CorpsWatch argues that the ruling effectively blocks other lawsuits against foreign multinationals for human rights abuse that have occurred overseas from being brought in U.S. courts. Kiobel v. Royal Dutch Petroleum Co. (Shell) was brought under the Alien Tort Statute (ATS), a U.S. law dating back to 1789, originally designed to combat piracy on the high seas – that has been used during the last 30 years as a vehicle to bring international law violations cases to U.S. federal courts.

Lawyers began using ATS as a tool in human rights litigation in 1979, when the family of 17-year-old Joel Filartiga, who was tortured and killed in Paraguay, sued the Paraguayan police chief responsible. Filartiga v. Peña-Irala set a precedent for U.S. federal courts to punish non-U.S. citizens for acts committed outside the U.S. that violate international law or treaties to which the U.S. is a party. Almost 100 cases of international (often state-sanctioned) torture, rape and murder have been brought to U.S. federal courts to date under the ATS. The new ruling limits the law to U.S citizens and entities.

“Corporations are often present in many countries and it would reach too far to say mere corporate presence suffices,” wrote John Roberts, the chief justice of the Supreme Court, in the majority opinion. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” Stephen Breyer, another of the nine judges, agreed with Roberts in the decision but left the door open for some lawsuits. “I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially  and adversely affects an important American national interest,” wrote Breyer in a separate legal opinion. “(T)hat includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Shell – in Breyer’s opinion – did not qualify as a U.S. entity. “The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange,” Breyer wrote. “Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors.”

Other such cases have been filed against Chiquita and Halliburton. Chiquita was sued by surviving victims of brutal massacres waged by right-wing paramilitary squads in Colombia. The paramilitary, who killed thousands of civilians during Colombia’s dirty war of the 1980s and 1990s, were on Chiquita’s payroll in the 1990s. Now-U.S. Attorney General Eric Holder defended Chiquita in the case and won a plea bargain for them of $25 million and five years of probation. Kellogg, Brown and Root, a former subsidiary of Halliburton, has also been sued under the ATS for allegedly trafficking 13 men from Nepal to Iraq against their will to work on U.S. military bases. The men, 12 of whom were killed, believed they were going to work at hotels in Jordan and elsewhere.

The Obama administration backed Shell last June after abruptly changing sides. In its submission the Justice Department urged the Supreme Court to dismiss the suit against Shell. The brief’s authors stated that the ATS was not appropriate for Kiobel or other lawsuits involving foreign corporations accused of collaborating in human rights abuses with a foreign government outside U.S. territory. U.S. courts “should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [sued party] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct,” the Justice Department wrote.

Many activists say that the decision will set back human rights causes. “This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations,” says Elisa Massimino, president of Human Rights First, a New York based NGO. “Abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails.  Now what will they do?” However, other lawyers drew a measure of hope from the fact that the Supreme Court decision did not exclude all lawsuits against multinationals overseas in U.S. courts.

Reblogged from Mobilizing Ideas:

“Nigeria’s security forces have recovered the bodies of 11 of the 12 policemen killed after an ambush in the oil-rich Niger Delta on Friday, police have said.

Some of the bodies had been mutilated and burnt beyond recognition, AFP news agency quoted witnesses as saying.

Last week, a militant group said it would it resume attacks after its leader, Henry Okah, was jailed for a bombing campaign in 2010.

However, many people are poor, fueling resentment towards the national government and oil companies.

At the weekend, the Movement for the Emancipation of the Niger Delta (MEND) said it had ambushed a police boat in the creeks and waterways of Bayelsa state, killing the policemen.

Police spokesman Alex Akhigbe said 11 bodies had been recovered, while one was still unaccounted for.

The bodies were transported by boat to the regional capital, Yenagoa, while relatives waited at a morgue, Nigeria’s Vanguard newspaper reports.

At the weekend, police denied the attack was linked to the jailing of Okah.

