U.S. Appeals Court Dismisses Ogoni Lawsuit against Shell-No Corporate Liability, Means More Corporate Killings, Genocide and Instability
It's a truism that the former Nigerian Attorney General Kanu G. Agabi, SAN wrote to his then U.S. counterpart John Ashcroft. The U.S. Ambassador to Nigeria then, Jeter was also copied. The letter was dated Dec. 20, 2002. It's for Ashcroft to use his powers to not entertain the Ogoni lawsuits against Shell in America. This is when considering how their success would damage the so-called cordial relationship between both nations.
Among other issues raised therefore, the Attorney General wrote:
While the said allegations of abuses of human rights and crimes against humanity by any institutions mentioned under (a) above against the Ogoni people and MOSOP is at best spurious, its adjudication in the United States courts will definitely compromise the serious efforts of the Nigeria government to guarantee the safety of foreign investors, including those of the United States.
Though Ashcroft didn't show any interest that was made public, who knows what may have happened thereafter especially when he left the seat for Alberto Gonzales in 2005? Who also know what happened under Pres. George W. Bush still, when Gonzales left the seat for Michael Mukasey in 2007? What may have happened thenceforth until Sept. 17 the date of this court decision deserves serious attention. This is true when considering the powers of the corporation coupled with the fact that those affected are Africans. Is there any reason for the world to really suspect that something must be fishing?
Bush is a Texas oil man. Ashcroft served under him. During Bush administration, independent lawyers and the Department of Justice were led by Staurt E. Schiffer, the acting assistant attorney general (in a 2005 brief) to the U.S. District Court. They argued in protest that the court was wrong to say that the Alien Tort Statute (ATS) granted foreign plaintiffs grounds for remedies in America. Whereas the ATS has been in active use since the 1980s after its original enactment in 1789, these lawyers felt the statute was merely jurisdictional.
The above happened in the case of Ret. Gen. Abdusalami Abubakar and Hafsat Abiola, Chief Anthony Enahoro and Dr. Arthur Nwankwo. Abubakar, then head of state was alleged to have murder Chief M.K.O. Abiola, the acclaimed winner of the 1993 June 12 presidential elections in Nigeria.
The court affirmed jurisdiction and the case subsequently called into settlement out of court. Abubakar is an individual and was dragged as the then president of Nigeria. He wasn't dragged because he's in his house doing nothing when accused of the crime. In similar manner the 2nd Circuit Court of Appeals has contested jurisdiction is how the American federal counsels did the already mentioned case. They argued that ATS was a, “jurisdictional statute and does not confer any private right of action.”
Today, the U.S. Court decision dismissing Ogoni suit argues that if Shell were individual (which it's, as a corporation that is nothing without individuals) the case wouldn't have been dismissed. Yet, it is saying also that the plaintiffs had sued the Royal Dutch Shell whereas its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) had committed the crimes.
The judges seem to have contradicted themselves here. By implication, they're saying if the right defendant (SPDC Nigeria) was sued there will be a case. At the same time, they're also claiming that international law doesn't hold liable corporations such as SPDC because corporations aren't individuals that such law specifies for liability.
Going by this stipulation, something must be wrong somewhere. We'd wait to see the end; to see how this draconian and killer decision will play out. An immediate appeal up to the Supreme Court could change the tone. What would be revealed of the reasons behind it shall also be anticipated. It's saddening that the ATS which had attracted remedies for about three decades now can't work in American courts.
By the arguments aforementioned, they're saying it can't work against individuals and corporations (as previously was, even in the Wiwa case) which are also powerful individuals. The succor or relieves ATS gave foreign victims from influential American, British and other Western corporations is now stymied.
Since the 2002 letter from Nigeria to Ashcroft, they may have waited for about eight years of legal battle and when Wiwa v. Shell has been settled out of court for overwhelming evidence to attempt to bury Kiobel's case. In a despicable legal precedent handed down by the U.S. Appeals Court of the 2nd circuit last week Friday, in Kiobel et al v. Royal Dutch Shell, justices Dennis Jacobs and Jose Cabranes wrote:
We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and 2 because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs' ATS claims must be dismissed for lack of subject matter jurisdiction.
The above declaration means more corporate killings, genocide and instability in Africa, etc. It presupposes that because international law doesn't specifically apportion liability to corporations, or because no corporation has been held liable under international law, corporations can do as they please. I now can also see why Shell is in $100 million stove-poverty eradication collaboration with the United Nations foundation. That is, the corporation plans to raise this money in about five years for clean cooking stove to the most poor. Blood money is to help stop or add to the problems of poverty?
This ruling also means the judges have ignored their duty to properly interpret the law (Alien Torts Claims Act of 1789 that provides that the US federal trial courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.
