Settlement Reached in Human Rights Cases Against Royal Dutch/Shell

On Eve of Trial, Settlement Agreements Provide $15.5 Million for Compensation to Nigerian Human Rights Activists and to Establish Trust Fund

Reprinted from Wiwavshell.org

Official Statement from Plaintiffs

Official Statement from Attorneys

New York, June 8, 2009 — Today, the parties in Wiwa v. Shell agreed to settle human rights claims charging the Royal Dutch/Shell company, its Nigerian subsidiary, Shell Petroleum Development Company (SPDC or Shell Nigeria), and the former head of its Nigerian operation, Brian Anderson, with complicity in the torture, killing, and other abuses of Ogoni leader Ken Saro-Wiwa and other non-violent Nigerian activists in the mid-1990s in the Ogoni region of the Niger Delta.

The settlement, whose terms are public, provides a total of $15.5 million. These funds will compensate the 10 plaintiffs, who include family members of the deceased victims; establish a Trust intended to benefit the Ogoni people; and cover a portion of plaintiffs’ legal fees and costs. The settlement is only on behalf of the individual plaintiffs for their individual claims. It does not resolve outstanding issues between Shell and the Ogoni people, and the plaintiffs did not negotiate on behalf of the Ogoni people.

Plaintiff Ken Saro-Wiwa, Jr., the son of Ken Saro-Wiwa explained, “In reaching this settlement, we were very much aware that we are not the only Ogonis who have suffered in our struggle with Shell, which is why we insisted on creating the Kiisi Trust.” The Kiisi Trust—Kiisi means “Progress” in the plaintiffs’ Ogoni language—will allow for initiatives in Ogoni for educational endowments, skills development, agricultural development, women’s programs, small enterprise support, and adult literacy.

Judith Chomsky, cooperating attorney with the Center for Constitutional Rights (CCR), one of the attorneys who initiated the lawsuit, stated, “The fortitude shown by our clients in the 13-year struggle to hold Shell accountable has helped establish a principle that goes beyond Shell and Nigeria—that corporations, no matter how powerful, will be held to universal human rights standards.”

Added Jennie Green, the CCR staff attorney who initiated the lawsuit in 1996, “This was one of the first cases to charge a multinational corporation with human rights violations, and this settlement confirms that multinational corporations can no longer act with the impunity they once enjoyed.”

Wiwa v. Royal Dutch Petroleum, Wiwa v. SPDC, and Wiwa v. Anderson are three lawsuits filed by CCR, co-counsel EarthRights International (ERI), and private law firms on behalf of relatives of murdered Ogoni activists and other injured Ogonis who were fighting for human rights and environmental justice in their homeland.

Plaintiffs charged Royal Dutch Shell, Shell Nigeria, and Anderson with complicity in extrajudicial killing, crimes against humanity, torture, and other human rights claims. Plaintiffs in the case include the relatives of the executed activists Ken Saro-Wiwa, John Kpuinen, Saturday Doobee, Daniel Gbokoo, Felix Nuate, and Dr. Barinem Kiobel. Dr. Owens Wiwa, Ken Saro-Wiwa’s brother, and Michael Tema Vizor brought claims for the torture and detention that resulted in their exile from Nigeria. Further claims were brought by Karalolo Kogbara, who lost her arm, and on behalf of Uebari N-nah, who was killed in attacks on Ogoni civilians.
Anthony DiCaprio, an attorney who has worked on the case for many years, commented, “Throughout this very long process, I have been humbled by our clients’ unwavering courage and resilience. Their satisfaction with the result that we have been able to achieve is extremely gratifying.”
Human rights attorney Paul Hoffman, trial counsel in the Wiwa cases and partner at the law firm of Schonbrun, De Simone, Seplow, Harris and Hoffman, noted, “This settlement is only a first step towards the resolution of still outstanding issues between Shell and the Ogoni people.”

Oil operations in Nigeria have been chief among Shell’s assets for many decades. Critics charge that Shell’s aim for the lowest possible production cost, without regard for the resulting damage to the surrounding people and land, has wreaked havoc on local communities and the environment, including the still on-going practice of gas flaring. In the early 1990s, the Ogoni, led by Ken Saro-Wiwa and the Movement for the Survival of the Ogoni People, began organized, non-violent protests against Shell’s practices. Shell grew increasingly concerned with the heightened international prominence of the Ogoni movement and made payments to security forces that they knew to be engaging in human rights violations against the local communities. The military government violently repressed the demonstrations, arrested Ogoni activists, and falsely accused nine Ogoni activists of murder and bribed witnesses to give fake testimony. The nine, including Ken Saro-Wiwa, were denied a fair trial and then hanged on November 10, 1995.

