Esther Kiobel, Victoria Bera, Charity Levula and Blessing Nordu filed a writ of summons in June 2017 (see here) in which they held several entities within the Shell group liable for the execution of their spouses in Nigeria in 1995, the so-called ‘Ogoni 9’. On 1 May 2019, the district court of The Hague issued an interlocutory verdict in this case, in which it ruled on Shell’s procedural defences, the request the plaintiffs filed for the production (exhibition) of documents, and some of the allegations put forward. The court has ordered the plaintiffs to provide further evidence.
The formal defences: jurisdiction and statute of limitations
Shell raised both a jurisdictional defence and the defence that the claims were out of time. The Court held that it has jurisdiction not only with respect to the Dutch defendants, but also with respect to the old British parent company of the Shell group and the Nigerian subsidiary. The court also ruled that the case is not time-barred. The court is therefore considering the merits of the case.
The demand for the production of exhibits
The plaintiffs have requested the court to order Shell to submit internal documents. These are internal Shell-documents that the plaintiffs had wanted to proffer as evidence in the previous lawsuit they filed in the United States. This request was rejected because, according to the court, the plaintiffs had not made sufficiently concrete why those documents are also relevant to the present case, which is a requirement for exhibition (pursuant to article 843a Dutch Code of Civil Procedure). The reason why the plaintiffs were unable to do this, is because the documents are still protected by a confidentiality agreement.
However, the court did order Shell to submit a number of other documents. These documents concern communication within the Shell group about the Ogoni 9-trial, as a result of which the plaintiffs’ spouses were executed.
The merits
The court dismissed some of the allegations made by the plaintiffs. It considered that the far-reaching cooperation between Shell and the Nigerian government and the fact that Shell had urged the Nigerian government to intervene in protests by the Ogoni population, could not lead to Shell's liability for the arrest, detention and execution of the Ogoni 9. The court also held that Shell had no obligation to persuade the Nigerian government to bring about a fair trial and clemency for the Ogoni 9.
The plaintiffs will be given the opportunity to hear witnesses and provide further evidence as to whether Shell bribed individuals to testify against the Ogoni 9, and whether these testimonies contributed to the human rights violations against plaintiffs (or their spouses).
Conclusion
The plaintiffs are satisfied and relieved that the Dutch court considers itself competent to assess the merits of the case. However, they are of the opinion that the court too easily dismissed Shell's responsibility for the events, especially given the close cooperation between Shell and Nigerian government bodies and officials. The plaintiffs therefore believe that they should have been given the opportunity to substantiate not only their allegation of bribery of witnesses with witness-testimony, but also their other assertions about Shell's involvement.
The plaintiffs are represented by lawyers Channa Samkalden, Tom de Boer and Elles ten Vergert.