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.

 

BBC reports that bodies of Nigerian police found after an ambush in the Niger Delta

April 10, 2013

Nigeria’s Deadly Delta

“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.

Remarks on social services in the Niger Delta

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.

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[1] ”Service delivery” means the quality and availability of essential services, such as health care, primary education,  and basic infrastructure such as reliable access to water, electricity, and road networks.

Further remarks on Niger Delta violence and amnesties

The second section of the interview (see post above) focused on the militancy in the Niger Delta and included the following questions and my responses:

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)

Reports | National Reports | Africa | Nigeria | Human Development Reports (HDR) | United Nations Development Programme (UNDP)

Reports | National Reports | Africa | Nigeria | Human Development Reports (HDR) | United Nations Development Programme (UNDP).

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:

• 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)

 

The Council on Foreign Relations tracks security in Nigeria

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:

A powerful image of oil…

Sira Syndrome among the Ogonis

During my field research in Ogoniland I came across a cultural practice I haven’t encountered anywhere else in Africa. In some Ogoni communities of Rivers State the oldest or only daughter in a family is not permitted to marry or leave her father’s house, and she is socially (not physically) wedded to her father for life. She produces offspring with one or several male community members, offspring who take her own father’s name and become his heirs. The purpose of this is for her to have as many children as possible so they can work the family’s plot of land. Children are labor, labor generates income, and so fathers’ keeping their daughters at home is an income-generating practice. The tradition is called “Sira” and these daughters are described by some as having “Sira syndrome.”

I have spent some time thinking about the origins of Sira. I briefly hypothesized that perhaps in past generations male mortality rates were so much higher than that of women that there simply were not enough men to go around as legal husbands for single women, which is the historical explanation for the implementation of Islamic polygamy after many Muslim fighters died in religious battles in the 7th century. But if this was the case, why didn’t the practice spread to neighboring communities with a similar sex imbalance? Also, I think it is safe to say most men would like more family income, so why is it a uniquely Ogoni tradition? I haven’t found any answers to this question of how it originated.

Currently, the dynamics of the Sira households with which I am familiar vary. The woman may or may not have say over with which men she procreates, and the woman’s own father may be the one to make the decision. In some instances Siras freely take on one informal “husband” who fathers all or most of her offspring, while in other homes Siras have different fathers for each of her children. It is my understanding that in some communities, men may bring an offering or there can be a ceremony when a Sira “matches,” while in others it is strictly a numbers game in which the greater the sexual partners the greater the chance she will have many labor-producing progeny. Since such courtship is a delicate matter to discuss so I wasn’t able to learn much about how Siras match with their sexual partners.

It did seem fairly clear to me however that the practice is slowing dying out. Like most social changes I observed in Nigeria, rapid urbanization undermines such a tradition. Women moving into the city of Port Harcourt for work would be logistically unable to maintain the institution of Sira, and such a life experience would possibly alter their views of their filial obligations to stay as the social property of their fathers. I have noticed that rural-to-urban migrants also may distance themselves from traditional practices they consider too “bush-like” (their term, not mine). The gender differential in rural Rivers State, in which men have left farms in droves to seek city employment, may also affect how Sira is practiced, as women outnumber men in rural areas. Additionally, some I spoke to described the Sira practice as unchristian, as in, “This village stopped practicing Sira because we are Christians and the Bible says one man and one woman should marry.”

The practice of Sira presents a paradox in which culture is simultaneously a constricting but in a sense almost (but not quite) privileging force. It fundamentally violates the daughters’ right to choose their partners and have autonomy over their bodies. It is an oppressive practice because it infantilizes adult women. Being socially married to their fathers limits their choices, and for students of development theory, choices = development. Having their fathers’ determining their sexual partners violates their dignity, and for students of human rights theory, dignity = human rights. Yet at the same time, being a Sira did not appear, to me anyway, to be considered shameful. Ogonis did not speak of Siras in derogatory terms, nor did Siras complain to me about their status (although a life without many life choices often teaches us to accept our lot). I have met Siras with university degrees, some who work white-collar jobs, and others who have led protests and are politically conscious. Could these particular women have actually experienced more personal freedoms because they did not have a legal husband making demands on them? It also occurred to me that being a Sira could be a partially beneficial status because it is a purely Ogoni practice, so perhaps this status makes such women symbols of their ethnic group’s character, unique bearers of collective identity in their communities. As a self-identified feminist I maintain that the practice is detrimental to the status of women and I look forward to a time when the institution no longer exists; however, I have to admit that there are plenty of women in Africa and across the globe who have freely chosen their husbands and currently live under more subjugating conditions than some of the Siras I encountered.

The lesson for me: The tradition of Sira and similar practices of controlling women’s sexual behavior does not oppress such women on its own, but rather poverty, lack of education, misogyny and patriarchy combine to oppress women, and such practices are actually an effect of such oppression and not a cause.

No weddings for Siras…

Thoughts? I would love to learn more from my Nigerian readers who might be able to add any detail or illuminate any of the questions I asked above.

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.