Ken Saro-Wiwa Jr. was let down by the Netherlands


By Ruud Lubbers, Tineke Lambooy and Jan van de Venis –

Date of publication: 
10 June 2009

Shell and the relatives of the executed Ogoni leader Ken Saro-Wiwa reached a settlement on Monday, effectively ending a 13-year long legal battle. The case concerned environmental pollution by oil exploration, human rights abuses by the Nigerian military regime in the nineties, and the role of Shell. A jury before the New York District Court was supposed to consider the evidence collected by the parties.

Shell has agreed to settle the law suit by paying 15.5 million US dollars in compensation and legal costs to the families of Saro-Wiwa and of the 8 other executed Ogoni-leaders. Since other Ogonis suffered from the oil exploration and pollution as well, the plaintiff families are setting aside 5 million dollars in a development fund for the Ogoni people in Nigeria.

The settlement is a good solution for all concerned. For the relatives, it means that the endless succession of court cases has now come to an end. The case could have been dragged through the appeals courts for many more years. Now the family can move on to a more positive role.

Shell has been freed from the negative publicity surrounding a trial in which it had already been found guilty by the court of public opinion
before the presentation of the evidence had even started. The settlement may also have a positive impact on the stakeholder dialogue regarding the oil exploration in in Nigeria.

Back to the Netherlands. The Ken Saro-Wiwa case has revealed two gaps in Dutch law. The Dutch constitution doesn’t recognise the right to a clean and healthy environment, and Dutch law doesn’t allow victims of international human rights violations to successfully bring their case before a Dutch court.

What was it all about? Saro-Wiwa Jr. is the son of the Ogoni lawyer, writer and environmentalist Ken Saro-Wiwa who was executed in Nigeria in 1995. Saro-Wiwa Jr. sued Shell for complicity in environmental crimes, murder and torture perpetrated by the military regime of general Sani Abacha. That human rights violations were committed by this Nigerian military regime was established by a UN fact-finding mission led by the Indian justice V.S. Malimath in 1996.

In 2002, the African Human Rights Commission issued an interesting ruling on these matters. The African Human Rights Charter includes – besides political rights – also the right to a clean and healthy environment.

The commission ruled that the government of Nigeria had violated that right by facilitating the destruction of Ogoniland and by giving the oil companies the green light to devastatingly affect the well-being of the Ogonis. It had also violated the right to freely dispose of their wealth and natural resources because polluted rivers and farmland produce fewer fish and vegetables. The Nigerian state had failed to protect the rights of its citizens.

The right to a clean and healthy environment has also been included in the American Convention on Human Rights as well as in more than a hundred Constitutions. It is however neither included in the Dutch Constitution nor in the European Convention on Human Rights. Urgent action is needed on that front.

The Saro-Wiwa case also demonstrates that Dutch law does not offer remedies to victims of this type of human rights violations. Saro-Wiwa Jr. had to go all the way to New York to seek justice against Shell, an Anglo-Dutch corporation with headquarters in Britain and the Netherlands.

A specific US law, the Alien Tort Claims Act, allows non-Americans to file suit in the US for international human rights violations wherever they were committed. We should be ashamed, as Dutch and Europeans, that there was no place in the Netherlands for Saro-Wiwa’s relatives to take their grievances. There is work to be done here for Dutch and European lawmakers.

The same point was made by professor John G. Ruggie, the UN Special representative on human rights and transnational corporations and other business enterprises, in a prominent report published last year. Ruggie says governments have to protect human rights, and corporations have to respect them. They also need to work together to make sure that the victims are given the possibility of remedy.

Moreover, Ruggie advises corporations to carefully research their own organisations and to assess their business partners in order to make sure that they are not indirectly taking part in human rights violations. Society has the right to expect corporations to act in a
social responsible manner, especially so in the case of multinational corporations because of the great power and influence they have.