Africa


On the eve of the beginning of jury selection in New York, it was reported yesterday that Royal Dutch Shell settled the law suit brought against it by the son of Nigerian activist Ken Saro-Wiwa and the families of the other activists killed with him.  The plaintiffs alleged that Shell officials helped furnish Nigerian police with weapons, participated in security sweeps of the area, and hired government troops that shot at villagers protesting the construction of a pipeline. Moreover, that Shell helped the government capture and hang Saro-Wiwa, John Kpuinen, Saturday Doobee, Felix Nuate, Daniel Gbokoo and Dr. Barinem Kiobel on Nov. 10, 1995.

Throughout the fourteen years of litigation Shell denied any involvement in the human rights abuses committed by the Nigerian government but Malcolm Brinded, Shell’s executive director of exploration and production said that the settlement was a step towards reconciliation.”This gesture also acknowledges that, even though Shell had no part in the violence that took place, the plaintiffs and others have suffered,”

The Wiwa family was represented by Jenny Green of the Center for Constitutional Rights. Green said the settlment send a a message to other multinationals that operate in developing countries,”You can’t commit human rights violations as a part of doing business,” she said. “A corporation can’t act with impunity. And we think there is accountability in this settlement.”

As we indicated in an earlier blog, this case was filed under the Alien Torts Claims Act. It is not yet possible to get a criminal case for violation of humanitarian law in an international forum. But the case against Shell was a significant milestone is accountability for corporations and their obligations to comply with human rights standards.

In addition to the settlement, Shell will pay lawyers fees for the plaintiffs. One third of the settlement will be placed in a trust fund to be used on community development projects for the Ogoniland region, which is Shell operated and where Saro-Wiwa and the others lived.

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The International Criminal Court (ICC) indicted several people for the atrocities being committed in Darfur. The most famous of those wanted is of course, the president of Sudan, Omar Hassan Ahmad al-Bashir, who has mocked the tribbunal by traveling internationally since his arrest warrant was issued. But, the ICC indicted a rebel leader as well, Bahr Idriss Abu Garda (“Abu Garda”), a Zaghawa tribal member who is accused of leading an attack on an African Union peace keeping location in Northern Darfur. Twelve peace keepers died as a result of the attack. In a surprising  move, Abu Garda submitted to the  jurisdiction of  the ICC and voluntarily turned himself to an undisclosed ICC location. As a result of his cooperation, the ICC issued a summons to appear rather than an arrest warrant. This was the first time the court used a summons to appear. The Registrar of the Court, Ms Silvana Arbia, welcomed his arrival: “The voluntary appearance of Abu Garda might serve to encourage other suspects currently at large to come before the Court to be heard with all guarantees of a fair trial”. This is a milestone moment for the court and for all the nations who support the ICC. Hopefully, Abu Garda, although the first,  will not be the  last defendant to  appear voluntarily.

Ordinarily corporations are not mentioned in the discussions of liability for humanitarian crimes, but there are two matters which crept into the news recently that deserve mention here.  In the Southern District of New York, a trial date has been set in Ken Wiwa, et al. v. Royal Dutch Shell Co., et  al., the case brought by the family of Nigerian activist Ken Saro-Wiwa against Royal Dutch Shell, alleging that Shell was complicit in the Nigerian government’s execution of Saro-Wiwa and eight other activities in 1995. The second matter was the release of the results of the Chiquita Brands International, independent committee of directors’  investigation into Chiquita’s  payment of bribes to terrorists in Columbia, as reported in Law.com’s International Law Blog. The report was submitted to the court as part of Chiquita’s defense against claims made under the Alien Tort Claims Act by families of persons killed by the Colombian groups.

Discussion of corporate liability for humanitarian crimes is rare because, with some limited exceptions from the Nuremberg trials, international humanitarian law has developed in the context of individual liability and secondly, many legal systems throughout the world do not recognize legal persons, thus prosecution of legal persons is not possible. There is some movement on this point as several recent conventions and treaties encourage signator nations to create criminal liability for legal persons in their domestic codes. The Convention Against Transnational Organized Crime is an example of  one such convention. However, liability for legal persons for war crimes, for example, is still out of reach. Legal scholars in the humanitarian area are developing theories of liability for corporations for crimes against humanity and war crimes, particularly in the environmental area, but currently the only way to bring a corporation to account for humanitarian type violations and other human rights abuses is through the Alien Torts Claims Act.

Without commenting on the merits of either case, the facts that have been revealed in both cases are horrific, and highlight the way in which activity which we normally associate with crimes against humanity and/or war crimes can create impunity when the activity is associated with corporations. As we keep watch on developments in the two cases, it becomes increasingly clear that international humanitarian law must develop and implement a solid theory of corporate criminal liability for crimes against humanity and war crimes.

The prosecution of  Charles Taylor, former president of Liberia, in the Special Court of Sierra Leone, sitting in special session at the Hague, came to a conclusion in February. Since that time the court has been weighing defense motions for an acquittal alleging that the prosecutor’s evidence failed to establish Mr. Taylor had committed war crimes or crimes against humanity. On Monday, the court ruled in strong language  it “wholly” rejected the motion for acquittal. The trial has been set to resume on June 29th and it is expected that the defense will call Mr. Taylor as its first witness. A recent editorial on allafrica.com questioned why the Blaise Campoare, current president of Burkina Faso was not  also on trial. The writer noted that it was publicly know that Campoare supported Taylor during the civil war in Liberia and helped finance his activities in Sierra Leone. That question will remain for another day. For now, Mr. Taylor must continue to wait for his fate to play out in court.

