This fall the U.S. Supreme Court will decide a case that throws a spotlight on the oil industry's toxic influence on our democracy -- and why we need to move America beyond oil as quickly as possible.
In the 1990s, Shell Oil allegedly enlisted the Nigerian military dictatorship to suppress opposition to Shell's oil operations. A 2002 lawsuit, Kiobel v. Shell, alleges that Shell "aided and abetted" the Nigerian military dictatorship in committing severe human rights abuses against members of the Ogoni people who were involved in a nonviolent movement to stop it from drilling for oil in their rich Niger River Delta homeland. But, in a challenge to a 200-year-old law, Shell is arguing that as a corporation it cannot be held responsible for human rights violations abroad.
The company isn't denying the charges; it's claiming that as a corporation it should be able to get away with murder.
Katie Redford, a human rights lawyer and cofounder and director of EarthRights International, explains the case this way:
Shell is asking the Court for a "Vegas" rule: that what happens in Nigeria stays in Nigeria. In the 1990s Shell funded and armed a violent military dictatorship. They used the Nigerian army and sham courts to torture and eliminate people standing in the corporation's way. And now Shell, and the entire oil industry, wants a world in which human rights law does not apply to them.
Shell -- and six oil companies who filed briefs in support of Shell -- claim that as corporations, they enjoy immunity from prosecution under international human rights law because they are not a person, but a corporation. Forget that the Supreme Court ruled in the 2010 Citizens United case that corporations are people under the law. But somehow their "personhood" stops short of taking responsibility for their actions. And, in this case, we're talking about some really despicable actions.
The Ogoni people are ethnic minority that farms and fishes the rich Niger River Delta. Since the 1950s the Ogoni and their land has been poisoned and exploited by oil development. Nigeria is Shell's largest source of oil outside the U.S. In the 1990s, Shell collaborated with the military dictatorship to target Ogoni leaders who opposed Shell's oil operations in their homeland. After a widely condemned sham trail in 1995 the Nigerian military government executed a prominent Ogoni leader, Dr. Kiobel, along with other leaders of the peaceful resistance to oil development known as the "Ogoni Nine," which included Goldman Environmental Prize winner Ken Saro Wiwa. In 2009, Shell paid $15.5 million to settle a separate lawsuit for its role in the Ogoni Nine executions and Saro Wiwa's death.
Dr. Kiobel's wife brought the Kiobel v. Shell lawsuit in 2002 under the Alien Tort Statute, a 220-year-old federal law that allows victims of crimes that break international law -- including serious human rights abuses -- to ﬁle suit in the U.S. The law was passed in 1792 and signed by President George Washington because the founding fathers wanted to affirm that our new nation was ready to uphold the rule of law.
Looking back at some of the most heinous examples of corporate behavior in history, the question of corporate responsibility under the law has come up before. At post-World War II Nuremberg trials corporations that contributed to Nazi atrocities were dissolved and their executives were stripped of their assets.
But Shell says the Alien Tort Statute doesn't apply to it, simply because it is a corporation. Only two years after the Supreme Court's Citizens United decision, Shell is asking the same judges to accept that corporations are immune from prosecution for human rights violations because they are not people under the law.
In an exchange at an earlier Supreme Court hearing on the case in February (highlighted in a great short video by EarthRights International,) Justice Breyer asked:
Do you think, in the 18th century, if they brought Pirates Incorporated, and we got all their gold, and Blackbeard gets up and he says, 'Oh, it isn't me, it's the corporation." Do you think they would have said, 'Oh yes, I see, it's the corporation, goodbye, go home?
To which Shell's lawyer answered:
"Justice Breyer, yes, the corporation would not be liable."
The Supreme Court will now decide if Shell Oil is legally responsible for its part in murder. This shouldn't be a difficult decision. I'm hoping that common sense and decency prevails in the halls of the Supreme Court, where even the ideologues must understand that as Americans, we must hold a zero tolerance policy for human rights abuses, wherever committed. George Washington and the other founding fathers passed a law to ensure that the arm of the law reaches pirates and murderers wherever they break the law, and that those pirates and murderers would have no safe haven in the U.S. And in 1792 they had a pretty good idea of the intent of the framers of the Constitution on the subject, since they wrote it.