They said it involved a dispute among militants over amnesty payments given by the government.

Police boats were escorting an ex-militant to a funeral when one of the boats broke down and became a “soft target” for gunmen, a police spokesman said.

MEND had been fighting to gain a greater share of the oil wealth from its part of southern Nigeria, but had been inactive since a 2009 amnesty was put in place.

Okah, its leader, was sentenced to 24 years in prison last month for masterminding bomb attacks in the capital of Abuja in 2010.

Nigeria is Africa’s largest oil producer.”*

*Note: By accounts with which I am familiar, Angola may now be Africa’s largest oil producer.

A newborn in the Niger Delta

An NGO researcher just conducted an interview with me regarding the state of service delivery, i.e. social and government services, in the Niger Delta. Below are a few of the transcribed questions and answers.

1. How would you describe the current state of service delivery[1] for most communities in the Niger Delta? 

Service delivery is non-existent in most areas, and sporadic or haphazard in the remaining ones.  I think that part of the reason communities so often look to oil companies to offer social services and build basic infrastructure is that the state has been so wholly unable to do any of these things since independence.  It is as if communities have given up on their own government ever acting as a government should, which requires providing basic services to its population. As is common in countries with rampant corruption, projects often begin but then are abandoned because funds disappeared or there was a change in management of that project. In the Niger Delta there are half-finished bridges, classrooms without roofs, and empty hospitals that don’t even have electricity. Additionally, a lack of human capital and maintenance of services mean that as soon as any project is finished, it will only be a matter of time until it is useless because no one can perform maintenance.  It seems that almost as soon as a road is finished, poor construction materials mean that it needs to be fixed again but there is mechanism in which to have that road repaired. This lack of maintenance is an issue that only capacity-building can address.

2. Whose responsibility do you believe it is to improve service delivery in the region, e.g. government agencies like MNDA or the NDDC, or oil companies operating in the region?

It is responsibility of government agencies to improve social services.  The basis of democracy is that citizens pay taxes to their government, vote for their leaders, and then those leaders use those taxes in a responsible manner to provide necessary collective goods that improve everyone’s lives.  Because the Nigerian government can rely on oil profits rather than taxes, and corruption makes elections less meaningful, there is no accountability of state actors towards the citizenry. Part of this government duty is to monitor the behavior of private economic actors like oil companies. Although I believe staunchly in corporate responsibility, it is impossible for a corporation to fully monitor itself; by definition monitoring must come from an outside party, like a government agency.

3. What impact do you think the current state of service delivery has on peace and conflict in the Niger Delta region? 

Lack of service delivery has increased rates of poverty and negatively impacted quality of life, which gives people “nothing to lose” when it comes to engaging in violence.  It also creates a dynamic in which too many people are competing for scant social services and resources, leading to increased tensions. Poverty and lack of services drives rural dwellers into cities like Port Harcourt and Yenagoa, where they may come into conflict with residents already living there, be forced into crime out of necessity, and and don’t have kinship or community networks that would otherwise mitigate their propensity for violence.

 4. Do you think that improved service delivery would increase security in the region?

Yes. Mostly obviously, it would remove violence caused by need, in other words, conflicts over obtaining basic goods.  Additionally, it would remove the incentive for rural Nigerians to move to new areas in search of such services, thus minimizing the conflict that occurs among internally displaces populations and between new urban dwellers and older ones.

1. In your opinion, what are the conditions that drive individuals toward militancy in the Niger Delta?

Poverty alone is not a causal mechanism for insurgency, nor does simply being a weak state cause collective violence.  In the Niger Delta it is a two-part dynamic in which poverty amidst vast oil wealth combines with weak state apparatuses to create insurgency. The former creates the incentives and the latter provides the conditions. Niger Deltans suffer from deprivation while seeing that resources, e.g. oil profits, exist that could be bettering their lot, fostering a sense of injustice. It is easy for militant leaders to galvanize this injustice and organize it along ethnic lines due to the often contentious tribal diversity of the Delta. Then, the Nigerian government does not have the capacity or sometimes the will to stop the social disorder, creating a sense of stateless that is conducive to violence.

