Today the U.S. Supreme Court took up the case of Kiobel v. Royal Dutch Petroleum Co., a case that has its origins in the hanging of the Ogoni Nine in 1995. But that story, too, has a history. It begins with a June 1993 presidential election that returned a mandate for Moshood Abiola. The result was annulled by the military dictatorship; the subsequent political crisis brought Gen. Sani Abacha to power. It was Abacha's oppressive rule that led to the hanging of the Ogoni Nine.
But perhaps Abacha's story requires its own historical background, one that would would include Nigeria's colonial past and its struggle to overcome poverty and knit together disparate ethnic groups in the aftermath of independence in 1960. Or perhaps, as with so much of significance in the world, it all begins with the discovery of oil.
West Africa--and especially the Gulf of Guinea--is among the world's richest oil regions. Nigeria, Angola, and Equatorial Guinea are major oil producers and, not coincidentally, major centers of political repression and corruption. Nigeria experienced an almost unbroken string of military dictatorships from 1966 to 1999 before returning, haltingly, to democracy; Angola experienced an extraordinarily destructive civil war from its independence in 1975 to 2002 and operates today with a deeply flawed political system; and Equatorial Guinea has been ruled by two dictators--from the same family--since its independence in 1968. Several leaders of the three countries have amassed vast personal fortunes while allowing the abject poverty of their citizens to go unaddressed in any meaningful way.
In a state without solid democratic foundations, oil tends to turn control of the government into the one sure path to riches. Those who rule control oil production contracts; these provide enormous sums of money that, in the absence of transparency and democracy, somehow never make it into the public treasury. That kind of money is often thought to be worth fighting over, so coups d'etat, attempted coups, civil wars, and other forms of violence--or its opposite, which is severe repression designed to insure against coups d'etat and civil wars--is common. (In a free-market economy, where oil wealth remains in private hands, direct control of the government is unnecessary, especially where corporate wealth can be used to influence the policy process in a nominally democratic system.)
But back to Nigeria, Gen. Abacha, and the Ogoni Nine.
The most important oil-producing region of Nigeria is the Niger Delta. Those people living in the region, however, have reaped very few benefits and many hardships from the oil production that goes on all around them. Natural gas--a by-product of oil production--is flared rather than captured in the Niger Delta, resulting in serious air pollution (and one of the single largest sources of greenhouse gas emissions on the planet). Rivers and streams have been polluted making fishing, a key source of livelihood, impossible. Villages have been uprooted and people have been dispossessed to clear areas for petroleum exploration and production. And, in all of this, very little oil wealth has been returned to the people paying the economic, social, health, and environmental costs of the oil production going on around them.
Imagine BP ignoring the consequences of the Deepwater Horizon disaster in the Gulf of Mexico in 2010. Now imagine the government deploying the National Guard to keep the people harmed by the oil spill--or merely outraged by it--from interfering as BP and other oil companies continued to operate as if nothing had happened. This gives a picture of the situation in the Niger Delta, one that Peter Maass has described well in his 2009 book Crude World: The Violent Twilight of Oil.
Among those protesting conditions in the Niger Delta were members of a group called the Movement for the Survival of the Ogoni People (MOSOP). On May 21, 1994, four former leaders of MOSOP were murdered. The Nigerian government accused nine current MOSOP leaders, including author and environmentalist Ken Saro-Wiwa, of responsibility for the murders. The nine were tried in a special court--the Civil Disturbance Special Tribunal--under circumstances that Amnesty International condemned as "blatantly unfair." All nine were convicted and sentenced to death. In spite of an international outcry, the executions were carried out--by hanging--on November 10, 1995. A number of witnesses later recanted their testimony saying they had been bribed by the government. Two claimed to have been promised jobs with Shell Oil in exchange for testimony against the Ogoni Nine.
The international outrage over the executions led to the suspension of Nigeria from the Commonwealth of Nations and variety of sanctions from other quarters. It may have played a role in the end of military dictatorship in Nigeria with the election of Olesegun Obasanjo as president in 1999. It also led to two noteworthy human rights cases, one of which never went to trial.
Relatives of Ken Saro-Wiwa sued Shell for its role in his execution, relying on the Alien Tort Statute (ATS) as the legal foundation. On June 9, 2009, just days before the trial was to have begun in New York, Shell, without admitting liability, agreed to pay $15.5 million to settle the case. A second ATS case, Kiobel v. Royal Dutch Petroleum Co., brought by Esther Kiobel, the wife of another of the Ogoni Nine, Barinem Kiobel, had meanwhile proceeded to trial. The Second Circuit Court of Appeals, asked to decide whether a corporation could be held liable for violations of "the law of nations" under the ATS, decided in September 2010 that they cannot. In October 2011, the U.S. Supreme Court granted cert. Oral arguments were heard this morning.
The early read on the Supreme Court's position is that the five conservative justices are likely to decide that Big Oil cannot be held liable for human rights abuses under the Alien Tort Statute. If so, an important tool in the global effort to enforce international human rights will have been lost.