Esther Kiobel et al. v. Royal Dutch Petroleum Company et al.

Court	District Court for the Southern District of New York, United States
Case number	02 Civ. 7618 (KMW) (HBP)
Decision title	Order
Decision date	29 September 2006
Parties	Esther Kiobel, individually and on behalf of Dr Barinem Kiobel Bishop Augustine Numene John-Miller Charles Baridorn Wiwa Israel Pyakene Nwidor Kendricks Dorle Nwikpo Anthony B. Kote-Witah Victor B. Wifa Dumle J. Kunenu Benson Magnus Ikari Legbara Tony Idigima Pius Nwinee Kpobari Tusima, individually and on behalf of Clement Tusima Royal Dutch Petroleum Company Shell Transport and Trading Company PLC Shell Petroleum Development Company of Nigeria, Ltd.
Other names	Kiobel I
Categories	Crimes against humanity
Keywords	deprivation of liberty, Murder, torture
Links	Order
Other countries involved	Nigeria

Summary

The Shell Petroleum Development Company of Nigeria Limited was involved in extracting and development of oil in the Ogoni region of Nigeria. Concerned over the devastating environmental impact that Shell’s activities were having on the region, a group of individuals known collectively as the Ogoni Nine, protested against Shell’s activities. The Ogoni Nine were detained by the Nigerian military junta on spurious charges, held without charge, tortured and hanged following a sham trial before a Special Tribunal in November 1995.

The present dispute is a class action filed by 12 Nigerian individuals, now US residents, seeking compensation from Shell for having aided and abetted the Nigerian government to summarily execute the activists in an effort to suppress protests against Shell’s oil operations. Specifically, they allege that Shell bribed and tampered with witnesses and paid Nigerian security forces that attacked Ogoni villages.

The present decision by the District Court for the Southern District of New York is a response to Shell’s motion seeking the dismissal of all charges against it and its holding companies. The Court partially granted the request. It upheld the charges for crimes against humanity of torture and arbitrary arrest and detention on the ground that they constituted established norms of international law giving rise to a cause of action under the Alien Tort Statute.

Procedural history

On 20 September 2002, Esther Kiobel, individually and on behalf of her late husband, Dr Barinem Kiobel and eleven other individuals filed a class action against the Royal Dutch Petroleum Company and the Shell Transport & Trading Company. The former is a Dutch and the latter British holding corporations of the Nigerian Shell Petroleum Development Company of Nigeria Limited (SPDC). The class action sought damages and other relief for alleged crimes against humanity, including torture and extrajudicial executions perpetrated against the Ogoni people of Nigeria with the defendant’s assistance and complicity between 1992 and 1995.

On 18 March 2003, Royal Dutch Petroleum filed a motion to dismiss on the ground that, inter alia, the plaintiffs claims are barred by the doctrine of act of state.

On 14 May 2004, the plaintiffs filed an amended complaint adding SPDC as a defendant. In response, the defendants filed a second motion to dismiss.

Related developments

The plaintiffs appealed and the defendants cross-appealed the present order. In January 2007, the Court of Appeals for the Second Circuit granted the petitions to appeal.

On 12 January 2009, oral arguments were heard before a panel of the Court of Appeals. By a decision of 17 September 2010, a majority of the Court of Appeals affirmed the lower court’s dismissal of the lawsuit and found that the Alien Tort Statute could not be used to sue corporations for violations of international law.

On 15 October 2010, the plaintiffs filed a petition for rehearing, which was denied by a decision of the Court of Appeals of 4 February 2011. On 6 June 2011, plaintiffs filed a petition of certiorari with the Supreme Court of the United States. On 17 October 2011, the Supreme Court announced that it would hear the plaintiff’s petition. Oral arguments were heard on 28 February 2012 (transcript available here).

On 5 March 2012, the Supreme Court ordered that the case be reargued and directed both parties to file supplemental briefs addressing whether, and under what circumstances, the Alien Tort Statute allows for a cause of action for violations of international law occurring outside the territory of the United States.

On 1 October 2012, the case was reargued before the Supreme Court (transcript available here), and on 17 April 2013 the Court issued its decision, finding that the Alien Tort Claims Act has no extraterritorial application and thus does not apply on events that happened outside the United States.

Legally relevant facts

Royal Dutch Petroleum Company is a subsidiary of the Shell Petroleum Development Company of Nigeria Limited (SPDC). SPDC is a Nigerian corporation with its headquarters in Lagos, Nigeria. It is engaged in exploring for, producing and selling energy products derived from Nigerian oil and natural gas. During the 1990s, the SPDC engaged in oil exploration and development activities in the Ogoni region of southern Nigeria.

