Another possible consequence of the case, according to
LaHood, is that if the court decides against Kiobel, it will curtail the
accepted principle that international law can and does have a role in U.S.
court. As long ago as 1900, in the landmark Paquete Habana v. United States decision,
the Supreme Court determined that customary international law is relevant to
the U.S. legal system. "It's no different for the court to determine and
interpret international law than any other type of law," LaHood says.
Arguably, closing U.S. courts to foreign nationals suing
American-based companies goes against the long-accepted idea that international
law has a place in the American legal system. LaHood believes that in this
case, a limited view of the role of international law in the U.S. would simply
be a means of protecting corporations from civil exposure. "Indigenous Ogoni
people, most of whom probably live in villages in rural Nigeria, are
challenging one of the most powerful entities in the world," says LaHood.
"Corporations don't like it. They don't want to be held accountable for how
they behave in developing countries."
But how exactly did Shell "behave," and does that particular
behavior make the company liable? In 1990, the Ogoni people, an ethnic group with
about 500,000 members living in an oil-producing region of the eastern Niger
Delta, spearheaded a major protest movement. Their activism targeted both the
oil companies and the Nigerian military government, which owned 55 percent of
Shell's Nigerian subsidiary. "They felt as if they needed to have control over
their land, their resources and their political autonomy" says Deirdre LaPin, a
development scholar who worked with both USAID and Shell in Nigeria during the
1990s. "It was something of an Arab Spring. There are strong parallels."
Although the Ogoni were a relatively small population in a
region of over 30 million people, eloquent and charismatic Ogoni leaders, like
writer and television personality Ken Saro-Wiwa, help popularize the movement. In
1993, about 300,000 people attended an Ogoni Day rally in the Nigerian town of
Bori; later that year, amid increasing unrest, Shell suspended all of its
operations in Ogoni areas.
The Abacha dictatorship was keen on preventing the situation
in Ogoniland from spiraling out of control, regardless of the cost. "Gradually
there was a larger and larger presence of the military in the region and there
was a joint task force which was assigned to the Ogoni area," says LaPin. In
1995, Abacha ordered the execution of the nine most prominent members of the
Movement for the Survival of the Ogoni People, including Ken Saro-Wiwa.
The Kiobel suit holds that the oil company played a key role
in the chain of events leading up to the execution of the Ogoni activists. "The allegations are that Shell,
through its subsidiary, was in very close cooperation with the Abacha regime,"
says Hoffman. "The end point of that was the execution of the Ogoni Nine."
LaHood alleges that Shell had actually paid the Nigerian military to go into
parts of Ogoniland, and had called in the army to suppress protests against the
oil industry. Shell was possibly even involved in bribing witnesses in the
trial of the Ogoni Nine.