Monthly Archives: February 2012

Kiobel v. Royal Dutch Petroleum

On Tuesday, the U.S. Supreme Court will hear a case coming from Ogoniland in the Niger Delta. Ogoniland is the birth place of Ken Saro-Wiwa, the epicenter of the anti-oil movement in the 1990s, and the most polluted area in Nigeria.  Nineteen plaintiffs have brought Kiobel v. Royal Dutch Petroleum under the 1789 Alien Tort Claims Act/Alien Tort Statute (ATS). It was originally intended to show the international community that the U.S. government would enforce and provide remedies for violations of international customary laws. Although ignored for almost 200 years, it was revived in that Filartiga v. Pena-Irala (1980) case that found a Paraguayan former Police Chief guilty of torturing a Paraguayan political dissident four years earlier in Asunción.  A non-American petitioner challenging a non-American respondent for a crime committed outside of the U.S., on the grounds that the crime was a violation of international law, won in an American court—quite a precedent.  Since then, more than 120 lawsuits have been filed in federal courts against 59 corporations for alleged wrongful acts in 60 foreign countries, almost all for “aiding and abetting” foreign governments. ATS has been utilized against multinational oil companies operating in Burma and Sudan. In a Nigerian case, jurors in Boweto v. Chevron (2008) found Chevron not guilty of knowingly assisting soldiers in human rights abuses committed in January of 1999. In Wiwa v. Royal Dutch Shell, Shell settled out of court for $15 million. Aside from some settlements, the ATS has not been particularly successful at bringing convictions against MNCs operating in the global south, but many human rights activists in the legal field still hold hope that it can.

For the Kiobel case, the question is less about whether Nigerians can bring a case against non-Americans for the torture and extrajudicial killings that occurred in their community, but whether or not they can bring the case against a corporation. Does international law recognize corporate responsibility? The 2nd Circuit of Appeals found that it does not, with the majority writing, “Corporate liability is not discernible” because “no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights.” In other words, the behemoth rise of the multi-national corporation has outpaced international law’s ability to regulate it.

Dutch Shell’s counsel will rely heavily on the argument that there is no precedence for corporate criminal liability under ATS. However, those who believe corporations can be held criminally liable under international customary law point to post-WWII jurisprudence. The Allies, under the authority of international law, dissolved several German corporations that had produced goods and invested money in support of Hitler’s war efforts.  The most famous was I.G. Farben, the manufacturer of poison gases, drugs, and oil used in the Holocaust. The Ogonis’ case will largely depend on whether their lawyers can successfully equate Nazi-supporting German corporations with contemporary oil companies operating in Nigeria.

Even if Dutch Shell is successful in this argument, it may not necessarily be the end of the road for the Ogonis. Law is an inherently discursive space that changes form little-by-little as its parameters and content are constantly renegotiated.  Although he wrote it in last year’s decision dismissing a case against Firestone for children’s rights violation in Liberia, Judge Posner wrote, “Suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created.” Although law is inherently conservative, and gathers much of its power from being so, it is not immutable.

The Ogonis counsel could cite the 2010 Citizens United ruling that corporations’ personhood give them free speech protections. The Supreme Court found that the framers of the Constitution intended the First Amendment to apply to corporate persons. It requires impressive creativity to argue that corporations are “people” deserving of constitutional protections but not “people” liable for crimes against humanity prohibited by a statute passed in the decade following ratification of the Constitution, unless one emphasizes that Citizens United was unrelated to international law.

John Bellinger, former legal advisor to the State Department, supports curbing the ATS.  He finds that its original intent to allow foreign nationals to sue in federal courts for violations of international law was only to reduce diplomatic frictions for the nascent United States. However, since international law does not allow courts of one country to exercise jurisdiction in civil cases over offenses in other countries, foreign governments have filed more than 20 protests with the State Department and federal courts in Alien Tort Statute suits over the past decade. Paradoxically, its modern application is creating the very diplomatic tensions that it was meant to prevent. For Bellinger, the major concern over ATS is reciprocity. The U.S. government would certainly be opposed to foreign courts hearing cases against American corporations for violations of international law. Reuters points out that such litigation is time-consuming, expensive, and complicated.