The plaintiffs are a group of individuals who actively protested the SPDC’s oil exploration and development activities in the Ogoni region. They allege that their lawful protests were violently suppressed by agents of the Nigerian government, either in conspiracy with the SPDC and its subsidiaries, or at the SPDC’s own request.

The plaintiffs allege that the SPDC and its subsidiary, the Royal Dutch Petroleum Company, is responsible for violations of interntational, federal and state law in connection with the acts of violence and human rights abuses perpetarted against the plaintiffs. For example, plaintiffs allege that their property was destroyed, they were forced to leave Nigeria in fear of their lives , their family members were subject to extrajudicial killings, physical and psychological punishment, arbitrary arrest and detention (pp. 13-18).

Core legal questions

Under what conditions does the Alien Tort Statute provide a cause of action for cases concerning allegations of violations of international law committed outside the territory of the United States by non-US nationals?
Do acts of extra judicial killing violate an established norm of customary international law for the purposes of establishing a cause of action under the Alien Tort Statute?
Do acts of arbitrary arrest and detention violate an established norm of customary international law for the purposes of establishing a cause of action under the Alien Tort Statute?

Specific legal rules and provisions

US Alien Tort Claims Act.

Court's holding and analysis

After an examination of the case law in Filartiga v. Peña-Irala (pp. 3-6) and Sosa v. Alvarez-Machain (pp. 6-9), the Court concluded that the Sosa decision was ambiguous in parts and that therefore it would be inappropriate to assume that Filartiga no longer applied (pp. 10-11). Filartiga endorsed the view that jurisdiction pursuant to the Alien Tort Statute exists where the norm that is alleged to have been violated had commanded the general assent of civilised nations (p. 10).

Although the Court recognises that some forms of extrajudicial killing may be so bad that those who enforce them become enemies of the human race, plaintiffs have not directed the Court to any international authority establishing the elements of extrajudicial killing. The Court is therefore unpersuaded that there is a well-defined norm of customary international law that prohibits the conduct that plaintiffs allege to be extrajudicial killing (p. 15).

As the Court has stated previously in Wiwa, arbitrary detention is prohibited by international law. It occurs when a person is detained without warrant or articulable suspicion, is not apprised of charges against him or her and is not brought to trial. Where the detention is prolonged and a result of State policy, as in the present case, it may be actionable under the Alien Tort Statute (pp. 15-17).

The Court dismissed the charges against the defendants in relation to extrajudicial killings, rights to life, liberty, security and association. The charges for crimes against humanity, torture, arbitrary arrest and detention were admissible. In light of the substantive questions raised by the present order, the Court certified it for interlocutory appeal to the Second Circuit (p. 23).

Further analysis

J. Zebley, 'Supreme Court Rules against Extraterritorial Application of Alien Tort Statute', Jurist, 17 April 2013.
T. Reuters, 'Kiobel v. Royal Dutch Petroleum: Whither the Alien Tort Statute?', 3 December 2012;
A.J. Bellis, 'Kiobel, Subject Matter Jurisdiction and the Alien Tort Statute', Notre Dame Legal Studies Paper, Paper No. 12-52, 2012;
W.S. Dodge, 'Corporate Liability under Customary International Law', Georgetown Journal of International Law, 2012, Vol. 43, pp. 1045-1052;
P L. Regan, 'Human Rights Compliance and Accountability for US Multinational Enterprises: A Principled Step Forward after Sosa and Kiobel', Widener Law School Legal Studies, Research Paper No. 12-11, 2012;
J.J. Paust, 'Kiobel, Corporate Liability and the Extraterritorial Reach of the ATS', Virginia Journal of International Law Digest, 2012, Vol. 53;
O. Murray et al, 'Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel', Melbourne Journal of International Law, 2011, Vol. 12, pp. 57-94;
E. Engle, 'Kiobel v. Royal Dutch Petroleum Co.: Corporate Liability Under the Alien Torts Statute', 2010.

Instruments cited

US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.

Related cases

US Court of Appeals for the Second Circuit, Kiobel et al. v. Royal Dutch Petroleum Company et al., Docket Nos. 06-4800-cv, 06-4876-cv, 17 September 2010.
US Supreme Court, Kiobel et al. v. Royal Dutch Petroleum Company, et al., Case No. 10-1491, Decision on certirari, 17 April 2013.

Additional materials

L. Choukroune, 'Corporate Liability for Human Rights Abuses', The Hindu Business Line, 1 November 2012;
Center for Justice & Accountability, 'Kiobel v. Shell';
Center for Constitutional Rights, 'Kiobel v. Royal Dutch Petroleum Co.'.