2. Do you believe these are the same root causes for cultism and other such violent activity in the Niger Delta region?

To an extent, but I do see the insurgency as analytically different from cultism and other forms of collective violence. The particular nature of oil drives militancy, and group violence unrelated to natural resources is in many ways a separate issue. Groups with income flows from control of oil are more likely to attract opportunistic participants, make insurgents like those of MEND primarily economic actors (insurgents have not been ideologically driven for many years, if they ever were). Unlike cultism and other forms of collective violence, militancy requires clear leadership, sustained engagement, access to arms, and it must have a local population on which it can rely on for resources (Weinstein 2006). On the other hand, other collective violence campaigns unrelated to oil can arise more sporadically, use fewer or homemade weapons, and I think can have more porous membership networks.

3. What expectations do you think that the Amnesty Program created for ex-militants and their communities?

From my observations, there was little expectation among the average Niger Deltan that the Amnesty would have a lasting impact on the insurgency in the long-term, because the number of men who could pass through the program was far fewer than the number of unemployed youths attracted to militant engagement.  Militants themselves could have been hopeful for personal gains, but that was an individual aspiration.

 4. Since after the declaration of the Amnesty Program, have you seen any positive service delivery or infrastructural changes in the region?

No.  From what I understand, the Amnesty Program has provided stipends and job training for former militants, but has not affected service delivery for communities.

5.What do you think will happen in the region after the Amnesty Program ends in 2015?

When the Amnesty Program ends in 2015, insurgency will go up to its previous levels since the overall conditions that led to start of insurgency, such as rampant unemployment, have not changed. The problem with the amnesty is that creating some jobs does not stop violence. Job creation temporarily lowers rates of violence because employment pulls non-committed militants away from the movement and simply keeps more men busy so they have less time for violence, but in a region with such poverty and lawlessness there will always be more recruits to replace those who join an amnesty. Obviously if every Nigerian was gainfully employed with a good standard of living then that would presumably end the insurgency, since violence is generally inversely proportional to economic development. For me however, the sheer number of unemployed men in the Delta, surely hovering around 50%, will always outpace any increase in the number of local jobs created with any government program, so as one militant leaves the movement another one will replace him. So, theoretically non-oil jobs would probably end violence but realistically that would be improbably just based on the population number of the Delta. The Amnesty Program has always just been a temporary fix in which insurgents were paid to stop engaging in violence.

Related articles

• Police missing in Niger Delta ambush (bbc.co.uk)
• Ex-militants threaten FG over amnesty (vanguardngr.com)

Bye-bye Big Men

Governance in much of Africa is visibly improving, though progress is uneven

Infrastructure meets tradition

LEAVING THE IVORIAN commercial capital, Abidjan, at 7am, you run straight into what is known as the civil-servant rush hour. The president has decreed that administrators must be at their desks by 7.30am, and most are. A Western ambassador says disbelievingly, “If you are five minutes late for a meeting, you have missed the first five minutes.” Having travelled to the office on elevated dual carriageways, civil servants leap into lifts and ride up to their desks on the upper floors of modern glass towers. Some sneakily keep an iPad or some other electronic gadget with which to while away the time.

Governance in Côte d’Ivoire is rarely as good as it looks. Bribes still solve problems faster than meetings. The opposition spitefully boycotted the most recent elections. Deep cleavages run across the political landscape. And yet the national accounts are in order, debts are coming down and new roads are being built. This is the picture in much of Africa. The allocation of power is becoming fairer and its use more competent, as in Ghana, though there is much more to do, especially in resource-rich nations like Nigeria.