My prediction: The United States, well-known for its exceptionalism, is often behind other developed countries in marrying itself to international human rights law. It waited almost thirty years to ratify the Convention on the Elimination of All Forms of Racial Discrimination.  It is the only developed nation left that has not ratified the Convention on the Rights of the Child not the Convention on the Elimination of All Forms of Discrimination Against Women, and it will probably never ratify the Covenant on Economic, Social, and Cultural Rights. Even under intense international pressure, the U.S. privileges its sovereignty over international human rights law, which means there is very little chance that an American court would indulge an international law-based ATS claim against a corporation without even an international tribunal doing so first.

PDP Candidate is the New Governor of Bayelsa State

Yes, the People’s Democratic Party (PDP) candidate in Bayelsa, Henry Seriake Dickson, won over 90 percent of votes in Saturday’s gubernatorial election, according to the Independent National Electoral Commission. The previous governor, Timipre Sylva, was barred from running again for allegedly threatening the President.

Timipre Sylva

Reuters reported that at least one person was killed and several injured at a pre-election rally on Tuesday and turnout during Saturday’s ballot was low due to security concerns. The state deployed around 15,000 police to deter any potential unrest. Around 800 people were killed after last year’s presidential election in three days of violence between rival supporters and in clashes between Christian and Muslim gangs.

Some opposition parties refused to accept the result, saying there were irregularities, including ballot box snatching, multiple voting and harassment of party officials. Such accusations follow most Nigerians elections so they are not surprising.

This election matters for three reasons.  First, the federal government doles out oil revenues to states, and then states are supposed to in turn distribute funds to localities.  However, localities rarely receive the sums allotted to them because of state-level graft, so governors are key players in determining the degree of corruption in Nigeria. Second, Bayelsa is considered to be the hub of militant activity so the strength of leadership there has a resounding impact on the Niger Delta crisis and foreign companies’ comfort in investing in Nigeria.  Third, having a PDP governor in office in his home state undergirds Jonathan’s presidency, as he was elected in large part because of professed ability to coordinate easily  with state politicians there to handle security more effectively.

Henry Dickson is the new Bayelsa State Governor.

Renewed Conflict in Nigeria between Northerners and Easterners

There have been an unusual number of reports here on eastern-northern tensions recently. This is a terrible oversimplification, but for those new to Nigerian politics this situation is easier to understand by thinking of most northerners as Hausa Muslims and most easterners as Christian Igbos. However, there are many Igbos living in the north and many Hausas living in the east, contributing to the conflict. Other important factors are contemporary worry about the northern Islamic sect of Boko Haram and residual strain left over from the Biafran independence effort.

There is still tension between northerners and easterners over the question of who started the Biafran War. In 1966, several Igbo radicals deposed the first president of an independent Nigeria, Nnamdi Azikiwe (also an Igbo, but one who grew up in the north). Major General Aguiyi-Ironsi was installed as head of the military government for six months until Northern officers staged a much more violent counter-coup that put Lt. Colonel Gowon (a northerner) into power.  It was under his administration that Igbos perceived an increase in violence and persecution against both the Igbos living in the north and those who had remained in their historical homeland in the south-east. In 1967, the eastern region declared itself independent, as the Republic of Biafra led by Dim Ojukwu, creating a two-and-half year civil war that killed a million people, mostly Igbos.

So, northerners and westerners tend to view the conflict as being created by Igbos who staged the first coup and then tried to declare independence, while Igbos argue that Gowon declared war on the Eastern region in order to force the region back to Nigeria. They say that Ojukwu and his troops fought in defense, and that he only declared independence under pressure from eastern people who wanted to end the violence against the easterners living in the north.

