The court in The Hague does not consider it proven that employees of Shell’s Nigerian operating company SPDC bribed people in 1995 to give false testimony that led to the execution of nine Ogoni leaders.
Which the court ruled on Wednesday in the case brought against the energy company by four widows of the Ogoni leaders.
The court does not dispute that the five witnesses heard in the case received money and jobs to make false statements, but their statements “are based in large part on assumptions and interpretations” and contain “insufficient evidence” to conclude that the money came from SPDC. Therefore, the court dismisses all claims.
Two of the plaintiffs, who were in court on Wednesday, showed themselves to be combative despite the disappointing verdict. “Our voice has been heard,” said Victoria Bera. “I feel proud of what has been achieved,” said Esther Kiobel. They will discuss with the lawyers whether to appeal, they said.
A Shell spokesperson issued the written statement that the Shell Group at the time was “shocked at the tragic events” and that it had “asked for leniency from the military government of Nigeria”. That had no effect to Shell’s “deep regret”. “We have always denied the allegations against Shell and today the court confirms that there is no basis for the claims against us.”
Whether Shell actually cooperated in bribery of witnesses was the most important question still open after an interlocutory judgment of the court in 2019. The four widows who acted as plaintiffs in the case were given the opportunity to substantiate the accusation by showing that the false statements have been used to connect the executed Ogoni leaders with the murder of four prominent Ogoni, of which ‘the nine’ have been accused. Ultimately, four witnesses told about this at the hearing in The Hague, and one via a video link.
Twenty years of struggle
Wednesday’s ruling comes in a legal battle that has been going on for nearly two decades in the United States and the Netherlands. Esther Kiobel, who settled in the US as a recognized refugee in 1998, filed a case there in 2002 against Shell for complicity in the murder of her husband. After the Supreme Court ruled in 2013 that the American court has no jurisdiction in this case, Kiobel and three other widows of executed Ogoni leaders started the civil case against Shell in the Netherlands in 2017, partly because Shell’s head office was still located here.
The core of their accusation: because of Shell Nigeria’s close ties to the Nigerian government, then a brutal military dictatorship, the group is jointly responsible for the execution of their husbands and the five other hanged Ogoni leaders. They demanded apologies and compensation for the suffering they had endured.
Much of the 140-page subpoena is about those close ties, and Shell’s role in the early 1990s. The people of Ogoniland at that time massively resisted Shell and demanded a larger share of the oil profits and an end to the oil pollution of their land and fishing waters. The Nigerian army responded with harsh repression.
SPDC, Shell’s Nigerian operating company, had had to withdraw from Ogoniland in 1993 because of that protest, and wanted to resume oil extraction there. To that end, SPDC employees regularly asked the military to intervene in demonstrations, while the company knew that people had been killed in previous protests, the subpoena said.
In 1994, the army’s actions led to the arrest of fifteen Ogoni leaders, who were blamed for the murder of four prominent Ogoni. After a military tribunal widely described as a show trial, nine accused were executed, including the well-known writer Ken Saro-Wiwa and Barinem Kiobel, husband of Esther Kiobel.
The widows believe that Shell had direct influence on the judicial process and could have prevented the executions. This would become apparent from a conversation between local Shell director Brian Anderson with Owens Wiwa, Ken Saro-Wiwa’s brother. According to two witness statements, Anderson said he could positively influence the outcome of the trial of Ken Saro-Wiwa and the others if it persuaded his brother to end all protests of the Ogoni movement Mosop, of which Ken Saro-Wiwa was the founder and leader. Anderson has always denied this reading.
‘Silent diplomacy’
The Hague court issued an interim judgment in May 2019. In it, she stated that she did not consider any connection between Shell Nigeria and the authorities prior to the military show trial to be relevant to the execution. Shell had conducted ‘silent diplomacy’ around that process in favor of the suspects, the court found, and was not obliged under Nigerian law to do ‘more’ to free the Ogoni leaders. What the plaintiffs were left with was ‘the burden of proof’ to prove bribery by Shell employees. Only if this had been proved could there be a case of complicity.
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The five witnesses, heard in October 2019, provided great insight into how they have been used to give the show trial a hint of legitimacy, but were unable to name the exact names of the Shell employees involved. “If you can only rely on what people remember after twenty-five years, it is difficult,” said Channa Samkalden, lawyer for the four widows.
Russia
Samkalden would have liked the court to “reconsider” aspects of the interlocutory judgment. “It is unfortunate that the court so easily overruled the question of what responsibility you have as a company in the country in which you operate,” she says now. “Sometimes I think: if only the case had been served a little later. Look at how Shell recently withdrew from Russia: because of the war in Ukraine, such a step is very much alive. Shell does not want to help finance the war that Russia is waging in Ukraine, that is the reason now, while it does not play nearly as prominent a role in Russia as it did in Nigeria.”
She continues: “Unfortunately, what happened in Ogoniland in 1995 is not alive in court. How completely unjust, unjust and far from every reality what happened during the military tribunal was, in my opinion, has never fully reached the judge. Nor that Shell played such an important role there. While that is the question what it was really about in the case. It is of course a question with a high moral content, but I think you should also be able to ask it legally.”
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Samkalden will now discuss with the widows whether she will appeal, which the four must decide within three months. If that happens, all facts could be reconsidered, including the alleged statements by local Shell director Anderson that he could influence the outcome of the military tribunal. Such an appeal can again take years.
Her clients have to decide that, says Samkalden. “But it seems,” she says, eyeing Victoria Bera and Esther Kiobel, who are speaking to the press behind her, full of combativeness. “that they are ready to rock.”
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