always denied, in the strongest possible terms, the allegations made in this tragic case...

Saro-Wiwa and the eight other activists were executed after a secret trial in which they were convicted of murdering four Ogoni traditional leaders.

They denied the charge, and said they were framed...

...At his trial, Saro-Wiwa said the case was designed to prevent the Ogoni people from fighting against oil pollution which had devastated the region's environment and had caused poverty and disease.

Read the full post here