Dim Odumegwu Ojukwu, late Biafran leader

There remains a pervasive sense of injustice among many Igbos in the east regarding the failed independence movement. There is still the Movement for Actualization of Sovereign State of Biafra (MASSOB), led by Chief Ralph Uwazuruike, and various association of Biafran War veterans. Ojukwu died this past November and Igbo war veterans immediately called for him to be given a proper state burial by the Federal Government but the Senate rejected the measure because he is not a former Head of State. His body will tour three West African countries and Haiti before he is interred.

Ojukwu’s burial in Enugu has been postponed due to fuel subsidy protests but is scheduled for March 3. The event has been jointly planned by the Federal Government and MASSOB. The South-east and South-south geopolitical zones will be closed down for the day and MASSOB has issued a sit-at-home order. There is a major security concern that Boko Haram will see the burial as key target for attack. Boko Haram has killed almost 300 people so far this year. The security will be even more tenuous since a northern police officer in the eastern state of Anambra shot a man this week for failing to pay a bribe in full.  Although the Hausa officer has been arrested for murder, Igbos committed retaliatory violence in Onitsha, Asaba against northerners seen as interlopers in the region.  Northern Muslims in Anamabra have fled into neighboring states, and now there is worry that Boko Haram could in turn attack the east. We will have to watch how March 3 unfolds.

Nigeria: Elections and Violence in the Niger Delta

deltalaine:

These renewed attacks by MEND indicate that the amnesty program, which offers salaries and job training, was only a temporary palliative. Buying off a few fighters simply opens up positions for new recruits to join MEND. In terms of the elections, it will be interesting to see how renewed violence affects the message that candidates send to voters, although most believe Seriake Henry Dickson already has a win secured.

Originally posted on Sahel Blog:

The Niger Delta is back in the news, both for the (alleged?) return of the Movement for the Emancipation of the Niger Delta (MEND – read a backgrounder here) and for the upcoming gubernatorial elections in Bayelsa State, which was the site of a bitter primary election in November. Different sources give different views on how closely the recent oil violence is connected to Bayelsa’s electoral calendar. But clearly the Niger Delta is facing renewed political tension and renewed violence at the same time.

Nigeria last held national elections, including gubernatorial contests, in April 2011, but since then various governors have faced court challenges to their legitimacy. Some have won and remained in office, but others have not. On January 27, the Supreme Court removed five governors from office (for the back story, see here). The situation in one of these states, Kogi, is complicated by the…

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MEND Attacks Resume

On Saturday, the oil pipeline of the Italian-owned oil company ENI was attacked by MEND fighters.  The company says it has lost 4,000 barrels per day but this attack has not had a noticeable impact on global oil prices so far. A MEND spokesman, Jomo Gbomo, publicly claimed credit for the attack on the oil pipeline in Bayelsa, as well as for a separate attack on the home of the Minister of Niger Delta Affairs, Godsday Orubebe.  He said, “The Movement for the Emancipation of the Niger Delta understands the negative impact our assault on the Nigerian oil industry will have on the ordinary citizen in a country which relies almost entirely on one source of revenue. Unfortunately, the extremely irresponsible, floundering government of Nigeria is more concerned with enriching themselves and family members than attending to the problems of the Niger Delta and the continuously depreciating standard of living of the ordinary Nigerian.” Gbomo warned that  “traitorous indigenes of the Niger Delta” need to be careful.

The very same day a popular hotel near Warri in Delta State suffered a bombing after ex-militants staying there protested perceived poor treatment by the national Amnesty Committee’s consultant responsible for their rehabilitation training and living quarters.

