Per la Pau / Peace in Progress

Gerardo Rios

Since oil was first discovered in the Niger Delta in 1956, its extraction has generated revenue of more than US $600,000 million. However, it has caused pollution[1] — as a result of poorly maintained infrastructure and occasionally of sabotage or the theft of oil— which has brought the inhabitants of the Delta diseases and the destruction of their livelihoods, plunging the population into increasing poverty. In addition to these human rights violations, which have been faced with protests that have been going on for years, security forces have sometimes responded with excessive use of force, resulting in deaths and injuries (in incidents that have never been clarified and for which the victims have not been compensated). In 1995, Ken Saro Wiwa and eight other Ogoni leaders were arrested, sentenced to death following an unfair trial, and finally executed.

The mark of oil is unmistakable: huge profits for the oil companies, increased revenues for the governments of Nigeria… and poverty for the inhabitants of the Delta. Wealth and power for a few; poverty and criminal abuse for the others. That of Shell is a paradigm example of human rights violations caused by the collusion between multinationals and the Nigerian authorities and it represents a landmark case in the struggle for victims' rights.

Communities are fighting against the violation of their rights. They are seeking compensation for the abuses suffered and that the companies be held to account. They have demanded this before the courts on several occasions.

A recent ruling by a Dutch court obliges Shell to financially compensate one of the people affected by a spill, to clean up the area, and to carry out proper maintenance of its facilities, arguing that the company should have prevented the spill. This court case is a small victory for the victims, but it also shows the obstacles faced by the victims of abuses committed by transnational corporations when they try to obtain justice.

The four plaintiffs, fishermen and farmers, had to confront the difficulty of proving that the oil spills were due to operational failures in the infrastructure and not to acts of sabotage, as was argued by Shell. Amnesty International has repeatedly denounced that communities do not have access to independent assessments of the causes of oil spills and that all investigations are directed by the company itself, thereby creating a clear conflict of interest. Thus Shell, the other party to the trial, possesses most of the key documents for the case which, in the view of the plaintiffs, would have been crucial to their claim. In addition, Dutch legal rules require the plaintiff to virtually prove their claim before the court hearings start.

The fact that the claims of three of the four plaintiffs in the same case were not accepted by the court — it being considered that Shell's liability had not been sufficiently proved — makes it clear that while justice is possible, it is extremely difficult to achieve when suing a huge multinational.

The whole judicial process makes it evident that there was a blatant inequality of arms, caused fundamentally by the lack of access for the plaintiff to substantial information on which to base the farmers' defence. Clearly, in any judicial process, there must be strict requirements to provide evidence which supports a claim. However, Amnesty International believes that urgent measures must be taken to establish a level playing field when poor communities judicially confront well resourced companies.

As a positive aspect of the trial, it should be noted that this was the first time a case against Shell was admitted in its home country for crimes committed outside national territory.[2] This decision sets an extraordinarily positive precedent for other victims of abuse by Dutch multinationals.

More recently, the decision of the US Supreme Court in the case of Kiobel v. Royal Dutch Petroleum Co. exemplifies one of the obstacles faced by victims: access to justice beyond their frontiers. The plaintiffs — basing their case on the Alien Tort Statute, a United States law of 1789 which made it possible to prosecute crimes committed offshore by international companies — accused Shell of having given support to the security forces which committed acts of violence against the Ogoni.

The Court dismissed the claim, affirming that this law did not apply because the facts had occurred outside the United States. The decision, which the plaintiffs will appeal, and which has been strongly criticised by Amnesty International[3] and other organisations, represents an unfortunate change in the interpretation of a law that, until now, survivors of human rights abuses committed around the world had been using to obtain redress. It is a blow for victims and for the defenders of human rights, who now find a new obstacle placed before one of the few routes that existed for bringing companies to justice for events occurred anywhere in the world.

There is currently another case against Shell pending in the British courts.[4] Furthermore, the Court of Justice of the Economic Community of West African States condemned the Nigerian government for the abuses committed by oil companies, obliging the government to hold these companies to account.[5]

These growing court cases show that victims' struggle forces companies to be accountable and to make appropriate reparations, although this is still a very slow process, fraught with difficulties. Some of these cases are small but important victories in the unstoppable struggle for justice.