Inequality of Harms, Inequality of Arms

On November 8^th 2022 Channa Samkalden, lawyer for Esther Kiobel and three other widows of executed Nigerian community leaders, announced that her clients would be ending their lawsuit against Shell. The lawsuit was dismissed by the district court of The Hague in March 2022, and the claimants had appealed that decision. Uncertainty about the outcome, combined with the fact that the case had already been (unsuccessfully) going on for over 20 years in multiple fora, had made the four widows decide to withdraw the appeal, “not without disappointment and frustration”. In this blog, I discuss the background to this case and its remarkable procedural history. I then argue why this history, set against the particular facts of the case, illustrates the fundamental procedural unfairness between large corporations and victims trying to hold them to account.

Making Procedural History Without a Happy End

Oil extraction in the Niger Delta is one of Nigeria’s main sources of revenue – and of conflict, such as in the Ogoniland region. The core complaint of local communities is that it causes severe pollution and environmental degradation, damaging the health and livelihoods of people living in the area. At the same time, they see little to no economic benefit as jobs are awarded to foreign personnel and Nigerians from other regions, and oil revenue is not being reinvested in local development. Instead, it mostly benefits Nigeria’s federal elites and foreign oil ‘supermajors’ like Shell, BP and Chevron, who operate the facilities in joint ventures with Nigeria’s state oil company.

The specific facts of the Kiobel case concern the 1994 arrests and 1995 executions by hanging of the “Ogoni 9” – nine community leaders including the activist and Nobel laureate Ken Saro-Wiwa, and local official Dr. Barinem Kiobel, allegedly for conspiring to murder four rival chiefs. However, according to their widows and several human rights organizations they had been convicted in show trials orchestrated by Nigeria’s then-military regime, and the outcome was pre-determined. Some of the defendants were tortured and several witnesses were bribed to provide incriminating statements. The regime allegedly did this in close coordination with Shell and its co-owned subsidiary SPDC, who stood to benefit from suppressing local resistance against oil extraction.

The case is not just notable because of the facts, but also because of its procedural history. It may be mostly familiar in the context of the Alien Tort Statute (ATS). Between 1980 and 2018, the ATS was a popular if controversial vehicle to litigate alleged human rights abuses in the United States, including abuses by corporations. Most relatives of the Ogoni 9 had fled Nigeria after 1995 and were eventually granted asylum in the US. They thus filed their grievances as ATS claims; not just Esther Kiobel, but also surviving family members of Ken Saro-Wiwa. Because the Nigerian state enjoys immunity from jurisdiction of US Courts, they only sued Shell for complicity in torture and extrajudicial executions.

The Saro-Wiwa case was settled in 2009, but Kiobel’s claim was dismissed by federal District and Circuit Courts, before being granted certiorari by the US Supreme Court. In a 2013 decision, the Supreme Court held that the ‘presumption against extraterritoriality’ applied to the ATS, and that nothing in the statute’s history rebutted that presumption. Thus, for US courts to have jurisdiction ATS claims should sufficiently “touch and concern” the (territorial) US., So-called ‘foreign cubed’ (foreign claimant, defendant and facts) cases like Kiobel were consequently excluded.. Together with subsequent USSC decisions in Jesner v. Arab Bank and Nestlé USA v. Doe, the Kiobel case is generally held to signify the end of the ‘ATS era’ of litigation.

The widows filed a new claim the Netherlands in 2016 as a domestic wrongful act lawsuit, relying on Dutch procedural law and Nigerian substantive law. The suit named Shell’s Dutch parent company Royal Dutch Shell (RDS) as primary (anchor) defendant, and SPDC as co-defendant. The claimants outlined 11 separate instances where they accused Shell of either directly manipulating proceedings against the Ogoni through e.g. bribery of witnesses, or deliberately neglecting to intervene in the proceedings when it could have prevented the executions. In response, the defendants denied having any direct influence on the trial, and argued they had actually publicly called on Nigeria not to execute the Ogoni 9. The court eventually sided with the defendants on the merits in a 2019 interlocutory decision and 2022 final decision, first rejecting all claims except the bribery allegation, and then dismissing that claim as well for lack of evidence. The claimants’ initial appeal against this decision has now been withdrawn, likely putting a definitive end to the litigation campaign.

Evidence, Information and Equality of Arms

In some respects, it could be argued that the Kiobel case demonstrates the legal system functioning well. While literature on transnational human rights litigation often focuses on legal barriers to remedy for claimants, these did not play a significant role in the Dutch litigation. The court (mostly) accepted the claimants’ arguments on jurisdiction, applicable law and standing, rejected several of Shell’s initial procedural objections, and mostly focused on the merits. Eventually rejecting the claims was always a possible outcome, as it is for every tort or wrongful act suit.