Said Agnieszka Fryszman, co-counsel with the law firm of Cohen Millstein Sellers & Toll, “The case has been pending for many years, and this settlement puts an end to what would likely have been yet another long round of appeals.”

Marco Simons, ERI Legal Director, stated, “The courts repeatedly rejected Shell’s efforts to dismiss this case, setting important legal precedents for the continued prosecution of corporations in breach of international law. This reinforces the plaintiffs’ demands that corporations such as Shell safeguard human rights and the environment.”

For complete documentation of the legal briefs and further background information, click here or visit www.ccrjustice.org, www.earthrights.org, and www.sdshh.com.

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Han Shan, Coordinator for the Shell Guilty Campaign Speculates as to why the Wiwa v Shell trial was delayed and how we can continue to support the Ogoni plaintiffs

June 3, 2009

By Han Shan, ShellGuilty

Shell Protest in San Francisco on May 19, organized by JINN in the lead up to the Wiwa v Shell trial

Today, there was another delay in the Wiwa v. Shell trial, causing teeth-gnashing by journalists who have dedicated resources to cover the trial, hand-wringing by Ogoni people and human rights & environmental justice supporters worldwide, and head-scratching by nearly everyone else following along.

The trial had been set to begin with jury selection last Wednesday, May 27th, in the U.S. District Court for the Southern District of New York in Manhattan. Last Tuesday, there was an 11th-hour postponement with no new trial date set. However, the court set a pre-trial conference with the two opposing counsel for Monday, June 1st. Late last Friday, the court announced that the Monday conference would be pushed back to Wednesday, June 3rd at 2pm. And today, that conference was canceled.

Presiding Judge Kimba Wood’s order says that the “trial remains adjourned sine die” which, with its poetic-sounding legal Latin, means that the trial is postponed indefinitely.

Does that mean it’s over, finished, done?!

No. But we really don’t know exactly what it means.

It could mean another court order is right around the corner that will set another pre-trial conference, or even set a date for jury selection – and the trial – to begin.

Or, as has been the subject of much speculation, the next thing we hear about may be an out-of-court settlement.

That would certainly cause more hand-wringing and teeth-gnashing but it would also make sense. Certainly, Shell doesn’t want this case to go to trial. They never did, and they filed motion after unsuccessful motion to try to keep it from happening. After losing the legal battle thus far, it’s easy to imagine that Shell would do anything it could – offering many millions of dollars of restitution to the plaintiffs comes to mind – to keep the trial date from ever coming.

And while many of us want to see Shell face the music for the crimes it has committed in Ogoni, we should also recognize that there are good reasons that the plaintiffs might want to settle and be done with this long legal struggle. I won’t enumerate them here, but I’ve reviewed the myriad reasons in my head and I would suggest that you do it yourself, if like me, your first thought on the idea of a settlement is that it’s some sort of terrible betrayal of everything the Ogoni people have fought for.

It’s not. And if there’s a settlement, we should be ready to support the plaintiffs as they declare victory, and work to keep the heat on Shell to end the crimes it continues to commit in communities cursed by the oil beneath their lands.

If Shell settles, they’ll try to spin it as if they were victims of a spurious extortion campaign by a bunch of trial lawyers using poor Nigerians as pawns (just watch). But if Shell – with its vastly superior resources – decides to settle, it will be because they realized that the evidence against them was overwhelming, and they made a deal that would allow them to pretend they’re innocent, and, well, play the victim.

Shell is victim only to hubris and to the self-destructive belief that it will forever get away with making human rights abuses and environmental devastation part of its business as usual.

Like many others, I am eager to see a trial. As determined as I am to support the plaintiffs who have known so much suffering and struggle, it would be hard to conceal my disappointment at news of a settlement. So I’m going to focus on the much more exciting possibility… that the trial has been delayed in order to broaden the case.

Okay, I’m not a lawyer so I don’t know if ‘broaden the case’ really describes what I mean. But today, the Second Circuit Court of Appeals added a very interesting wrinkle to the case that could explain the delay.

