Oil giant, Royal Dutch Shell Petroleum, will go on trial in the United States on February 9, 2009 for alleged complicity in human rights abuses in the Niger Delta, THISDAY has learnt.
The case entitled Wiwa v. Royal Dutch Shell and Wiwa v Anderson concerns the November 10, 1995 hangings of Ken Saro-Wiwa and eight other members of the Movement of the Emancipation of the Ogoni People (MOSOP) known as "Ogoni Nine" and the shooting of a woman protesting the bulldozing of her farm by Shell in preparation for a pipeline project.
After several years of litigation, Judge Kimba Wood ruled that the trial would he held next year.
According to documents made available by EarthRights International, one of thecounsel, Shell was engaged in "acts of oppression" against peaceful opposition to the company's environmental damage and human rights abuses in the Ogoni area.
THISDAY gathered that the plaintiff's action was brought under the Alien Tort Claims Act (ATCA) and alleges violations of the Racketeer Influenced and Corrupt Organisations Act (RICO).
The defendants dismissed the complaints on grounds of lack of personal jurisdiction over Royal Dutch/Shell and lack of subject matter jurisdiction.
According to the defendants, ACTA did not apply to a corporation and the claim was precluded by the political questions and act of state doctrines as well as Nigerian law on corporate liability. They also argued that the case should be heard in the Netherlands or England.
But on September 25, 1998, Judge Wood ruled that personal jurisdiction was appropriate in New York but also ruled that England was a more convenient forum and therefore that the defendant's motion to dismiss should be granted for forum non conveniens (Latin for "inconvenient forum" or "inappropriate forum").
Plaintiffs appealed to the US Court of Appeals for Second Circuit, arguing that a forum non conveniens dismissal would vitiate Congressional intent to allow plaintiffs claims to be heard in US courts.
Defendants cross-appealed the ruling personal jurisdiction. And the Court of Appeal on September 15, 2000 reversed the district court's forum non conveniens dismal, thereby concluding that the US was the proper forum.
The court further upheld the district court's ruling that jurisdiction over the defendants was proper.
EarthRights International is a co-counsel for the plaintiffs together with Judith Brown Chomsky, the Center for Constitutional Rights, Paul Hoffman and Julie Shapiro.
The "Ogoni Nine" were hanged by the government of late military ruler Gen. Sani Abacha after they were found guilty of murder by the military tribunal headed by Justice Ibrahim Auta.
Those hanged were Saro-Wiwa, Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, and John Kpuine
There was a global outcry on what was described as "judicial murder" and outrage heightened against Shell which was accused of collaborating with the military regime to silence environmental activists in the oil-producing region.
Last August, another oil giant, Chevron Nigeria Limited, had also lost its bid to halt its trial in United States after exhausting all appeals to stop the company from being tried for the alleged murder of villagers in the Niger Delta region in two separate incidents between 1998 and 1999.
The US District Court Judge in San Francisco, California, Susan Illston, had ruled last year in the Bowoto v. Chevron Corp., No 99-2506, that Chevron was directly involved in the alleged attacks by acting in consonance with Nigerian government security forces and therefore would stand trail.
Chevron appealed the California Superior Court's ruling unsuccessfully.
In her ruling, Judge Illston found "evidence that CNL [Chevron Nigeria Limited] personnel were directly involved in the attacks; CNL transported the GSF [Nigerian government security forces], CNL paid the GSF; and CNL knew that GSF were prone to use excessive force".
The plaintiffs are also taking action on the legality of the Nigerian government's conduct at Parabe and Opia/Ikenyan, asking the state court to issue an injunction regulating the manner in which the Nigerian government may provide law enforcement services in Nigeria, and asking the court to limit CNL's ability to obtain armed protection in Nigeria.Chevron argued this will hinder its operations in the country.
In addition to Environmental Rights Action and Traber &Voorhees, the plaintiffs are represented by the private law firms of Hadsell & Stormer and Siegel & Yee, the Center for Constitutional Rights and the Electronic Frontier Foundation, and Paul Hoffman, Michael Sorgen, Robert Newman, Anthony DiCaprio, Elizabeth Gu-arnieri, and Richard Wiebe.