African governments are beginning to accept the importance of good governance, not least for improving the lot of the poor. Rulers travelling on presidential planes strut their stuff at the World Economic Forum in Davos and declare their undying interest in “capacity-building”. Behind the jargon a remarkable change is taking place. The default means of allocating power in Africa now is to hold elections, and elections are generally becoming fairer. Sceptics rightly bemoan voter fraud and intimidation, and plenty of polls are still stolen. But the margins of victory that autocrats dare to award themselves are shrinking. Indeed, quite a few have discovered, in forced retirement, that by allowing notional democracy they have started something they cannot stop.

Until 1991 it was almost unknown for a ruling party to be peacefully ousted at the polls. Since Benin ticked up a first in that year it has happened almost three dozen times. In many countries such an event cements tentative gains, as it did in Ghana in 1992 and again in 2000. Crossing the border from Côte d’Ivoire into Ghana, the visitor immediately becomes aware that democratic expression here is unrestrained. An election is under way and supporters of the ruling party and the opposition cheerfully line one side of the road each, holding megaphones and waving banners. Opinion polls put the two main parties neck-and-neck even though the present government has achieved impressive economic growth: GDP increased by 14% in 2011.

After a few hours on the road, just past the city of Takoradi, the country’s economic turbo-charger comes into view. Pipelines run along the road and diggers make huge holes for storage tanks. A vast oilfield has been found nearby, but celebrations were muted. Ghanaians know that a resource bonanza can be dangerous and politicians may get greedy, so administrators are now being trained in handling a large influx of oil revenues. At a leafy campus with neatly trimmed grass on the outskirts of Accra, the capital, they learn about transparency, accountability and the intricacies of transfer pricing.

This stuff matters. Some of the biggest obstacles to better governance are not murderous tyrants but a lack of bureaucratic competence and a divided opposition. Ageing autocrats die eventually, but bad habits will not go away of their own accord. Robert Mugabe, Zimbabwe’s dictator, now aged 89, could be deposed if rivals, with whom he has been forced to share power since the most recent election, were better at their jobs. Still, in neighbouring Zambia opposition politicians outmanoeuvred a tired government in 2011 and took office.

Luckily, competence is on the rise in Africa. White elephants are still being created, but are now generally designed to serve larger and more inclusive groups of people. South Africa’s football stadiums built for the 2010 World Cup (pictured) are in that category, as are many new dams and airports.

Politicians and officials are learning new skills to run such projects. It is hard to quantify the change, but traipsing in and out of ministries across the continent builds up a measure of confidence. There are plenty of shortcomings and allegations of corruption, but in a fair number of African countries the bureaucracies are not far behind standards in, say, India.

Transport management in particular has become much better. A bus ride from Accra across three African borders in one day is instructive. Departing at sunrise, the 15-seater easily crosses into Togo where it passes well-run port installations and warehouses. An hour later it arrives in Benin. The driver ignores the outstretched hands of traffic policemen. After a few more hours the bus reaches Nigeria amid throngs of packed lorries on their way to Onitsha, Africa’s largest market. Most of the bus passengers are professionals, including several telecoms engineers who commute weekly. All four countries have sensible transit policies and trade actively with each other.

White elephants are still being created, but now generally for larger and more inclusive groups of people

What has brought about this change? Across Africa both voters and leaders are better educated than they were even half a generation ago. Many of those in power are the first in their families with a university degree. Standards of political debate have risen thanks to better schools, modern media and the return of diaspora members who bring new ideas with them.

One lesson in particular seems to have sunk in: the need for solid and durable institutions. In the past, good practice all too often lapsed quickly after a change of incumbent. Foreign advisers ram home the need for institution-building. “Everyone is nagging us about it, from TB to Mo,” says an Oxford-educated official, referring to Tony Blair, a former British prime minister who now runs an African governance initiative, and Mo Ibrahim, an Anglo-Sudanese telecoms billionaire who awards prizes for political leadership.