From a press release from the Center for Constitutional Rights, co-counsel on the lawsuit against Shell:

Today, the Second Circuit Court of Appeals overturned the District Court decision dismissing the Wiwa v. Shell plaintiffs’ claims against Shell Petroleum Development Company of Nigeria, Ltd. (Shell Nigeria). The District Court had dismissed the case against Shell Nigeria on March 4, 2008, finding it did not have jurisdiction over the company because the plaintiffs had failed to establish that Shell Nigeria was doing sufficient business in the United States to justify trying them in U.S. courts. The effect of the appellate court decision is to permit the plaintiffs to seek further information to establish Shell Nigeria’s connections to the United States.

When the plaintiffs filed the lawsuit against Shell, they charged Royal Dutch Shell, Shell Petroleum Development Company of Nigeria (Shell Nigeria), and Brian Anderson, head of Shell Nigeria when the abuses at issue took place. The District Court dismissed the charges against Shell Nigeria (allowing the other cases against Royal Dutch Shell and Mr. Anderson to go forward). Under the Alien Tort Statute, a company has to have a certain level of interest in the United States to come under the federal court’s jurisdiction. The District Court said that Shell Nigeria didn’t. But the plaintiffs argued on appeal that they should be granted the opportunity to do more discovery to determine whether or not this is actually the case. And according to the decision by the Circuit Court today, the plaintiffs prevailed.

Now the issue is kicked back to the District Court. And here’s where it gets really interesting.

It’s possible that Chief Judge Kimba Wood – aware that a decision was coming from the Circuit Court on this key issue – delayed the trial in order to make time to consider whether Shell Nigeria should be a defendant.

Of course, all the parties remain tight-lipped, so I really have no way of knowing. And I speculate partly for my own sanity.

So we all wait on pins and needles to hear what’s next – whether news of a settlement or the opening of this landmark trial or the confirmation of a formal delay to consider whether Shell Nigeria will join its parent company in the dock. Any which way it turns out, the Ogoni people have already put Shell on trial and found them guilty. And they’ve been witness to Shell’s crimes in ways that I hope and pray no-one else will again.

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Last week, the historic trial against Shell oil filed by the family of Ken Saro-Wiwa and others was delayed by one more week. According to the article by the AFP, the Judge Kimba Wood gave no explanation for the delay:

NEW YORK (AFP) — A pre-trial conference scheduled in the potentially landmark lawsuit brought by Nigerian plaintiffs against oil giant Royal Dutch Shell has been delayed until Wednesday, court papers show. Read Full Article

Ogoni Activist Suanu Bere speaks at San Francisco Shell protest. credit: Jan Sturmann

However, protests and rallies that began on May 19 for Shell’s shareholder meeting in the Hague and in London continued last week to call on Shell to end gas flaring in the Niger Delta – a demand that Wiwa and the Ogoni’s were asking for over 15 years ago and people of the Delta are still asking today.

JINN led the Bay Area protest with a large banner that read:  “Shell:  Stop Gas Flaring in Nigeria” and signs that read:  “Remember Ken Saro-Wiwa  and Shell:  Stop  Toxic Flares in Nigeria”

San Francisco activists hold Shell protest on May 19 - the day of Shell's shareholder meeting. credit: Jan Sturmann

Bere Suanu, an Ogoni from Nigeria spoke about how the Nigerian military tortured him at a time when Shell was paying the Nigerian military to quell protests in Ogoniland.

Then, on May 26 – the day the trail was set to begin – activists in South Africa led by groundWork held a solidarity rally to bring attention to the trial in New York and Shell’s dirty operations in Durban, South Africa

Activists protesting in South Africa - Shell's Hell

According to the Shell Guilty campaign other protests took place around the globe including:

In Nigeria, a rally, a candlelit vigil at the graveside of Ken Saro-Wiwa, and a mock trial were held at Bane, in Saro-Wiwa’s community. The events ran into controversy after Rivers State Police arrested a number of women activists in an attempt to prevent them from attending demonstrations. Protestors demanded their release, and eventually forced the police to release the detainees and respect their right to protest.

A noon rally took place in New York at Foley Square in Manhattan, near the federal courthouse where the trial had been scheduled to open today. A hundred supporters came out ahead of the trial, unfurling a banner that read, ‘JUSTICE FOR THE OGONI’. Inspiring speakers stressed that Shell cannot escape justice for their role in human rights abuses in the 1990s, and put pressure on Shell to end the ongoing environmental and social devastation in Nigeria’s Niger Delta region. A group of Ogoni activists closed the event by singing the Ogoni solidarity anthem.  Go to ShellGuilty.com for more information.

The trial is expected to commence no earlier than June 2nd.

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