Last week’s violence is important because it is the first flare of violence since the Niger Delta Amnesty Program, created under the late Preside Yar’Adua, was implemented. Managers of the amnesty program claim that over 26,000 ex-agitators have already been demobilized and that over 7000 are currently being trained in Nigeria and abroad while 12,000 are being processed in order to do so.  The major educational reintegration camps within Nigeria are located in Cross River State in the East and in Lagos State in the west.  There are a number of women who have accepted the amnesty program and are living with their children at the Cross River State camp. Additionally, ex-militants have reportedly been sent all over the world, including to Malaysia, Russia, India, South Africa, and the Philippines. Not surprisingly, it is a fairly common belief that people who were never part of the agitation have emerged to claim amnesty in order to enjoy its benefits.

So, MEND is back, at least for now. Does this mean the amnesty has failed?

A Visit to the Poorest Communities of the Delta

I had heard about Ikebiri long before visiting.  The Ikebiri Kingdom of the Southern Ijaw region in Bayelsa State is well-known for being at the epicenter of militancy.  The Movement for the Emancipation of the Niger Delta (MEND) emerged not far away, and the area is considered to be one of the “hottest” in the Niger Delta.  It hosts the Nigerian Agip Oil Company, which locals blame for the destructive oil spills and gas flares that have killed local wildlife, poisoned drinking water, and ruined agricultural land. There have been several incidents of Ijaw women from Ikebiri demonstrating in the capital, and four years ago they threatened to march nude to Agip in protest of the lack of economic development in their villages.

To access Ikebiri from Yenagoa, we took an old speedboat an hour and a half towards the ocean. We passed two military checkpoints along the way that required us to raise our hands upon approaching, to show that we meant no harm and didn’t carry weapons. Although we were stopped for having a white person onboard, the soldiers were amiable. We maneuvered around fishermen in their canoes and made sure to avoid the nets that they were floating using empty water bottles. We waved to farmers along the banks as they dug up yams and cassava.  Families were living in thatched-covered homes perched on stilts, some constructed out of scrap wood and others out of reeds. Most of the women we saw were washing clothes or bathing themselves in the muddy water and children were fishing or diving for snails in their underwear.  It was a world apart from the middle- and upper-class neighborhoods that rely on the oil underground there.

Spending less than an hour at Ikebiri makes it clear why residents demand more economic development from the Nigerian government. Our first stop was at the health clinic, which services the thousands of people in the Kingdom.  From outside it looks new, but once inside we saw that the building was simply a skeleton.  There was nothing inside except for two dilapidated twin beds and a few foam pads on the floor; there were no medicine cabinets, furniture, nor machines of any type.  Wondering about machines is highly optimistic though since those machines would require electricity or a generator, which the clinic didn’t have. The only doctor on staff, a 23-year-old recent college graduate doing his National Youth Service, said that he performs surgeries using satchels of drinking water, but if those satchels run out the he is forced to boil river water.  When a human rights activist that I had traveled with asked about health problems related to the ongoing fire on a Chevron rig, which has been burning for almost three weeks, he seemed overwhelmed and mumbled that it was causing asthma and gastrointestinal issues with the patients.  Two older men interrupted to point out their red and pussy eyes.  I don’t know if these problems can be linked to oil pollution or the poor living conditions in the community in general, but hospitals need medicines, machines, and doctors, and this one didn’t have any of those things.

During our walk back to the boat, it suddenly dawned on me why this community had felt unusual.  The majority of the residents were children.  All around were children carrying babies, children washing babies, children feeding babies.  The children must have outnumbered the adults almost ten to one.  Additionally, the adults I did see were women, and almost half of those women were visibly pregnant.  Presumably the men must have left to go find work, since fishing and agriculture are no longer able to sustain families anymore, but somehow the community still managed to have astronomically high birth rates. Nigeria has a young population, with over 1/3 of the population under the age of 24, but this community must have had an even more dramatic youth bulge.