They've deemed it necessary to set aside a law that took stronger precedent in the 1980s, when the 2nd Circuit Court of Appeals decided the case of Filartiga v. Pena-Irala, giving alien victims of serious violations of international law the right to seek civil damages in a US federal court against foreign officials.
Foreign officials here also imply states or corporations because officials don't operate without state or corporate umbrella. Since this provision, various other US courts have allowed foreign plaintiffs to bring cases in the US, and many lower courts have said that there can be corporate liability under the statute, because there are.
The power of corporations in America isn't lost on observers of this new development. The public is watching closely with others of good conscience and legal luminaries in America and beyond who have spoken against this opinion to let go an anacondic corporation known as Shell.
This is shameful, and as Pierre Leval (one of the three-member judicial panel wrote a strongly worded dissenting opinion) put it, “It's a substantial blow to international law and its undertaking to protect fundamental human rights.”
Although Leval reasoned that the suit should be dismissed alongside his colleagues because among other things the corporation sued isn't the same as Shell Petroleum Development Company of Nigeria (a subsidiary of Royal Dutch in the suit). He also wrote:
"According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims' claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form."
He also argued that it's wrong for his colleagues to say because international law doesn't specifically or explicitly say corporations are individuals and so liable, a corporation which is in violation of this law can go free. That is, it doesn't mean they can't be or aren't liable.
Justice Jacobs and Cabranes, in there deliberation also referred to the Nuremberg Tribunal of 1945 which held liable Adolf Hitler's men for war crimes. While I agree with them on the ground that international law as was applied in the above case targeted individuals who can or physically had committed these crimes, it's obvious that the state on or under which they'd killed was also liable.
If a sovereign nation can be liable, I wonder why corporations which are even more powerful, most greedy and deadly than most nations can't be and so relieved of such holistic liability. A nation/state, like a corporation, don't speak, eat, sign agreements, or go to war or even kill the innocent as in the Ogoni situation. Human beings or individuals acting on behalf of a state or corporation do all of the above. We know this as common sense. A state, like a corporation is an empty space, without individuals both entities are stagnant and useless. This is also common sense.
It should have been common sense for these judges if not influence by their values, interest or influence. The aforementioned are some of the reasons mostly considered in deciding most cases alongside legal precedents. Therefore common sense allows us know that a corporation or name is liable for the crimes committed on its behalf by physical beings. There is no way to separate someone's name from his action. Nor can we separate a person from the corporation he/she works for especially when the work (crimes) carried out is in the interest of the corporation.
A corporation is therefore liable for crimes such as committed by Shell in collaboration with the Nigerian government, which is just another name but liable under international law as individuals. The fact that corporations are liable because they're said to be individuals in American law speaks volume and should make the whole difference for no exoneration.
The corporation is an individual because it's right and can make claims according to U.S. law. This notion wasn't possible without corporate lobby. When corporations commit a crime in the U.S., it's liable not because they can walk or speak/do business on their own. It's because individuals who owned and run them commit such crimes. It's on this premise that international law predicate or hinges though it left determination of such liability to the judiciaries with the above wisdom.
The judges found it easy to also cite the case of Radovan Karavic of former Bosnia Serb, whose alleged genocidal actions forced more than $4 billion claims for crimes he and his military committed against civilians. The wisdom in this case though, that they also ignore is that they're individuals who acted for or on behalf of a state. They failed to look at the fact that the state under which they'd acted has no hand to fight, no ear to hear, mouth to speak or legs to walk for these crimes to be committed.
The state or nation above was liable as with the individuals under international law that is Jus Cogen. That is, a “compelling law” which is expected or required that all state parties respect and honor in good faith. It's also Orga Omnes or Jus Gentium. That is it flows to all without regard to race, ethnicity, nationality, sex or gender; or a “law of nations publicum” that should bind all people or states, governments of sovereign nations.
Consequently, the corporation is also liable as with individuals who made possible these crimes on behalf of that corporation-in this case Shell. The name Shell or corporation is just a name as earlier enunciated. It's an empty vessel that stays open and empty. What undertake corporate work and travels from place to place in the name of this corporation and for its legality as an entity in the first place are human beings.
Corporate owners, shareholders and employees, etc., makes a corporation. Neither corporation nor shareholders, or employees can be divorced of themselves-they're intertwined. And the judges also recognize this by saying their decision don't foreclose on liability against managers, officers, shareholders and other employees.
Therefore, the argument that a corporation isn't liable under international law because such law doesn't specify liability is nonsensical and non sequitur. It's like saying corporations or Shell can aid and abet human right abuses against Ogonis or other people; it can also directly kill. Because it's only a corporation (which is of course a name with no human face, but can't operate without human face) and not an individual it can continue with its crimes unchecked.
