Tag Archives: courts

An interview from the NGO field

I had the opportunity to interact with many NGO actors in the Niger Delta. An incredibly helpful organization for me was Social Action in Port Harcourt, Rivers State. The Executive Director of Social Action introduced me to Fyneface D. Fyneface, who eventually became a research assistant. To offer a Nigerian’s perspective, below are some his answers to my questions about the issue of Nigerian oil.

Q: Describe the relationship between law and reforming the oil problem.

A: Nigerian law allows the oil companies to come in and operate in the region. Yet, the oil companies do not obey the laws that are supposed to protect the environment and make the people benefit from the resources in their land, thus, making the “black gold” a curse rather than a blessing to the people. The people have reacted to the underdevelopment, unemployment, environmental and social problems in the region through different struggles, including protests, litigation and lately, militancy by idle youths in the name of fighting the Niger Delta cause from the angle they deem fit. Yet, no significant change or reform has been noticed in the oil sector as expected by the people of the region.

Q: Does litigation help the Niger Delta cause?

A: Litigation has not helped the Niger Delta to find solutions to the oil problem. This is because many Niger Deltans see an oil company as too big for them to sue as an individual, especially as they don’t have the money to go into litigation with an oil company that is richer, and also because they’re aware that they cannot get justice—not in their life times and not even in foreign courts. Examples are the popular Royal Dutch Shell Vs. Kiobel in the U.S. Supreme court, and the Niger Delta Four Farmers vs. Royal Dutch Shell at The Hague in which the court blamed the woes of the people on “sabotage”.

Q: What does the average Niger Deltan think about the role of law in solving oil problems?

A: The average Niger Deltan does not think the law can play any significant role in solving the Niger Delta problem. Not only because they have not see any successful land-mark judgment, but also because they lack confidence in the law in resolving the problems. The oil industry laws in Nigeria can only bark but cannot bite. An example is the law on gas flaring, which even the Nigerian government has not been able to implement to force the oil companies to stop the flaring that has been occurring since the 1950′s. A typical Niger Deltan would tell you that it is only God that can solve the problems for them, not the law, not the government, and not even the international community.

The Kioble case is dismissed in the Supreme Court

In a unanimous ruling this past Wednesday, the U.S. Supreme Court dismissed the Kiobel case against Shell in Nigeria. The Kiobel case was filed by Esther Kiobel, the wife of a former activist, and alleges that Shell collaborated with the Abacha regime to violently suppress oil reform activities in the 1990′s.  The case brings claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention.

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.

 

Dutch court rules mostly in favor of Shell

Four Nigerian farmers of the Goi and Oruma villages, supported by the Dutch NGO Friends of the Earth and the local Environmental Rights Action, sued Royal Dutch Shell in the Dutch District Court of The Hague for four oil spills between 2004 and 2009. This past Wednesday, the court ruled that the oil spills were caused by sabotage, and that Royal Dutch Shell is not liable towards 3 of the 4 farmers. It dismissed the claims of the Friends of the Earth. The court’s decision would support the idea that much of the Niger Delta pollution is caused by criminal activity carried out by locals, which has been the argument of  oil companies defending their role in the environmental damage there.

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:

 

Gbagbo supporters entering the ICC clash with police

As mentioned in my previous two posts, last week’s start of the International Criminal Court‘s case against the former President of Cote d’Ivoire was historic.  He is the most high-profile defendant to date, and the first head of state to face charges.  Many Ivorians and members of the Ivorian diaspora are following the case closely, and emotionally.  According to those I spoke with on Tuesday, so many people hoped to attend Gbagbo’s pre-trial that there was a sign-up list online in order to fill the 75 seats in the public viewing gallery fairly.  In the 30 minutes before the start of proceedings, police escorted in groups of half a dozen people or so, and many hopeful attendees began to complain that police were using a different list than that online.  The ICC’s front desk employees had told me earlier that morning that it was first come first serve, and that whoever lined up soonest would enter.