Each community we visited seemed to have even more noticeable poverty than the one before it. As the seat of the Kingdom, Ikebiri I receives the majority of resources, so that newer Ikebiri II was noticeably less developed.  Our final visit was to Otorgbene, an island community situated in muddy mangroves.  We went to ask about the thousands of fish that had washed up on shore in the last few days, probably as result of the ongoing rig fire. Residents told us that every morning they would wake up to find more and more fish on the banks, and that they didn’t know what they could do to stop it.  They told us about common health problems they experienced; foremost among them was malaria, a problem certainly predating the development of the oil industry.  They asked about the free mosquito nets they had been promised months ago by the federal government, and the investigator had to tell them that a state government official had been caught selling the nets for personal profit, and so there were no more left. They admitted they had been excited when our speedboat pulled up because a white person was on it; they thought we were arriving to deliver food and medical supplies.

We carefully made our way to where the Delta creek meets the ocean at the village of Kolu-Ama.  We went to see the smoke fumes caused by the Chevron fire.  The billows came up out of the trees and then disappeared into the sky.  We had passengers in our boat from a community that is in a legal battle with Kolu-Ama over land rights, so we didn’t want to approach too closely out of fear of provoking a conflict.  I was glad to see the Kolu-Ama community that I had heard about in recent weeks, the one in which women marched to the Chevron office in Warri and then to Government House in Bayelsa to demonstrate against the company’s failure to put out the fire. It is still burning.

On the ride back to Yenagoa, I chatted with a pleasant woman who had joined us for the day.  When she showed me a picture of her deceased son, I realized that she is the mother of the 20-year-old who was shot by police for refusing to pay a traffic bribe. It is well-known story here. The two of them were coming home from church, his mother tried her best to protect him during the altercation, and he was killed holding a bible in his hand.  The police involved were acquitted of all charges except mishandling a firearm. The parents have filed a civil suit and are being assisted by the human rights activist who had led the site visit.  I couldn’t help noting the irony that her husband helps head the Joint Task Force (JTF), which has had a very heavy hand when dealing with collective action in the Delta.  The very organization that was representing her in her case for her son’s murder is the same one that speaks out against rights abuses perpetrated by the JTF in the very areas we had visited. The Niger Delta is a complicated place.

To see photos from the site visit:

Gathering Data on Pollution in Ikebiri, Nigeria

The Spillover Effect of Occupy Nigeria

The powerful emergence of Occupy Nigeria could have profound implications for the human rights mobilizations that previously existed here. There is an extensive women’s health movement that focuses on lowering maternal mortality rates through building women-only hospitals and conducting public health education campaigns (a darling cause of several First Ladies here). Child rights campaigners have aligned with government agencies to try to stop the use of child labor, namely families sending young children to work as vendors and beggars. Several civil society groups focus on improving accountability and transparency among state officials, a challenging feat in a country where corruption pervades the highest levels of the federal government. To a lesser extent, there is also a nascent LGBTQ rights campaign by groups such as The Initiative for Equal Rights that have received virulent criticism, creating an anti-gay rights legislative backlash over the last year. How will Occupy Nigeria, far more poignant and widespread than any of these other movements, impact previous human rights causes?

The strength of the anti-oil campaign in the Niger Delta has fluctuated since it emerged twenty years ago. It was at its strongest in the mid-1990s under the direction of Ken Saro-Wiwa, but it then faded after his execution and with the increased repression of the Abacha regime. After the implementation of the new democratic constitution in 1999, it revived itself when women in Rivers and Delta state became increasingly involved in largely peaceful protests against oil companies. The most well-known is the occupation of Chevron’s Escravos site by 600 Itsekiri and Ijaw women who halted production there for 10 days in the summer of 2002. The following January dozens of Ijaw women in Warri blocked a river leading to a proposed Naval base in protest against government neglect and as recently as 2010 Shell closed two flow stations for several days due to a women’s sit-in. In January 2012, women from the Kolu-Ama community protested by setting up a roadblock to a Chevron office, demanding the company put out an offshore platform fire.

Although these women’s anti-oil movement has been overshadowed by Occupy Nigeria in the last month, I think that ultimately the Niger Delta mobilization benefits from collective action for other causes because of a “spill over” effect.