The ATS was for checks and balances against powerful, corrupt and deadly (terrorist) corporations such as Shell (which is nothing without individuals) when they commit crimes against the law of nations. It's an interpretation of such international covenant by a domestic law which has on many occasions lent credence to international laws also establish to check individual and corporate excesses.
A corporation committing a crime is simply individuals in that corporation because they simply don't have senses to reason or act. When individuals in a corporation commit crimes for the good of the entity, it's a corporate crime which liability falls on such corporation. The individual is only an agent to corporate crimes and good. There needs to be no much argument about this premise because, obviously, corporations are nothing without persons. This should be common sense!
Finally, America should by this judgment prepare to welcome more refugees running from genocide Shell and other Western corporations will engineer the government of Nigeria to and others to commit for their profit to continue when they will force into sacred lands and water for oil extraction. Such genocide will also be orchestrated by corporate officials as was the situation in Wiwa and Kiobel.
It's unfortunate these judges chose to alter such historical precedent that aimed to curtail the dubious activities of individuals who of course forms corporations that are also liable for their actions. This is like saying the 14 amendment in America that brought about equal protection, due process and citizenship should be repealed. Americans including judges have benefited from this amendment and such call will be tantamount to double standard. If Shell isn't liable as a corporation under international law why is it liable under domestic American law? Why did it settle the Wiwa case out of court in 2009?
This decision is like the recent U.S. Court decision on campaign spending, where corporations can spend until they become naked just to force candidates of their choice who will protect their interest into power. This decision may also not be without “special interest” or corporate lobby because corporate interest, power and lobby are American reality. Corporate power is becoming most diabolical than ever, so international and domestic laws are the proper instruments to help put them in checks and balances.
The corporations which may be jubilating because their long-term lobby has come to be should take a deep breath and wait. I know they've money, power and influence. It isn't over yet! There are things money can't buy. The truth is one of such things. It will come, if not this year next or subsequent years to come. Insofar as there are people of good conscience and will, this decision shall be overturned for the sake of humanity. We can only allow it to survive if we've all mortgaged our conscience, freedoms, rights and liberties to corporate gangsters. I'm sure we haven't, so there is hope! There can be no way a court can give express killing pass to killers. Their powers must be tamed. Anything to the contrary will spell doom for weaker nations and nationalities such as Ogoni.
Shell and others may openly kill now because the name of the company can't be held accountable except individuals are seen and brought to question. Of course, Shell like other dubious corporations knows how to pass money to those who will do the dirty work that they may clean off their hands in jubilation.
With this atrocious precedent the last hope for justice for the oppressed in weaker tribes or nationalities around the world has brought hopelessness. Like I said, there is an air of hope despite this hopelessness. This precedent borne out of unilaterally broken precedents is dangerous and must be fought against because more militancy would surface. This is once oppressed people understand there are no international remedies for their injuries caused by the reckless and criminal behaviors of corporations such as Shell. Exxon-Mobil, Total, Agip and Chevron oil extracting companies in Niger delta of Nigeria and other parts of the world aren't left out.
I'm not a prophet not to mention a prophet of doom. I however, predicted the scarcity of gas and its high price tag we saw in about 2006 and 2007, up to 2008 in one of my books: Ken Saro-Wiwa and MOSOP: The Story and Revelation, U.S.A. 2006. Gas isn't even low yet. Because of this ruling and the stringent laws in America and European nations, more corporations may travel to far places such as Nigeria. In such places, Nigeria in particular, lawlessness is celebrated from the presidency to most of the ordinary persons in the villages.
Therefore, when this happens, America and other Western nations, which have been the most beneficiaries of the Ogoni/Niger delta oil will be adversely affected. This will come as was the case between 2004 and 2009. At such periods the Movement for the Emancipation of Niger Delta (MEND) sprout like a wounded lion and obstructed the flow of more than one million barrels of oil per day from Nigeria.
Research shows the next militant groups have been deadlier than the previous. What this ruling does is ask the aggrieved people of Niger delta so exploited and killed by Shell to take the laws into their hands since no international law protect them. It's a dangerous precedent.
It's a precedent that may not be without personal values, interest and influence. And money work better for influence to succeed. Remember that money, especially blood money such as Shell's don't go to bed, it doesn't sleep but creep late night and in hot sun, or winter, through individuals to do it works and perfect further greed and bloodletting. If this ruling stirs up the oppressed of oil producing communities again, as the likelihood exist, America may begin to extract much of its oil from the already ravaged Gulf of Mexico. It may also look more to Saudi Arabia and elsewhere.
The time to act against this law with petitions, protest, legal appeals and other nonviolent counteractions is now! Stand up against this ruling that gives legal permit to corporations that they should kill unabated and without recourse!