Alien Tort Claims Act

Problem:

You work at a New York law firm and have been invited by the partner you work for to attend a meeting with Mrs. Esther Kiobel and a dozen other people, all former residents of the Ogoni area in southern Nigeria.  Mrs. Kiobel and the others, now residents of New York City, wish to bring a suit against Royal Dutch Petroleum Company ("Royal Dutch") for its support of the Nigerian military'spractice of widespread arbitrary detentions and atrocities carried out against the Ogoni people.  Your partner asks you to do further research on the matter, and analyze whether the potential plaintiffs would have claims under the Alien Tort Claims Act ("ATCA") against Royal Dutch for prolonged arbitrary detentions and crimes against humanity.

Background:

Ogoni is a densely populated area in south Nigeria.  Royal Dutch began oil exploration in the area in 1958.  According to reports, a large part of the oil and natural gas that has been extracted from the area has been permitted to flare because of weak safety standards kept by the company.  As a result, residents of the area have reported persistent air and noise pollution as well as reduced crop yields in the surrounding areas.  Further, this pollution has contaminated the local water supply, and damaged agricultural lands and fish beds.

For the entire time that Royal Dutch has had a corporate presence in Nigeria, agents of the company have worked closely with the government of Nigeria to facilitate the export of the crude oil and natural gas products, as well as played an active role in coordinating with the Nigerian military to repress the growing civil discontent concerning the company's effect on the Ogoni region.  In particular, Royal Dutch directly paid the military, police, and intelligence personnel assigned to Royal Dutch installations in Nigeria.  The company further contracted for the purchase of weapons for the Nigerian police and military personnel.  Royal Dutch also sold Nigerian police officials armored vehicles and heavy equipment that Royal Dutch had imported for operations at its oil refining facilities.  Additionally, company representatives collected and exchanged intelligence with the Nigerian military on individuals involved in civil activism against Royal Dutch.  Private Royal Dutch security participated in the planning and coordination of raids and terror campaigns conducted in Ogoni through regular meetings with local officials and military leaders.  On a number of occasions, peaceful protests by Ogoni civilians were violently put down by Nigerian military officialswith the support of Royal Dutch officials.

By 2003, over half of the population of Ogoni supported a human rights organization created to protect the social and political rights of the Ogoni people.  In 2004, Nigerian security forces led attacks on eight Ogoni villages, setting fire to the villages and leaving hundreds of villagers homeless.  Four Ogoni tribal leaders were killed in these attacks.  Additionally, nightly raids during this period resulted in widespread beatings, rapes, forcing villagers to pay "settlement fees" to the military, extorting ransoms, and forcing bribes for villages to carry-on with their day to day lives.In response to these attacks, a high-ranking military official responded that these measures were necessary to ensure that "business ventures ... within Ogoniland are not molested."  Around this time, the Nigerian government pressured Royal Dutch to pay the government in support of these acts, which they deemed "necessary" to the running of the Royal Dutch business operations.

By 2006, community leaders began to ramp up the frequency of the public protests, often staging at least one protest per week near Royal Dutch's oil fields.  Many leaders were known to give public education talks on the long-term effects of the pollution on the health and well-being of the Ogoni citizens.  At these town hall discussions, the Ogoni community leaders would often recruit citizens for their protest activities.  As a result, community leaders were abducted from their homes and held without charges for up to six months at a time.  They were not allowed to communicate with family, nor reach out to legal counsel.  During these prolonged detentions, the detained were at no time advised of charges being brought against them, nor were they ever brought before a lawful court of Nigeria.  It has been reported that the identity of these community leaders was discovered through extensive investigations by both Royal Dutch private security teams and Nigerian military intelligence.  After the regular protests began, the two groups met weekly to share intelligence and to strategize about how to best protect Royal Dutch's assets in Ogoni.