However, the case also highlights structural and practical problems for claimants, even when legal barriers are overcome. One such problem is access to information and evidence, which was essential for demonstrating direct involvement of Shell in the trial, and/or a causal connection between Shell’s specific actions and the executions. It is important to recall that the claim was instituted by (former) refugees, after they were forced to flee their home country, disconnected from family and social circles, and that it concerned acts in which the state was the primary perpetrator. From this position, gaining access to (reliable) witness statements is difficult to impossible, especially while Nigeria was still under a military dictatorship. In the Dutch proceedings, several witnesses were heard, but gave inconclusive statements, not being able to recall details 20 years later, and not producing corroborating evidence.

Another challenge is disclosure and access to documents held by the defendants. In the early stage of the ATS proceedings, the claimants had gained access to internal company documentation, subject to a confidentiality agreement with the defendant companies. Amongst other things, these documents outlined the relation between Shell, its Nigerian subsidiary and the Nigerian government, and the claimants had requested the Dutch court to order their release, as they could demonstrate Shell’s specific acts of complicity (2019 decision, 4.32-4.36). The court rejected this request on the grounds that it did not meet the stringent specification requirements of Dutch rules on procedure and evidence (4.36), to overcome the defendant companies’ reputational interests in keeping these documents confidential. While arguably a reasonable interpretation of Dutch procedural law, this too raises equality of arms issues: the defendants, after all, had unlimited access to this documentation throughout the proceedings.

The evidence and witness statements the claimants did put forward were subject to rigorous scrutiny by the court, as it discusses witness statements supporting the bribery claim(2.9-2.10). The standard the court seems to apply to this claim seems to be ‘beyond reasonable doubt’, as it would be in a criminal trial. It is however questionable whether this is appropriate in a civil lawsuit (under Nigerian law), and especially problematic in light of the disadvantages discussed above. Moreover, the cumulative effect is that defendants benefit from the inherent opacity of authoritarian governance and the corrupt practices that surrounds it; an opacity that they themselves might have contributed to.

A Corporation Can Litigate Forever, Individuals Cannot

Another structural problem is that cases like this are exceptionally complex, lengthy and burdensome for claimants. Those burdens are practical, and thus financial – amongst other things consisting of court fees, finding and affording legal representation, costs associated with interviewing witnesses, experts and translators, all of which were paid with legal aid and some NGO support – but certainly also mental. As the widows’ lawyer’s statement indicates, at some point the emotional toll taken by successive rejections and dismissals in a case emerging from intense personal grief wears down even the most persistent litigant. And when that litigant drops their claim, the case is over.

In contrast, a corporate defendant like Shell does not just have more (financial) means than an individual, but it is also not subject to physical and mental limitations. It has ontological continuity, an existence distinct from the individuals through which it is physically present. Between the killings of the Ogoni 9 and the case being dropped, the Shell group had eight different CEOs. Those individuals came and went while “Shell” continued to litigate; the claimants’ case was always dependent on Esther Kiobel and the other three widows. Another case that demonstrates this painfully well is the related Four Nigerian Farmers v. Shell litigation, concerning oil pollution in the Niger Delta between 2005 and 2007. While the claimants secured a partial victory on appeal, by that time 2 of the 4 farmers had already died and another passed away shortly after. A corporation can litigate forever, individuals cannot.

Concluding Observations

In civil law, parties are supposed to be equal, but in practice there are great, practical disparities between individual and corporate litigants. Kiobel v Shell illustrates how these can eventually amount to fundamental procedural unfairness. This may have a discouraging effect on potential claimants considering bringing their harms to court. It must in that respect be reiterated that Kiobel was a well-known case backed by a large NGO; the disparities will be all the greater for cases that do not have the same publicity and support.

For all the legal and policy proposals tackling mandatory human rights due diligence and procedural reform in domestic, EU and international law and policy, there are comparatively few that address practical barriers to accountability and remedy. These could include creating victims’ funds, improving mutual legal assistance regimes, broadening possibilities for disclosure, and introducing (rebuttable) evidentiary presumptions in cases of alleged corruption. More generally, there is a debate to be had about how courts approach cases with clear disparities between litigating parties, and the limits of non-contractual liability law in the light of complex historical injustices.

This discussion also brings to mind an actor that has been markedly absent throughout this case: the state of the Netherlands. The Dutch government did submit an amicus brief to the US Supreme Court in 2012, arguing that the Kiobel case would be jurisdictionally more at home in Dutch courts. But once the case ‘came home’ in 2016, the state did not concern itself with the proceedings in any way, nor did the case lead to any political or policy discussion over the Netherlands’ responsibilities and obligations as Shell’s (then) home state – and biggest advocate. The question thus remains open whether the Netherlands, and other home states of transnational companies, are willing to be advocates for those harmed by ‘their’ companies as well.