When Esther Kiobel—who believes Shell collaborated with Nigerian authorities to commit gross human rights abuses including arbitrary detention, rape, and the murder of her husband—could not find justice by suing Shell in U.S courts, she decided to sue the Dutch oil giant in the Netherlands. In support of the Dutch action, we helped Ms. Kiobel and her Dutch lawyers utilize a relatively little-known federal law, the Foreign Legal Assistance (FLA) Statute (28 U.S.C. § 1782), to gain access to important documents from the original U.S. case that will shed light on what really happened. These documents were in the possession of Cravath, Swaine & Moore LLP, the law firm that defended Shell in the U.S. litigation.
As those of you familiar with ERI’s work may know, for the past several years, ERI has helped pioneer the use of FLA to assist human rights litigation in other countries. The federal law, which we successfully invoked against Newmont Mining Corporation in 2015 to obtain information surrounding its conflict-ridden operations in Peru, allows “interested persons” to obtain documents and information from individuals or companies in U.S. to support legal proceedings in other countries.
A little bit of background on the Shell case. In the early 1990s, the Ogoni people of Nigeria’s Niger Delta region were subjected to severe abuses by Nigerian military forces, arising partly out of their opposition to oil development on their lands. Ogoni activists allege that the Nigerian military, with Shell’s acquiescence and aid, systematically targeted opponents to Shell’s operations in Ogoni territory, which due to recurring oil spills and land grabs had become the site of widespread devastation and unrest. Nigerian military units responded to opposition with intimidation and brute force, subjecting peaceful protestors and community organizers to egregious violations of basic human rights and civil liberties, including restrictions on assembly; destruction of private property; forced exile; arbitrary arrest and detention; rape; massacres and other extrajudicial killings; and torture.
This reign of terror culminated in the 1995 arrest and military trial of nine Ogoni men—known as the “Ogoni Nine”—which included movement leader and acclaimed writer Ken Saro-Wiwa and Ms. Kiobel’s husband, Dr. Barinem Kiobel. According to Ms. Kiobel, she herself was whipped, sexually assaulted, and detained without food, water, or other basic necessities for weeks when she tried to bring food to her husband at a detention camp. Despite widespread international condemnation, on November 10, 1995, Dr. Kiobel, Ken Saro-Wiwa, and the other members of the Ogoni Nine were executed.
In 1996, Ken Saro-Wiwa’s family and other Ogonis sued Shell in federal court in New York, under the Alien Tort Statute and other laws, for its alleged role in these abuses. ERI represented the plaintiffs in these actions, the Wiwa v. Shell cases, which ended in a landmark settlement in 2009. In 2002, Esther Kiobel and others filed a similar case against Shell in the same court, also under the Alien Tort Statute, which was mostly litigated in parallel to the Wiwa cases.
The Kiobel case suffered a very different fate, however. In 2013, after over a decade of litigation, the United States Supreme Court dismissed Ms. Kiobel’s case against Shell on jurisdictional grounds in a decision that has been widely criticized for significantly narrowing the ability of U.S. courts to hear claims of human rights abuses committed abroad (arguably, contrary to Congress’s original intent).
Denied justice in the U.S., Ms. Kiobel turned to the courts of Shell’s home country, the Netherlands, for redress. She found very capable lawyers in the law firm of Prakken D’Oliveira, which had previously successfully sued Shell in Dutch courts for oil spills in Nigeria. But they encountered a problem: Dutch procedural law requires plaintiffs in civil actions to present virtually all of their evidence at the opening of their case, and offers them limited opportunities for discovery post-filing. While all of this evidence had been turned over to Ms. Kiobel in the course of the U.S. litigation, much of it was required to be destroyed at the end of that case.
But Shell’s law firm, Cravath, almost certainly kept all of the documents. And so Ms. Kiobel returned to the same district court where she had filed her case against Shell 14 years earlier, the Southern District of New York, to request access to evidence that may prove critical to finally bringing Shell to justice. But unlike in 2013, U.S. courts did not fail Ms. Kiobel; Judge Alvin Hellerstein granted her FLA application. Indeed, the circumstances around Ms. Kiobel’s request seemed to align perfectly with those contemplated by Congress when it first enacted the FLA Statute: discovery was being sought from an entity within the Southern District of New York; the evidence requested would be used in a foreign proceeding; and Ms. Kiobel, as the named plaintiff, had a vested interest in the Dutch action.
The decision gives us hope that a Dutch lawsuit will finally grant Ms. Kiobel the justice she was denied in the United States. Moreover, positive decisions like this one (and in our earlier FLA actions against Southern Copper, Thomson Safaris, and Newmont), reaffirm the importance of utilizing FLA to foster alliances between U.S. attorneys and human rights lawyers in other countries.
Indeed, in light of the Kiobel decision at the Supreme Court, supporting primary human rights litigation overseas has become more important than ever. We therefore offer Ms. Kiobel and her legal team in the Netherlands our best wishes as they embark on the next step in their path to justice.
Photo: EarthRights International holds a protest and press conference outside the U.S. Supreme Court during arguments in the Kiobel v. Shell case on Monday, October 1, 2012 in Washington, D.C.