However, there was no semblance of any orderly line, and people began to argue with others waiting to enter, and then some hostility began to be directed at the police. One tearful woman approached an escorted group as they passed through the ICC’s street entrances, yelling at them that they were criminals and murders.  Others began pushing their way to the front of the line, claiming a friend was saving them a place.  As police tried to gently usher people away from the buildings entrance, demonstrators who had been at the pro-Gbagbo rally across the street became agitated and screamed at the police officers.

Across the street from the Court, near the rally, perhaps a hundred riot police emerged from armored vehicles, although no riot ended up taking place.  From my vantage point, the Dutch police were impressive in their professionalism.  They remained exceedingly calm and respectful, even when Gbagbo supporters were not. I did not observe any excessive violence on the part of the police, and comparably speaking, I can’t imagine police in any other country showing such restraint. I noted that perhaps 1/3 of the riot officers were female, a much higher percentage than I think would be present in the U.S. in such a situation.

Right around the time when Gbagbo’s hearing was supposed to start, I looked across the street to see a young Ivorian man getting physical with another man, and then saw him take a full swing at a police officer when the officer tried to break up the fight.  As soon as he tried to punch that officer, any hope of getting in to the hearing was over for all of us.  The doors to the Court were immediately locked, police brought out German Shepherds, and then they began to close off the sidewalk.

Here are two clips I took of the “line” to enter the Court.  The first shows the arrest of the man with the yellow bag above, and the second clip is of Gbagbo supporters getting frustrated when they were not permitted entrance. See:

Pro-Gbagbo Rally Outside of the International Criminal Court

Laurent Gbagbo, Président de la République (Cô...

Last week was historic for the International Criminal Court. It marked the pre-trial of the case against Laurent Gbagbo, the first former head of state to ever face charges in the ICC. I arrived on Tuesday simply hoping to see the inside of the building, but instead spent the afternoon watching demonstrators clash with Dutch police, and each other.

I was familiar with the Gbagbo case before I arrived and it was a simply a coincidence that my visit coincided with the first day of his pre-trial, which he did not attend. I knew that Gbagbo was installed as President of Cote d’Ivoire in 2000 and was in power during the 2002 civil war that split the country into politically contentious north and south regions. He served for a decade, based mostly on his continual stalling of his second election, and when Alassane Outtara was declared the winner of the 2010 elections Gbagbo refused to step down. He and his supporters argued that Outtara rigged the election (which is really hard to do unless the candidate is the incumbent) and Gbagbo swore himself into office again, despite that international observers called the voting more-or-less fair and that Gbagbo had already serve the equivalent of the constitutional limit of two five-year terms. Cote d’Ivoire became an even more volatile place in November 2010 when both Gbagbo and Outtara began to use violence to ensure their respective presidencies. The post-election conflict received the most media attention when a mass grave was discovered containing the bodies of known Outtara supporters.

According to the Case Information Sheet on “Situation in the Cote d’Ivoire: The Prosecutor v. Laurent Gbagbo” provided to me at the ICC’s front desk, pro-Gbagbo forces purportedly used widespread and systematic attacks against specific ethnic or religious communities that were supporting Outtara. The ICC is alleging that murder, rape and other sexual violence, persecution, and other inhuman acts were committed over an extended time period and over large geographic areas (I’m using the ICC’s wording). Gbagbo is being called an indirect co-perpetrator for four counts of crimes against humanity. Although Cote d’Ivoire is not party to the Rome State that founded the ICC, it accepted its jurisdiction in April 2003, which was ironically under Gbagbo’s regime. Outtara reconfirmed the country’s acceptance of this jurisdiction and at the end of last year the former President was arrested in the capital of Abidjan and transferred to The Hague. He has been fit to stand trial, and after being found indigent, the Court has borne the cost of his Defense.

