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RIGHTS: Saro-Wiwa Settlement Latest Vindication of 1789 Law

Jim Lobe

WASHINGTON, Jun 9 2009 (IPS) - Monday's settlement of a long-pending case by Royal Dutch Shell marks the latest successful use by human rights groups of a 1789 anti-piracy law to gain redress in U.S. courts on behalf of foreign victims of serious abuses committed overseas – in this case, Nigeria.

The Alien Tort Claims Act (ATCA) has been deployed primarily against foreign military and government officials accused of torture and murder, but major U.S.-based multinational companies, many of which pay local police or military forces to provide security for their overseas operations abroad, have increasingly become targets for ATCA lawsuits in recent years.

The latest case, Wiwa v. Royal Dutch/Shell, dates back to 1995, when the government of then-President Sani Abacha hanged nine Nigerian environmental and rights activists, including Ken Saro-Wiwa, an internationally known writer and leaders of the Movement for the Survival of the Ogoni People (MOSOP), on trumped-up murder charges.

After 13 years of appeals and other legal manoeuvres, the case was set to go before a jury in a New York federal court next week. But the activists' families agreed Monday to accept Shell's offer to pay 15.5 million dollars to settle the lawsuit. Some of the funds will go the creation of a new foundation, the Kiisi ("Progress") Trust, to benefit the Ogoni, a small ethnic group in the Niger Delta, under the terms of the settlement.

MOSOP led an international campaign in the early 1990s to draw attention to environmentally destructive practices by Shell and other oil companies in the Niger Delta.

MOSOP's protests provoked severe repression by the regime's security forces, which, according to activists and some independent experts, were often paid by Shell and acted at the company's behest.

Among other charges, the plaintiffs in the case alleged that Shell paid at least two key witnesses in Saro-Wiwa's trial to alter their testimony and, after the guilty verdict, offered to press the government for his release if he promised to halt the MOSOP campaign.

Shell itself has always rejected those charges, as well as other accusations regarding complicity with the government. "Shell has always maintained the allegations were false," its executive director for Exploration and Production, Malcolm Brinded, repeated in a written statement issued Monday that stressed it had agreed to a settlement as "a humanitarian gesture".

"We believe this settlement will assist the process of reconciliation and peace in Ogoni land, which is our primary concern," he said.

For their part, the 10 plaintiffs, who included Saro-Wiwa's son, Ken Jr., said the settlement marked "one more payment of the overall debt it owes to Nigeria… The world has changed, and Shell cannot afford to continue to do business as usual in Nigeria. Yet we hope that the lessons Shell has learned from its continuing encounters with the Ogoni will serve the company well."

ATCA, which grants jurisdiction to U.S. federal courts over "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." lay dormant through most of the 19th and 20th centuries.

It was revived in 1980 when a Paraguayan family whose son had been abducted and brutally beaten to death by the police successfully sued the supervising officer while he was on a visit to the United States. In that case, which was brought by the New York-based Centre for Constitutional Rights, an appeals court ruled that ATCA permitted victims to pursue claims based on violations of international human rights law.

Subsequent cases have been brought against national leaders, such as former Philippine President Ferdinand Marcos, and senior army officers from Guatemala, Indonesia, Argentina, Ethiopia and El Salvador, among other countries. While damages have been awarded in almost all those cases, they have rarely been collected, primarily because defendants fled the United States once they received legal notice.

Despite strong opposition by the administration of President George W. Bush, the U.S. Supreme Court upheld the use of ATCA by foreigners for serious human rights abuses committed abroad.

The Bush administration's opposition was motivated primarily by concerns that the law was being used increasingly not only to target specific foreign individuals, but also against U.S. or U.S.-based multinational corporations for acts on foreign soil.

Indeed, by the time of the Supreme Court's ruling upholding the law, some 25 lawsuits had been filed against corporations, primarily for their alleged support or even direction of local security forces responsible for major rights violations. Although most of the cases have been dismissed before trial, some have settled, while others, such as a major lawsuit by Indonesian villagers in Aceh province against ExxonMobil, are still making their way through the courts.

The most successful actions have been brought by survivors of the Nazi Holocaust against foreign companies and banks that rejected their efforts at recovering money or insurance claims after the Second World War. While none of these ever came to trial, they helped induce Swiss banks to negotiate settlements worth more than one billion U.S. dollars.

In 1996, a group of Burmese peasants filed an ATCA case against the California-based Unocal oil corporation for such abuses as forced labour, rape, and murder committed by Burmese soldiers guarding the Yadana gas pipeline. After an appeals court rejected the company's appeal – backed by the Bush administration – to dismiss, Unocal agreed to a settlement the terms of which, however, have never been disclosed.

No court has yet found against a corporate defendant in an ACTA case. Last December, a federal jury found that Chevron was not legally responsible for the 1998 killings by Nigerian soldiers of two protesters after an appeal by Chevron for the military's assistance in removing a group of around 100 demonstrators who were occupying an off-shore oil platform.

The latest settlement may spark a new round of complaints against ATCA from the business community, although the U.S. Chamber of Commerce, which has been among the Act's fiercest opponents, offered no reaction to the news.

The legal groups who brought the Saro-Wiwa case, notably the Centre for Constitutional Rights and Earthrights International, praised the outcome.

"The settlement represents one more step towards holding corporations accountable for complicity in human rights violations, wherever they are committed," they said. "We hope (it) provides another building block in the efforts to forge a legal system that holds violators accountable wherever they may be and prevents future violations."