Size matters here. Benin is nicely democratic—it has more political parties than cities—but with a mere 9m people it carries little weight. Nigeria, on the other hand, has 160m, so along with Kenya and South Africa it sets the tone in regional meetings and institutions—and it still struggles to get things right. When the parliament’s speaker needed a bit of extra cash before leaving office in 2011 (on top of more than $1m a year he got in pay and expenses) he gave himself a $65m government loan. He was charged but later acquitted.

Nigeria is famous for corruption, yet at issue is more than thievery. Members of the elite systematically loot state coffers, then subvert the electoral system to protect themselves. Everybody knows it, and a few straight arrows in the government talk about it openly. Perhaps half the substantial (but misreported) oil revenues of Africa’s biggest oil producer go missing. Moderate estimates suggest that at least $4 billion-8 billion is stolen every year, money that could pay for schools and hospitals. One official reckons the country has lost more than $380 billion since independence in 1960. Yet not a single politician has been imprisoned for graft. The day that Nigeria works properly, the battle for Africa’s future will have been won.

One step at a time

Such an outcome is not inconceivable. Take Lagos, the commercial capital, long a byword for chaos and skulduggery. The bus from Accra inches forward on an eight-lane bridge in dense traffic. The last 30 miles take longer than the previous 300. The city is choking. Roads jam up daily. Commuters sometimes sleep in their cars. Businessmen schedule at most two out-of-office meetings a day. Built on a swamp by the Atlantic, Lagos spreads out unplanned. Two out of three residents live in wooden slums. Already home to 20m people, the city is expected to double in size within a generation. When most of the public infrastructure was built in the 1970s, the population was perhaps 2m.

But help is on the way. The governor of Lagos, Babatunde Fashola, has begun an impressive campaign to clean up the city. Yaba bus station, where the bus eventually arrives at 9pm, used to be full of pickpockets and rowdy vendors. Now there is an orderly queue for taxis. The Chinese are building a vast urban rail network. Public buses have been assigned separate lanes. When the governor heard they were being used by unauthorised vehicles, he strode out one morning and made a citizen arrest of a stunned colonel.

The governor is playing to the crowd, but why not? The transformation of Lagos is worth trumpeting. Its economy is now bigger than the whole of Kenya’s. Tax revenue has increased from $4m to $97m a month in little more than a decade. Tax rates have stayed the same but the amounts being collected have risen dramatically thanks to the deployment of private tax “farmers” who get a commission.

Better governance is creeping beyond the metropolis. When your correspondent e-mails the governor of Ekiti state in impoverished central Nigeria he gets a reply within minutes, with the entire cabinet copied in and being told to assist with a visit. After a six-hour drive north, seven interviews across the capital, Ado Ekiti, are arranged in the space of a few hours. Cabinet members are mostly foreign-educated and highly motivated and have private-sector experience. A new employment agency sends out job advertisements by text message. All secondary-school pupils are getting free laptops with solar panels. All civil servants, including teachers, are tested annually; those who fail stand to lose their job.

To be sure, this sort of governance is still the exception. A visit to the capital, Abuja, another six-hour drive north flanked by red earth dotted with filthy shacks, is sobering. The seat of government moved here two decades ago to escape swampy Lagos; now it is as chaotic as the former capital. A programme to subsidise fuel alone cost the government $6.8 billion in theft in three years (on top of the billions wasted on the market-distorting subsidy itself). Shady deals between officials and oil companies have swallowed an estimated $29 billion in the past decade. Yet more than half of all Nigerians live on less than $1 per day and get almost no electricity because the grid has collapsed.

Still, even Abuja is not without hope. Inside gleaming ministerial palaces dotted along new ring roads a band of reformers is at work. They are in a minority, but seemingly fearless. The central-bank governor has started cleaning up the financial sector. The finance minister, Ngozi Okonjo-Iweala (who recently published a memoir entitled “Reforming the Unreformable”), is reducing fuel subsidies and thus the scope for theft. A special task force in the president’s office is privatizing electricity assets. The reformers have encountered strong opposition, as much from an understandably suspicious public as from the wily crooks who stand to lose out. The good guys are winning, but it will be a long time before they triumph.

