Allegations of Corporate Crimes Against Humanity Going to Trial

By Mark Hamblett, New York Law Journal
Originally published by www.law.com, May 7, 2009

A federal judge has cleared one of the last obstacles to a May trial for families of Nigerian environmental activists who are seeking to hold a Dutch oil company liable for violations of international law committed by the Nigerian military government.

In what will be one of the first times, if not the first time, that a corporation goes on trial for crimes against humanity, Southern District of New York Judge Kimba Wood rejected all but one motion to dismiss by Shell Petroleum, N.V. and other defendants in Wiwa v. Royal Dutch Petroleum, 96 Civ. 8386 and Wiwa v. Anderson, 01 Civ. 1909.

The claim alleges that executed Nigerian writer Ken Saro-Wiwa and other activists were the victims of a campaign of terror launched by the Nigerian government because they fought oil exploration in the Ogoni region of Nigeria. The company, the plaintiffs allege, was complicit in the 1995 hanging of Saro-Wiwa and other activists and the torture, jailing and ultimate exile of Saro-Wiwa's brother, Dr. Owens Wiwa.

Filed under the Alien Tort Statute (ATS) and the Torture Victim Protection Act, the complaints in the two cases contend that the defendants, Shell Petroleum, N.V., recruited Nigerian police and military to attack villages and crush opposition to the company's development in the region. While the plaintiffs are seeking to hold the company vicariously liable, they are attempting to hold directly liable Brian Anderson, the head of the company's Nigerian operation.

Jury selection in the case is expected to begin May 26.

In their motion to dismiss, the defendants claimed the court lacked jurisdiction because the plaintiffs failed to effectively plead violation of sufficiently universal, specific and mutual norms of "customary international law."

They also charged the statute does not contemplate claims under various theories of vicarious liability, including aiding and abetting.

In order for an Alien Tort Statute claim to be brought, Wood explained, plaintiffs must establish a norm of customary international law that meets the criteria established by the U.S. Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

Sosa, she said, requires that the norm be "universally accepted by the civilized world," it must be "defined with a specificity comparable to the 18th-century norms regarding piracy, the right of safe passage, and offenses against ambassadors," and it must be "abided or acceded to by states out of a sense of legal obligation and mutual concern."

Wood first rejected defendants' argument that there was no customary international norm against summary execution, and she made a similar ruling on the claim that the norm against cruel, inhuman and degrading treatment "is insufficiently defined to meet the Sosa standard."

The judge also found to be "without merit" the defendants' following argument in the alternative: "either that Sosa held that there is no customary international law norm against arbitrary arrest and detention that meets the Sosa standard, or that the court should find" there is no such norm "specific enough" to meet the standard.

The judge found that the family of Saro-Wiwa and other plaintiffs successfully established a customary international law norm "that meets the Sosa standard for crimes against humanity, but fail[ed] to do so for rights related to peaceful assembly."

Wood noted, "Although defendants are correct that there is not universal agreement on every element of a claim based on crimes against humanity, this limited inconsistency does not frustrate the court's jurisdiction to hear such claims."

Turning to vicarious liability and the issue of jurisdiction, Wood said there was "no clear law on the subject," but she found that "whether a plaintiff can hold a particular defendant vicariously liable for the tortuous conduct giving rise to his [Alien Tort Statute] claim" was an "ancillary, non-jurisdictional," matter.

The plaintiffs are represented by Jennifer Green of the Center for Constitutional Rights and the center's cooperating attorneys Judith Brown Chomsky, Anthony DiCaprio and Beth Stephens and Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman of Venice, Calif.

Rory O. Millson, Thomas G. Rafferty and Rowan D. Wilson of Cravath, Swaine & Moore represent Shell Petroleum, N.V.

© Copyright 2009 Incisive Media US Properties, LLC.