Based on the violence that has occurred in Cote d’Ivoire over the last decade and the 2010 election strife, I was not totally surprised to see a rally outside the ICC on Tuesday. I became confused though when I approached the demonstration to see participants wearing t-shirts saying “Free Gbagbo” and holding banners calling Gbagbo a political prisoner. I initially assumed the 200+ demonstrators were there to see justice served against a tyrant, but on the contrary, they were loyal to Gbagbo and had come to support him.

I spent an hour or so talking with various protesters. Although a good number lived in the Netherlands, most seemed to have come from all over Western Europe, telling me they spent the night on buses from London, Paris, Berlin, and Milan to attend and would turn around and get back on the bus that same afternoon. I heard a litany of reasons for their presence there, with the most simple being that Gbagbo was a family friend or that he was born in the same community as the protester. Some said they came out because they felt he would be a better ruler than Outtara, while others felt he had been a scapegoat for an out-of-control military that acted of its own accord. Many voiced anger that Gbagbo’s inner circle have all been imprisoned under Outtara, including the former First Lady Simone Hehivet Gbagbo, his son, Michel Gbagbo, and former Prime Minister Pascal Affi N’Guessan. Many chanted about one-sided justice, in which both sides had committed violence yet only Gbagbo was arrested. I was handed a leaflet calling the 2010 election a France-backed coup, a form of neocolonialism. A different leaflet I received showed graphic photos of dead bodies from a massacre that allegedly occurred on July 20, 2012, captions stating that Ouattara used the military to burn opponents alive and that he had established concentration camps. Another Ivorian-French man at the rally gave me an information sheet that had nothing to do with the 2010 election violence at all, but rather was demanding an answer as to who was responsible for the November 2004 bombing of a French military camp in Bouaké, which killed 9 French soldiers, one American civilian, and injured 38 others. The pro-Gbagbo demonstration simply gave him an audience and platform he needed to get his message across.

Here is some footage I took of the rally in its early hours when it was at its calmest:

 

How to visit the International Criminal Court

English: International Criminal Court (ICC) logo

ICC logo

A recent day at the International Criminal Court in The Hague, Netherlands was one of the most professionally interesting experiences I have had.  A Dutch friend took care of the logistics and in hindsight, I realize it was a surprisingly easy thing to do and and any foreigner could also visit. The Hague is the government seat of the Netherlands and just a 45-minute train ride from Amsterdam.  At the main station in The Hague, we rented bikes and peddled over to the Court using the maps functions on our smart phones. We found a surprisingly humble building, but later learned that the current building is an interim premises. Scheduled to open in 2015, the permanent premises designed by a Danish architectural firm will be located at Alexanderkazerne (Alexander Barracks), which will be closer to the detention center and be part of the International Zone of the Hague.

The Court’s lists their schedule on their website, http://www.icc-cpi.int/Menus/ICC/Home, and we chose to attend the hearings of Jean-Pierre Bemba Gombo and were especially interested in that of Laurent Gbagbo.  Bemba is a Congolese former military commander on trial since 2009 for “crimes against the civilian population, in particular, rape murder and pillaging” in the Central African Republic from 2002-2003. The first former head of state to be charged in the ICC, Gbagbo was the President of Cote d’Ivoire and is accused of using murder and sexual violence to try to maintain power after he lost the 2010 election there. We were able to sit in on Bemba’s trial, but for reasons described in my post on the pro-Gbagbo demonstrations, we weren’t able to attend the latter’s pre-trial hearing.

I had expected a busy building, full of shuffling lawyers, judges, and other legal professionals, but that was so in the morning during Bemba’s hearing.  It was virtually empty except for the single guard at the security checkpoint and three employees at the front desk.  A Dutch man and Ghanaian woman greeted us after the security point. They instructed us as to the proper decorum in the public viewing gallery of the court. The rules were what anyone should expect them to be inside a courtroom, including no talking, gesturing, pointing, or use of recording devices. Visitors must also rise when the judges enter and leave the courtroom.