The issue of piracy, not just in Somalia, but throughout the world’s five hot spots, including Indonesia, Malaysia, China and the Philipines, have been a growing problem for the past nine years. At present there are approximately 200 crewmen from multiple vesels who are stuck in limbo waiting for their vessels to be freed. Indeed, a few of the other hot spots have been more violent then the situation in Somalia. The difference of course, is that now the United States has decided it is time to do something about the pirates because an American crew was affected by the hijackings.  And the first thing that will be done is to try the 18 year old pirate in the federal courts in New York for crimes that expose him to life in prison. Other  scholars, such as Eugune Kontorovich and  have written about the legal aspects and difficulties of prosecuting piracy, and the international law blogs have covered the Somali situation extensively. The interesting thing is that piracy is the classic jus cogens crime, giving nations the room to prosecute through the use of universal jurisdiction. Yet, few nations have opted to pursue prosecutions against the pirates, being perfectly happy to foist them off on Kenya or simply to pay the ransom. Clearly priracy is a crime, but perhaps the aproach to modern day piracy, driven by poverty and political instability deserves a fresh look from the international legal community. One study pointed out that the hijackings are overlapping the World Food Programme shipping routes.  Somalia’s piracy problem is complicated or some would argue caused by the failure of the disintergration of government within the Somali state. Whether it was necessitated by legitimate fisherman seeking taxes for use of Somali waters or the more violent and aggressive hijackers, it needs to be brought under control, but we also need to start seeing a much more robust discussion of how the world community can assist Somalia in rebuilding its government. That will go much further towards solving the Somali pirate problem, then will trials of scores of individual pirates.

Sudan’s president Hassan Omar al-Bashir thumbed his nose at the international community last week and made three trips outside of Sudan, despite the fact the ICC Prosecutor has indicted him and the court issued an arrest warrant against him. He is the first sitting head of state against whom an arrest warrant has been issued. The ICC indicted Bashir for crimes against humanity and war crimes in connection with the atrocities occurring in Darfur. The court stopped short of including charges of genocide as had been requested by the prosecutor. Bashir’s indictment and subsequent arrest warrant caused turmoil among African leaders and within the African Union. In fact, the AU petitioned the UN to delay both the indictment as well as the issuance of the arrest warrant, not because they support Bashir but because they have serious concerns about further destabilizing Sudan and the peace process underway. In addition, African leaders are a little wary of an international court that only seems to be indicting Africans. That is a legitimate concern. Most of the African countries are barely 50 years into independence from former colonial powers, and it is those same powers that now critique corruption and unstable African governments. You don’t have to scratch the surface of many conflicts in Africa to see the remnants of the old colonial hand and of contemporary World Bank polices. The ICC can gain some much needed credibility amongst African leaders by bringing a case against some humanitarian law violators who are NOT African. And there are several that are good potential targets. The ICC prosecutor says his office is working on bringing other cases. Time will tell whether the effort is sincere.

Nonetheless, on going support for Bashir is not warranted. The so-called peace process has been going on in the Darfur region since at least 2005 and no peace has been achieved. Darfurians continue to be attacked and die. And now Bashir is expelling all the NGOs who have been keeping hundreds of thousands of people fed. Thabo Mbeki, former president of SOuth Africa and now head of the AU’s Sudan special panel visited Sudan this past week to help further the peace negotiations. It may be too little too late. Archbishop Desmond Tutu appealed to the conscience of the continent to support the arrest of Bashir. But Bashir is not just Africa’s problem. Will the rest of the world have the resolve to do what they have promised to do? Will Bashir be arrested as he brazenly travels abroad? This is a fascinating case for the entire world. It is a time for African leaders to be especially courageous and take the high moral road, and for the rest of the nations who signed the Rome Treaty to do as they promised. Arrest Bashir and let justice run its course.

Recently the democratically elected President of Madagascar, Marc Ravalomanana, resigned from office and handed over the government to the military. He had essentially been under siege for two months as a result of actions by the former mayor of the Capitol, Andry Rajoelina. While mayor, he orchestrated demonstrations against the president, many of which erupted in riots and over 100 people were killed. Rajoelina proclaimed that he was running a parallel government and declared himself president. That tactic was unsuccessful although he did succeed in creating confusion among the Madagascar electorate. After resigning as mayor he continued his actions against the president and a few days before the President resigned, the military occupied one of the palaces. After Ravalomanana resigned, the military promptly turned over the government to Rajoelina, completely denying the citizens a right to a democratically elected government. Disaster may be on the horizon as not all of the military supports the former mayor. Will we be watching as another Africa state dissolves into instability?

The African Union (AU) resoundingly rejected the new government as illegal, suspended Madagascar from AU and strongly urged Rajoelina to call for elections. The United States also suspended some aid to the country. France, however, has recognized the new illegal government and has announced it will do nothing different with regard to its business and political relations in Madagascar. This is another example that shows when developed nations are presented with the choice of supporting democracy in a developing country or protecting their investments, they will opt for protecting their money every time.

Ravalomanana announced on Thursday that he had never resigned but was forced to make the announcement and then flee for the safety of his family. And so, the chaos continues.