The court did find that the Shell Petroleum Development Company of Nigeria (SPDC), a Nigerian subsidiary, could have prevented the sabotage in one case by plugging up the well but then acknowledged that the SPDC subsequently contained the leak. Nevertheless, Shell has been ordered to pay compensation to one farmer and has agreed to do so.

The verdict is not necessarily a total defeat for Niger Deltans.  Although the farmers did not prevail, the case does establish that cases against Dutch companies for misdeed abroad can be heard in Dutch courts. Friends of the Earth announced that the case was intended as a test and that the organization is satisfied by the precedent. The case been followed closely by those who have been interested in the Saro-Wiwa and Kiobel rulings.

Read details of the ruling here.

Related articles:

• Dutch court: Shell partly responsible for Niger Delta pollution (reuters.com)
• Dutch court finds Shell guilty of oil pollution in Nigeria (vanguardngr.com)
• Shell’s Nigerian subsidiary responsible for spill in Niger Delta, says Dutch court (explorationanddevelopment.energy-business-review.com)

Last year, the Council on Foreign Relations published an article about the two current narratives on prospects for Nigeria. The first is positive when one notes the last peaceful handover of Presidential power. Events there have unfolded rather favorably since its Umaru Yar’Adua fell ill in late 2009 and the country was left leaderless. That raised fears of a military coup, but then Goodluck Jonathan emerged to fill the power vacuum, first as an extraconstitutional ‘acting president,’ then as a constitutional successor after Yar’Adua’s death and finally as the elected executive following the 2011 elections. This optimistic narrative notes that those elections were praised by international observers as better than in the past—and hence they reflected the will of the national majority. An amnesty for militants in the oil-rich Niger Delta, combined with disarmament, training and reintegration, ended a long insurrection there.

One serious specter, however, still haunts the country—the expansion of the Islamic ‘terrorist group’ Boko Haram, with its global connections. Hence, Nigeria’s security challenge has become internationalized, and Westerners grappling with Islamist movements need to keep a sharp eye on that situation.”

Although it is highly debatable whether the Amnesty Programme can be said to have “ended” the oil insurgency (see Hinshaw’s article), it is true that Boko Haram is by far the most pressing security issue in the country now.  It is becoming even more worrisome since the rise of al-Qaeda in post-coup Mali, a country with porous borders that is poised to become an epicenter for fundamentalism not only in the Sahel but West and East Africa as well.  The Council on Foreign Relations has created the Niger Security Tracker in order to follow such developments.

The Nigeria Security Tracker (NST), a project of the Council on Foreign Relations’ Africa program, documents and maps violence in Nigeria that is motivated by political, economic, or social grievances. They write, “Different groups in Nigeria resort to violence. The militant Islamist movement Boko Haram is active in northern Nigeria. Violence among ethnic groups, farmers, and herdsmen sometimes acquires religious overtones. A new generation of Niger Delta militants threatens war against the state. Government soldiers kill civilians indiscriminately. Police are notorious for extrajudicial murder.”

This database on violence is the only one I know of that was updated weekly and the interactive maps on the website can be broken down by state, a feature particularly important when looking at Boko Haram’s geographic patterns. For 2012:

Reblogged from Blogala Maho:

I came across this blog post about the number of countries in Africa (54) after reading about world birth rates on the CIA World Factbook site. In looking at a list of the countries in the world with the highest birth rates, I saw that with the exception of Afghanistan and East Timor, all top thirty were African countries. Niger has the highest birthrate in the world (and is considered the poorest by most measurements) and Nigeria is ranked #13. Seeing those 28 slots taken by African countries made me think that that must be over half of Africa, and it is.