The question of whether or not multinational corporations should enjoy the same rights as individual citizens has been much in the arena of public debate lately, the focus primarily being on if they should be granted the ability to directly fund political campaigns in the same way that individuals can. Predominant public opinion is opposed to this, but according to the U.S. Supreme Court, in the eyes of the law corporations are free to do so. In 2010, the Citizens United case ruling determined that under the First Amendment, corporations had the same rights as citizens, freeing them to pay for political advertising. This certainly means that corporations can shine the spotlight on politicians who are willing to cater to their interests.
Regardless of how unfair this may seem to so many, ‘corporate personhood’ is, after all, now the law. So considering this, if corporations have been given the ability under law to enjoy the same rights as individuals, then shouldn’t they also share the same responsibilities and face the same punishments as individuals? If a corporation funded a foreign government that tortured, oppressed or even murdered their own citizens, therefore aiding and abetting in these crimes, shouldn’t they be able to be held accountable in U.S. courts for complicity? Well it’s a valid point and is what we’re seeing right now being brought to the Supreme Court in the case of Kiobel v. Royal Dutch Petroleum.
An Ogoni man on Shell’s oil development site in the Niger Delta
Between 1993 and 1995 MOSOP, a coalition of Nigerian environmental and human rights activists fighting against Royal Dutch Shell’s destructive oil development in their region, faced a violent crackdown carried out by the Nigerian government’s paramilitary forces. Over 800 people were killed, and 30,000 violently displaced from their homes. The founder of MOSOP – author, playwright and political activist Ken Saro-Wiwa – was a key figure in the protest movement, campaigning that the people of Ogoniland, one of the largest oil producing regions in Nigeria, should be compensated with a percentage of the oil profits, with the claim that the devastation to the land was ruining the livelihood of the indigenous people living there. The Nigerian government sent in its forces and eventually arrested Saro-Wiwa claiming that the disruption of oil production was considered treason. Ken Saro-wiwa and 8 other activists, including another prominent Nigerian, Dr. Barinem Kiobel, were hanged by the military junta in 1995.
In the last decade, it has been well documented and disclosed that Shell had been paying the Nigerian military and police forces, as well as providing vehicles to usher around top military commanders and their lieutenants who were responsible for the rape and torture of Ogoni activists. Shell has admitted that it did pay these commanders but that the money was meant as ‘field allowances’ and they had no knowledge of the abuses being carried out by the Nigerian police and military forces. Shell has also been accused of bribing witnesses to give false testimonies against Saro-Wiwa and Dr. Kiobel which led to their arrest and hanging.
In 2009, family members of Ken Saro-Wiwa attempted to charge Shell in a US court using the Alien Tort Statute (ATS) which had been previously used to bring justice to Holocaust survivors who sued the Nazi corporation I.G. Farben which profited from prison labour during World War II. But this case, Wiwa v. Shell, was settled out of court with Shell paying $15.5 million to the plaintiffs. When this furthered suspicion that Shell was in fact complicit in the murders, the amount was publicly declared by the company to have been a ‘humanitarian gesture’. Lawyers for the defendant were set to use the argument that Shell could not be charged for murder or human rights abuses due to the fact that as a corporate entity they could not be tried in the same way as a conscious human being could.
Dr. Kiobel’s wife outside the Supreme Court on Monday
This brings us back to the Citizens United ruling of 2010. Since corporations are considered ‘persons’ in the eye of the law, shouldn’t they now be held accountable for aiding and abetting murder? On Monday, October 1st, 2012 this very question was brought before the U.S. Supreme Court in a new case: Kiobel vs. Royal Dutch Petroleum. Shell is arguing that since it is not a person it is not subject to ATS but opposition lawyers are arguing that since Royal Dutch has been granted the ability to fund campaigns just as individuals are, Shell should also be held responsible for acquiescing to a foreign government that abused their own people. The Supreme Court is set to issue its decision on the Kiobel hearing within a few months, but until then we can look at this as a warning that when you attempt to weasel your way through loopholes in the law, the law might just as well backfire. What goes around comes around, even for corporations.