After depositing our bags and valuables in the lockers between the reception and the public viewing gallery, a security guard led us into the gallery.  It was so small, and more exciting for me, we could sit right in the front row just 30 feet from Bemba himself, with nothing dividing us but a wall of glass.  He is a physically huge man, and sat back in the very corner of the room wearing a seat and tie, looking extremely bored. When the two of us sat down he looked at us, probably wondering why we were there.  It happened to be a closed session, so we could watch but could not hear anything (Gbagbo’s later afternoon session was open with audio). For anyone who plans to visit, if you take a seat nearer the door to the gallery, that will put you near the prosecution, and if you walk further into the room, that puts you near the defendant.  I am not sure if that means we were symbolically supporting Bemba since we sat nearer the defense side of the room, support which we obviously had not intended to give, but the far side is certainly a more interesting vantage point to view the accused. Here is the layout of the courtroom that the front desk gave us, and we sat in the top left corner of the Public Gallery squares to see Bemba up close:

It was heartening to see that the three presiding judges were all female and from different regions of the world.  In fact, I was quite pleased with both the gender and geographic balance of the Court. The ICC’s staff of judges seems to be exactly half male and half female, and there is a good number of judges and other legal actors from the global south and smaller countries working at the ICC. (There are no American judges since G. W. “unsigned” Clinton’s signature on the Rome Treaty that founded the ICC and thus the U.S. is not a party.) The prosecution and defense teams, as well as the legal representatives for the victims, are lead by sub-Saharan Africans. The lead Prosecutor is a Gambian named Fatou Bensouda, who also worked on the Rwanda Tribunal, while Aime Kilolo-Musamba heads the Defense Council (paid for by stipends out of Bemba’s frozen accounts).

Admittedly, we observed Bemba’s trial for less than an hour because there wasn’t much to take in because of the lack of audio. For anyone else who would like to see international human right law at work, I would suggest making sure that the case is “open” with audio.  Another piece of advice is to really take advantage of the expertise of the ICC employees at the front desk.  We chatted with an extremely helpful Ghanaian woman in charge of disseminating information on the court to visitors, and she was a trove of information that just can’t be found anywhere else.

I went, I saw, I learned.

Democracy Now’s Video on Kiobel

Along with same-sex marriage and affirmative action, the Supreme Court will re-examine the issue of the Alien Tort Statute (ATS) as means for foreigners to sue American corporation in U.S. courts. The new 8-month session began this week and the Kiobel case remains on the docket, in which 12 Niger Deltan petitioners are suing Royal Dutch Shell Petroleum. This case has been discussed in previous posts here.

Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy : SCOTUSblog

Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy : SCOTUSblog.

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Corporate Fines and Settlements (BP, Shell, and Exxon)

Corporate Fines and Settlements (BP, Shell, and Exxon)

You might want to click on it to enlarge it, but this infogram demonstrates the largest corporate fines and settlements for the last seven years. I am most interested in the disparity among the oil companies. Exxon-Valdez paid $507 million in fines for its 1989 spill in Alaska (which has not been totally cleaned up yet). This is just 11% of its annual earnings. In contrast, the BP Gulf of Mexico spill cost that corporation 110% of its annual earnings, and rightly so. I would attribute this to heightened environmental sensitives regarding environmental damage in the U.S. However, unless I am not interpreting it correctly, the display also says that Shell paid 6% of annual earnings to settle a Niger Delta case in 2000. Perhaps we have different sources of data, but Shell’s earnings in 2006 were $25.36-25.44 billion and not just over 26 billion, but I suppose when analyzing such an absurd profit that doesn’t make much difference. My main point is that the well-known Wiwa settlement occurred in 2009, not 2000, and it was for $15.5 million, not $1.5 billion. This large discrepancy means the settlement was actually a mere .004% of annual earnings, not 6%. To put that in perspective, the Shell corporation earns about $2.5 million per hour, so they worked off the irreversible destruction of millions’ of farmers and fishermen’s land in just over 6 hours.

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.